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2025 DIGILAW 434 (GUJ)

Kadar Ibrahim Dal v. State Of Gujarat

2025-06-11

J.C.DOSHI

body2025
ORDER : J. C. DOSHI, J. 1. Heard learned advocate Mr. Nandish H. Thackar appearing for the petitioners. Respondent No.2 though served initially was represented by learned senior advocate Mr. H. S. Tolia, however, later on he withdrew his representation, therefore, a fresh notice was issued to Respondent No.2 and he did not choose to remain present and to contest the present application. I have also heard learned APP Mr. Chintan Dave. 2. Essentially, this petition under Section 226 and 227 of Constitution of India read with Section 482 of Code of Criminal Procedure questions the legality and propriety of Judgment and Order passed in Criminal Revision No. 24 of 2017 by the Principal District and Sessions Judge, Veraval, whereby the learned Sessions Judge quash and set aside the order passed by the Judicial Magistrate First Class, Talala in Criminal Inquiry No.3 of 2016 and remanded the matter to the trial Court for fresh hearing. In Criminal Inquiry No.3 of 2016, the learned JMFC has refused to issue process in a private complaint filed for the offence punishable under Section 406 , 420, 465, 467, 468, 547, 219, 114 and 120(b) of the INDIAN PENAL CODE . 3. Learned advocate Mr. Nandish H. Thackar made twofold submissions. Firstly, he submits that the learned Sessions Court has committed serious mistake and gross error in allowing the revision, ignoring the provision of Section 401(2) of the Code of Criminal Procedure. The present petitioners who are proposed accused have not been joined as party in the revision and have not been given an opportunity of hearing. Therefore, the statutory breach committed by the learned Sessions Court is sufficient enough to quash and set aside the impugned judgment and order. Secondly, he would submit that, as of now, the dispute between the parties is settled on the civil side and in Regular Civil Appeal No.10 of 2015, party has placed on record the compromise and pursuant to that, aggrieved persons have withdrawn the appeal. Learned advocate Mr. Nandish H. Thackar has placed on record the order passed by the learned 3rd Additional District Judge, Veraval in Regular Civil Appeal No.10 of 2015. 4. Learned advocate Mr. Nandish H. Thackar to fortify his argument, refers to the judgment of Hon’ble Apex Court in case of Manharbhai Muljibhai Kakadiya and others Vs. Shaileshbhai Mohanbhai Patel and others 2012 (10) SCC 517 . 5. 4. Learned advocate Mr. Nandish H. Thackar to fortify his argument, refers to the judgment of Hon’ble Apex Court in case of Manharbhai Muljibhai Kakadiya and others Vs. Shaileshbhai Mohanbhai Patel and others 2012 (10) SCC 517 . 5. Mainly, on above submissions, he submits to allow this petition. 6. Learned APP in his utter fairness submits to remand the matter for breach of the provision of Section 401(2) of Code of Criminal Procedure. 7. Heard the learned advocates from both the sides and considered the ratio laid down by the Apex Court in Manharbhai Muljibhai Kakadiya and others (supra) and more particularly in para 48 to 53 which are extracted here under: “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 the 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 the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the 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. 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 the 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. 49. In P. Sundarrajan a two-Judge Bench of this Court was concerned with a case where a complaint under Section 420 IPC came to be dismissed by the Judicial Magistrate. Against the order of dismissal of the complaint, the complainant preferred revision petition before the High Court. The High Court was of the view that no notice was necessary to the suspects for disposal of the revision and set aside the order of the Magistrate and directed the Magistrate to proceed with the complaint afresh in accordance with law. Against the order of the High Court, the suspects approached this Court under Article 136. The Court granted leave and allowed the appeal, set aside the order of the High Court and sent the matter back to the High Court with a direction to issue proper notice to the persons accused of the crime in the complaint and proceed with the revision petition after affording them a reasonable opportunity of hearing. This Court in paras 5 and 6 of the Report held as under: (P. Sundarrajan case, SCC pp. 472-73) "5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order. 6. 472-73) "5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order. 6. We have, therefore, no hesitation in allowing this appeal, setting aside the impugned judgment and remanding the matter to the High Court to issue proper notice to the appellant herein who is the respondent in the criminal revision petition before it and afford him a reasonable opportunity of hearing and to pass appropriate orders. The appeal is allowed." 