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2015 DIGILAW 238 (KAR)

ARAVINDA RAO H. T. v. P. DEVDAS SHETTY

2015-03-04

A.N.VENUGOPALA GOWDA

body2015
Order This petition is preferred impugning an order dated 24.03.2009 passed by the II Addl. Sessions Judge, D.K. Mangaluru, whereby Criminal Revision Petition 131/2008 filed by respondent No.1 herein was allowed. 2. Brief facts necessary for disposal of this petition are that, respondent No.1 filed private complaint under S.200 Cr.P.C. against the petitioner and seven others, for the offences punishable under Ss.434, 447, 427 read with Ss.34 and 109 of IPC. Learned Magistrate after recording sworn statement of the complainant, by an order dated 27.03.2008 dismissed the complaint. Feeling aggrieved, Crl.R.P. 131/2008 was filed in the Sessions Court, D.K. Mangaluru. By an order dated 24.03.2009, said petition was allowed, impugned order was set aside and the case was remitted to the Trial Judge to proceed with the matter. The petitioner, arrayed as accused No.4 in the complaint, has challenged the said order. 3. Sri S. Vishwajith Shetty, learned advocate contended that the court below has committed illegality in allowing the revision petition and setting aside the impugned order without giving an opportunity of hearing to the person shown as accused in the complaint. Learned counsel pointed out that the persons shown as accused in the complaint were not impleaded as respondents in the revision petition and thereby denying opportunity of hearing. He placed reliance on the decision rendered by the Apex Court in ‘MANHARIBHAI MULJIBHAI KAKADIA & ANR. Vs. SHAILESHBHAI MOHANBHAI PATEL & ORS., (2012) 10 SCC 517 and submitted that the revision petition has been illegally allowed. 4. Sri Sandesh J. Chouta, learned advocate, and Sri Vijaykumar Majage, learned HCGP appearing for the respondents, on the other hand submitted that the case having been remitted to the Magistrate to proceed in accordance with law, it is unnecessary to interfere with the impugned order. 5. Considered the rival contentions and perused the record. The point for consideration is whether the impugned order is illegal? 6. Undeniably, the petitioner herein was shown as accused No.4 in P.C. No.196/2007, filed by respondent No.1 herein. The Magistrate having taken cognizance and directed registration of the private complaint and having recorded the sworn statement, has passed an order dated 27.03.2008, dismissing the complaint filed alleging commission of offences punishable under Ss.434, 447, 427 read with Ss.34 and 109 of IPC. 7. The Magistrate having taken cognizance and directed registration of the private complaint and having recorded the sworn statement, has passed an order dated 27.03.2008, dismissing the complaint filed alleging commission of offences punishable under Ss.434, 447, 427 read with Ss.34 and 109 of IPC. 7. In MANHARIBHAI’s case (supra), 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 an order of the Magistrate dismissing the complaint under Section 203 of the Criminal Procedure Code, 1973 (for short “the Code”), held 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. xxxxx xxxxx xxxxx 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 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 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. 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 pre-process stage or post process stage.” xxxxx xxxxx xxxxx 53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan ((2014) 13 SCC 472), Raghu Raj Singh Rousha ((2009) 2 SCC 263) and A.N. Santhanam ((2012) 12 SCC 321). We hold, as it must be, that in a revision petition preferred by the 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 the 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.” (emphasis supplied) 8. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.” (emphasis supplied) 8. In the instant case, challenge was laid to order dated 27.03.2008, by the complainant, in the revision petition filed before the Sessions Court. The persons shown as accused in the complaint were not impleaded as respondents. The Sessions Judge, without noticing the said material omission, by not granting any kind of opportunity of hearing to the persons in whose favour the order dated 27.03.2008 was passed by the learned Magistrate, has set aside the same and remitted the case. 9. The petitioner, who was accused No.4 in the complaint, cannot be deprived of hearing, in the face of the law laid down by the Apex Court, in the decision noticed supra. The impugned order is liable to be quashed on the said limited ground. Though other grounds have been raised in this petition, it is unnecessary to consider the same, as the matter will have to be decided by the Sessions Court by providing opportunity of hearing to the petitioner. In the result, petition is allowed and the impugned order is quashed. The matter is remitted to the Sessions Court. The petitioner and respondent No.1 shall appear before the II Addl. Sessions Judge, D.K. Mangaluru, on 30.03.2015 and take further orders. Respondent No.1, shall implead the petitioner as an additional respondent in Crl. R.P. No. 131/2008. Thereafter the Sessions Court shall hear and decide the case in accordance with law. All other contentions of both parties are kept open.