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Gujarat High Court · body

2017 DIGILAW 416 (GUJ)

Harshadkumar Premshankar Dave v. State of Gujarat

2017-02-17

AKIL ABDUL HAMID KURESHI

body2017
JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. Petitioners have challenged the order dated 31.03.2011, passed by the Sessions Court, Anand, in Criminal Revision Application No. 32 of 2010. Brief facts are as under. 2. At the relevant time, the petitioner No. 1 was the Police Sub-Inspector. Petitioners No. 2 and 3 were the constables, all serving at Bhadran police station. The respondent No. 2 herein had filed a private complaint before the Magistrate in the year 1995, alleging custodial violence against the petitioners. The Magistrate passed an order dated 04.11.1995 and dismissed the complaint. The private complainant thereupon filed a revision petition before the District Court. The District Court allowed such revision petition by an order dated 19.03.1997 and provided that the Magistrate shall proceed further under section 204 of the Criminal Procedure Code in accordance with law. Though the counsel for the petitioners would point out that this order was passed by the Sessions Court without hearing the petitioners, admittedly, this order was not challenged by the petitioners. 3. Pursuant to the said order of the Sessions Court, the learned Magistrate registered a Criminal Case No. 865 of 1997 against the petitioners and issued process against the accused. Once again, the complainant approached the Sessions Court by filing Criminal Revision Application No. 83 of 1997 contending that the case was a warrant triable case and therefore, the learned Magistrate committed an error in issuing process. In this revision petition also, the complainant had not joined the accused as respondents. This revision petition was disposed of by the Sessions Court by a judgment dated 28.10.1998 allowing the revision petition and the matter was sent back to the Magistrate with a direction to proceed in accordance with law under section 244 of the Criminal Procedure Code. This order also was never challenged by the petitioners. 4. In terms of the said order of the Sessions Court, the Magistrate framed charges against the petitioners under an order dated 04.07.2009 for offences punishable under sections 323, 504, 506(2) read with section 34 of Indian Penal Code. This order was challenged by the petitioners before the Sessions Court in Revision Petition No. 32 of 2010. In such revision petition, the petitioners had raised two main contentions. First contention was that the Sessions Court in the earlier round of litigations, had allowed the revision petitions of the complainant without hearing the accused. This order was challenged by the petitioners before the Sessions Court in Revision Petition No. 32 of 2010. In such revision petition, the petitioners had raised two main contentions. First contention was that the Sessions Court in the earlier round of litigations, had allowed the revision petitions of the complainant without hearing the accused. Second contention raised was that in any case, sanction as required under section 197(1) of the Criminal Procedure Code was not obtained. 5. The Sessions Court by the impugned judgment dated 31.03.2011, dismissed the revision petition. Decision of learned Single Judge of this Court in case of Prithi Paul Singh Sethi-Director of Ebyss Fiber 2 Fashion LT & Ors. v. Twist Spin Industry - Thro' Pramod Ramniklal Trivedi & Anr., reported in 2010 Cr.L.R. (Guj.) 795 was referred to. It was also noted that the revisional order was passed by the Sessions Court way back in the year 1998. Such order was never challenged by the petitioners. It was further observed that requirements of section 197 of the Criminal Procedure Code would not apply. 6. It is this order of the Sessions Court which the petitioner has challenged in the present petition. During the pendency of the petition, I am informed, petitioner No. 1 has expired. A copy of his death certificate is produced on record. Qua him therefore, the present petition and the criminal proceedings abate. 7. Having heard learned counsel for the parties and having perused documents on record, following aspects emerge. I. It is undoubtedly true that earlier, twice the original complainant had approached the Sessions Court by filing revision petitions and such revision petitions were allowed by the Sessions Court. In neither of these revision petitions, the present petitioners were joined as respondents. II. In case of Prithi Paul Singh Sethi (supra), Single Judge of this Court considered the requirement of hearing the accused in a revision petition filed by the complainant. In the said case, the Magistrate had accepted the police report and dismissed the complaint filed by the complainant. It was this order the complainant had challenged before the Sessions Court by filing a revision petition. In this background, the question arose whether the accused were necessary parties in such revision petition. Noticing that different High Courts had taken different view, this Court had held as under: "11. It was this order the complainant had challenged before the Sessions Court by filing a revision petition. In this background, the question arose whether the accused were necessary parties in such revision petition. Noticing that different High Courts had taken different view, this Court had held as under: "11. From the above judicial pronouncements it can be culled out that at a stage when Magistrate is holding an inquiry under Section 202 of the Code of Criminal Procedure and deciding for himself what further action should be taken, accused has no role to play, has no right of audience. It is on the basis of materials on record that the Magistrate would proceed either to dismiss the complaint under Section 203, if he is of the opinion that there is no sufficient ground for proceeding or would issue process under section 204 if he was of the opinion that such material was available. If the higher Court i.e. the Court of Sessions or High Court is examining the legality of an order passed by the Magistrate dismissing the complaints under Section 203 of the Code of Criminal Procedure, question germane would be whether the Magistrate was justified in coming to the conclusion that there is no sufficient grounds for proceeding. In other words Court would be examining the justification of such a conclusion of the Magistrate. If the Court concurs with such decision of the Magistrate, order would be upheld. If