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2015 DIGILAW 1740 (SC)

Chhatradhari Ram v. State of Jharkhand

2015-12-15

UDAY UMESH LALIT, V.GOPALA GOWDA

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ORDER : Leave granted. Pursuant to petition dated 01.04.2008 filed by the complainant under Section 156(3) of Code of Criminal Procedure (for short 'CrPC), appropriate directions were issued by the Judicial Magistrate and crime was registered against the present appellant, for having committed offence under Section 376 of the Indian Penal Code (for short 'the Code').In the investigation that ensued thereafter, a final report under Section 173(8) of CrPC was filed by the investigating officer on 30.06.2008 stating inter alia that the allegations made by the complainant were found to be false. In the circumstances, the complainant preferred a protest petition, which was treated as Complaint Case No.1439 of 2008 and the same was transferred to the Court of Judicial Magistrate, 1st Class, Giridih. 2. The complainant had filed list of witnesses, which he proposed to be examined in trial. It reflects from the record that pre-summoning evidence was recorded by the Magistrate, who thereafter dismissed the complaint holding that there were material contradictions in the statements of witnesses and that the case appeared to be a false case. 3. This order of the Magistrate was challenged by the complainant by preferring Criminal Revision No. 98 of 2010 before the Additional Sessions Judge, Giridih. The revision was accepted and the order passed by the Magistrate was set aside and the Magistrate was directed to conduct further inquiry and to record a fresh order on the basis of the material available on record. In the revision application, the accused was not made a party and the order of the revisional court was passed without even hearing the accused. This order, in a further challenge, has been sustained by the High Court, which is presently under challenge before us. 4. Law on the point stands settled by a judgment of three-Judge Bench of this Court in the case of Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors., (2012) 10 SCC 517 . Relevant paras 46, 48 and 53 of the same are quoted hereunder: "46. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, up to the stage of issuance of process, the accused cannot claim any right of hearing. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, up to the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. 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. xxx xxx xxx 48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203 – although it is at preliminary stage – nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed crime. 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 the 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 Section 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of 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 pre-process stage or post process stage. xxx xxx xxx 53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan v. R. Vidhya Sekar, (2004) 13 SCC 472 , Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd., (2009) 2 SCC 363 and A. N. Santhanam v. K. Elangovam, (2012) 12 SCC 321. xxx xxx xxx 53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan v. R. Vidhya Sekar, (2004) 13 SCC 472 , Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd., (2009) 2 SCC 363 and A. N. Santhanam v. K. Elangovam, (2012) 12 SCC 321. We hold, as it must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled." 5. In the light of the principle as laid down by this Court, the persons who are arrayed as accused in a complaint, have a right to be heard in a revision petition preferred by the complainant challenging the legality of the order of dismissal passed by the Magistrate under Section 203 of Cr.P.C. It is an admitted fact in the instant appeal that the accused was neither made a party nor any notice was issued to him. The order passed by the revisional court was completely in the absence of the accused and as such, the order needs to be set aside. 6. We therefore, allow the appeal, set aside the order passed in revision as well as the order passed by the High Court and Criminal Revision No.98 of 2010 stands restored. The matter shall now be dealt with by the Revisional Court, which shall issue notice to the accused and decide the case in accordance with law. 7. We make it very clear that we have not expressed any opinion on the merits of the case and the Revisional Court shall decide the case on its own merits.