50. In Raghu Raj Singh Rousha a two-Judge Bench of this Court was faced with a question whether in the facts and circumstances of the case the High Court in exercise of its jurisdiction under Sections 397 and 401 of the Code was justified in passing an order in the absence of the accused persons. That was a case where a complaint was filed under Section 200 of the Code in respect of the offences punishable under Sections 323, 382, 420, 465, 468, 471, 120-B, 506 and 34 IPC. Along with the complaint, an application under Section 156(3) was also made. The Metropolitan Magistrate passed an order refusing to direct investigation under Section 156(3) and the complainant was asked to lead pre-summoning evidence. The complainant aggrieved by the order of the Metropolitan Magistrate filed a revision petition before the High Court. The High Court with the consent of the APP appearing for the State set aside the order of the Metropolitan Magistrate with a direction to him to examine the matter afresh after calling for a report from the police authorities. It is from this order that the matter reached this Court at the instance of the suspect/accused. The Court observed that if the Metropolitan Magistrate had taken cognizance of the offence and issuance of summons upon the accused persons had been merely postponed, in a criminal revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court. 51. The Court observed that if the Metropolitan Magistrate had taken cognizance of the offence and issuance of summons upon the accused persons had been merely postponed, in a criminal revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court. 51. Sections 397, 399 and 401 were noticed by this Court and so also few earlier decisions including Chandra Deo Singh, Vadilal Panchal16, P. Sundarrajan and then in paras 22 and 23 of the Report, the Court held as under: (Raghu Raj Singh Rousha case, SCC p. 369) "22. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156(3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code. 23. We, therefore, are of the opinion that the impugned judgment cannot be sustained and is set aside accordingly. The High Court shall implead the appellant as a party in the criminal revision application, hear the matter afresh and pass an appropriate order." 52. In a comparatively recent order in A.N. Santhanam a two-Judge Bench of this Court was concerned with a question, whether the High Court committed an error in disposing of the criminal revision petition filed by the complainant without any notice to the accused. On behalf of the accused/suspect, it was argued that the High Court committed the error in disposing of the criminal revision without any notice to him. On the other hand, on behalf of the complainant it was argued that no notice as such was required to be issued to the accused as it was at the stage of taking cognizance. The Court considered Section 401, particularly, sub-section (2) thereof and held as under: "A plain reading of clause (2) of the said provision makes it abundantly clear that the High Court in exercise of its revisional power cannot pass any order which may cause prejudice to the accused or other persons unless he has an opportunity of being heard either personally or by pleader in his own defence. In the instant case it cannot be said that the rights of the appellant have not been affected by the order of revision. The complaint filed by the respondent which was rejected for whatsoever reasons has been resurrected with a direction to the Magistrate to proceed with the complaint. Undoubtedly, whether the appellant herein was an accused or not but his right has been affected and the impugned order has resulted in causing prejudice to him. In the circumstances, we are of the view that the decision cited by the learned counsel for the respondent has no application whatsoever to the fact situation. In fact the decision of this Court was in a case where the complaint was taken cognizance of and not a case where the complaint was rejected. In the circumstances, we hold that the High Court committed an error in allowing the revision filed by the respondent herein without any notice to the appellant. For the aforesaid reasons, the impugned order is set aside and Criminal Revision Case No. 1045 of 2003 shall stand restored to its file for hearing and disposal on merits after notice to the appellant herein." 53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. 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. 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.” 8. Applying ratio stated aforesaid, the petition deserves consideration and accordingly is allowed. The impugned order passed by the Revision Court in Criminal Revision No.24 of 2017 is hereby quashed and set aside. Petitioners are ordered to be joined as respondent No.5, 6 and 7 in the Criminal Revision No.24 of 2017 and accordingly, the office of the learned Sessions Court shall make correction in the cause title of the Revision, after it being restored to its file. The petitioners are permitted to agitate their submissions. 9. With the aforesaid directions, petition is disposed of accordingly with the clarification that, this Court has not examined any further merits of the case. However, the learned Sessions Court will examine the issue that the compromise arrived between the parties and the first appeal No.10 of 2015 is disposed of.