the Court finds that Magistrate committed an error, order under Section 204 may ensue. Essentially therefore, all that the scope of inquiry in revision application of such a nature would be whether there was a case as held by the Magistrate for dropping proceeding under Section 203 or for issuance of process contrary to what was concluded by the learned Magistrate. I fail to see if accused was not entitled to be heard when the Magistrate passed such an order how he can claim a right of audience when higher Court examines legality of such an order. To put it differently, if learned Magistrate was of the opinion that there were sufficient grounds to issue process under Section 204 surely, accused had no right to be heard before such order was passed. To put it differently, if learned Magistrate was of the opinion that there were sufficient grounds to issue process under Section 204 surely, accused had no right to be heard before such order was passed. All that the higher court would do if it disagreed with the view of the learned Magistrate would be to pass such orders which in any case Magistrate could himself have passed without hearing the accused. 12. Issue can be looked from slightly different angle. As already observed, sub-section(2) of section 401 requires the accused or other person to be given an opportunity of being heard in case the Court proposes to pass an order to the prejudice of such person. It is this requirement of sub-section (2) of Section 401 which has been incorporated in sub-section (2) of Section 399 insofar as Sessions Court is considered. Fundamental question is if the Court of Sessions was reversing the order of Magistrate dropping proceedings under Section 203 and instead issued process under Section 204 on private inquiry would that be an order to the prejudice of the accused? 13. In view of judicial pronouncements noted above, I am of the opinion that no such requirement can be read since I find that till the Magistrate crosses the stage under Section 204 of the Code of Criminal Procedure, he cannot be sated to passing any order to the prejudice of accused. Any order passed by the higher Court in revisional powers therefore, necessarily would not be covered by said apprehension. 14. I am conscious that judicial opinion on this issue is not unanimous. Several High Courts have taken a different view from what I have adopted and view of number of High Courts surely carries a considerable persuasive value for me. However, I also find that some other High Courts notably Delhi High Court in case of Prakash Devi & ors. (supra), has taken contrary view with which I concur. For the reasons stated above, I am unable to persuade myself to adopt view of Bombay High Court in case of Shriram Nagordhar Mahajan & ors. (supra) and other similar decisions. I find myself in respectful agreement with decision in case of Delhi High Court in case of Prakash Devi & ors. (supra). 15. For the reasons stated above, I am unable to persuade myself to adopt view of Bombay High Court in case of Shriram Nagordhar Mahajan & ors. (supra) and other similar decisions. I find myself in respectful agreement with decision in case of Delhi High Court in case of Prakash Devi & ors. (supra). 15. In the result, I do not find that Sessions Court breached any statutory requirement while allowing the revision application of respondent No. 1 herein and interfering with the order passed by the Magistrate by which proceedings were dropped against the present petitioner." 8. The position however, has been settled; by virtue of later Supreme Court judgment in case of Manharibhai Muljibhai Kakadia and Another v. Shaileshbhai Mohanbhai Patel and others, reported in (2012) 10 SCC 517 . It was held that in a complaint case when the complainant files a revision petition before the Sessions Court against the order of the Magistrate, the accused/suspect would have to be heard. It was held and observed as under: "58. We are in complete agreement with the view expressed by this Court in P. Sundarrajani, Raghu Raj Singh Rousha and A.N. Santhanam. 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 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. 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 crime have, however, no right to participate in the proceedings nor they are 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." 9. Thus, so far as legal position is concerned, there is no doubt or dispute possible. However, in the present case one cannot loose sight of the fact that the Sessions Court had allowed the revision petition of the original complainant by an order dated 28.10.1998. All along this order was never challenged by the petitioners. Even in the present proceedings, there is no formal challenge to the said order. As long as the said order of the Sessions Court survives, it was not open for the Magistrate to ignore it, nor was it possible for the Sessions Court in the later revision petition filed by the present petitioners, to overrule it. It was the onus on the petitioners to challenge the said order at the earliest opportunity. Having not done that, the petitioners cannot press the ground of non hearing by the Sessions Court in the subsequent proceedings. 10. Coming to the requirements of section 197(1) of the Code, it prima-facie appears that the said provision applies to a case where a person who is or was a Judge or a Magistrate or a public servant, not removable from his office, say by or with the sanction of the Government. On this premise itself, it is doubtful whether the surviving petitioners who were the constables, would be entitled to the protection envisaged under section 97 of the Code. More importantly, the sanction would be necessary in case such a person is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The question therefore would arise whether the allegation of custodial violence, could be one committed by the official in discharge of his duty. More importantly, the sanction would be necessary in case such a person is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The question therefore would arise whether the allegation of custodial violence, could be one committed by the official in discharge of his duty. Such a question including that of requirement of sanction can be examined during the course of trial itself. Under the circumstances, while keeping the question of necessity of a sanction and the effect of not obtaining sanction open, this revision petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated. Petition Dismissed.