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2014 DIGILAW 1063 (KAR)

Saritha Pappu v. State of Karnataka

2014-12-10

A.N.VENUGOPALA GOWDA

body2014
ORDER 1. Respondent No. 2 herein, filed a private complaint on 17.02.2003, against the petitioners herein and two others, alleging commission of offences punishable under Ss. 406, 420 and 120B of IPC. On 18.06.2003, learned Magistrate registered the case and referred the same for investigation. The Investigating Officer having filed a charge-sheet, cognizance was taken and C.C. No. 8845 of 2005 was registered. In response to the summons issued, the petitioners entered appearance and filed an application on 17.03.2007, under S.239 of Criminal Procedure Code, 1973 (for short, the Code), seeking discharge. By an order dated 02.05.2008, the learned Magistrate allowed the application and discharged all the accused. 2. Assailing the said order, Criminal Revision petition filed by respondent No. 1 herein, having been allowed on 30.12.2011 and the impugned order therein having been set aside and the learned Magistrate having been directed to frame the charge and proceed with the case, this petition was filed. 3. Sri U.S. Yogesh Kumar, learned advocate, contended that the Sessions Judge did not serve notice on the petitioners, who were arraigned as accused Nos. 3 and 4 in C.C. No. 8845 of 2005. He submitted that without providing an opportunity to the petitioners, the learned Judge has exercised the revisional jurisdiction and reversed the order impugned in the petition and directed the Trial Judge to frame the charge and proceed further in the case. He submitted that the impugned order being arbitrary and illegal, interference is called for. 4. Sri B.J. Eshwarappa, learned HCGP, on the other hand, stoutly defended the impugned order. He argued that the impugned order being one of remand, the petitioners can put forth their case for consideration before the learned Magistrate and in the circumstances, no interference in this petition is called for. 5. Record of Criminal R.P. No. 415 of 2008 was secured from the Court below to find out, whether notice of the case was served on these petitioners, who were the respondents therein or whether they were represented by an advocate, since the cause title of the impugned order shows Sri Manjunath, Advocate, as having appeared for the respondents therein. A perusal of the record did not show the notice of the petition having been served on any of the respondents shown therein. The record does not contain vakalath of any advocate much less that of Sri Manjunath. 6. A perusal of the record did not show the notice of the petition having been served on any of the respondents shown therein. The record does not contain vakalath of any advocate much less that of Sri Manjunath. 6. By an Order dated 02.05.2008, the petitioners and the other two accused were discharged by the learned Magistrate, in respect of the offences punishable under S.406 and 420 of IPC. The prosecution having questioned the said order in Criminal R.P. No. 415 of 2008 in the City Civil and Sessions Court, assigned to FTC - VII, for consideration and decision, was allowed on 30.12.2011, without service of notice and providing opportunity of hearing to the petitioners herein and also the other co-respondents in the revision petition. 7. In view of the rival contentions and the record of the case, the point for consideration is, whether the impugned order is violative of S.398 of the Code and calls for any interference? 8. Section 398 of the Code being relevant, the same reads thus:- “398. Power to order inquiry. On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub-section (4) of section 204 or into the case of any person accused of an offence who has been discharged:- Provided that no Court shall make any direction under this section for inquiry in to the case of any person who has been discharge dun less such person has had an opportunity of showing cause why such direction should not be made.” (Italicized for emphasis) 9. In Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517 , Apex Court, while considering a question, whether a suspect is entitled to hearing by the revisional court, in a revision preferred by the complainant challenging the order of the Magistrate, has dealt with the right of hearing given to an accused under subsection (2) of S.401 of the Code. It has been held therein as follows:- “46. It has been held therein as follows:- “46. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. “48. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get right of hearing before the Revisional Court although such order was passed without their participation. The right given to accused or the other person under Section 401(2) of being heard before the Revisional Court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of the complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2) of the Code. The stage is not important whether it is preprocess stage or post process stage.” (Emphasis supplied) 10. In the instant case, order passed by the learned Magistrate, on 2.5.2008, discharging the accused – petitioners, of the offences punishable under Ss. 406 and 420 of IPC has been reversed by the Court below, without service of notice and providing opportunity of hearing to them. In the instant case, order passed by the learned Magistrate, on 2.5.2008, discharging the accused – petitioners, of the offences punishable under Ss. 406 and 420 of IPC has been reversed by the Court below, without service of notice and providing opportunity of hearing to them. By the impugned order herein, the Trial Court was directed to frame the charge, in respect of the offences under Ss.406 and 420 of IPC and proceed with the case against the accused. The impugned order is ex-facie unsustainable in law, on account of not giving an opportunity to the petitioners herein to defend their case. Learned Sessions Judge has violated the principles of natural justice and also the requirement of law of hearing a party before passing an adverse order. There is violation of the express provision contained in the proviso under S.398 of the Code. Hence, the impugned order being wholly arbitrary and illegal, warrants interference. For the foregoing discussion, the impugned order is set aside and the matter is remitted and the Sessions Court shall issue notice to both parties and thereafter, hear and decide the Criminal revision petition in accordance with law. The LCR be returned to the Sessions Court, forthwith.