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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 ‘Code’).- 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 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.

Edificio del Decanato CJM

Edificio del Decanato CJM (Photo credit: Wikipedia)

REPORTABLE

 

 

 

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

 

 

CRIMINAL APPEAL NO.  1577   OF 2012

(Arising out of SLP (Crl.) No. 446 of 2007)

 

 

 

Manharibhai Muljibhai Kakadia & Anr.               …. Appellants

 

Versus

 

Shaileshbhai Mohanbhai Patel & Ors.                    ….Respondents

 

 

 

 

 

 

 

 

JUDGMENT

 

 

R.M. Lodha, J.

 

 

Leave granted.

2.          The sole  question for consideration is, 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

‘Code’).

3.          It is not necessary to set out the facts in detail.  Suffice  it

to say  that  Shaileshbhai  Mohanbhai  Patel,  respondent  no.  1,  filed  a

criminal complaint on 15.5.2004 in the Court of Chief  Judicial  Magistrate,

Surat (for short ‘CJM’) against Manharibhai  Muljibhai  Kakadia  and  Paresh

Lavjibhai  Patel,  appellants,   alleging  that  they  had   pre-planned   a

conspiracy; created forged documents bearing signatures of the  complainant,

his father and uncle, two sons of his uncle and his elder brother  and  have

used the said documents as true and genuine by  producing  the  same  before

the District Registrar, Cooperative Society, Nanpura, and  by  making  false

representation obtained  registration  of  Indoregency  Cooperative  Housing

Society Limited and  by  doing  so  the  accused  (appellants)  have  caused

financial loss and physical and mental agony  to  the  complainant  and  his

family members and have deceived the complainant and his family  members  by

obtaining  huge  financial   advantage   by   taking   possession   of   the

complainant’s property. It was,  thus,  alleged  that  the  appellants  have

committed offences punishable under Sections 420, 467, 468, 471  and  120-B,

IPC.

4.          The CJM in exercise of his power under Section 202 of  the  Code

by his order dated 18.6.2004 directed the enquiry to be made by  the  Police

Inspector, Umra Police Station, into the  allegations made in the  complaint

and submit his report within thirty days therefrom.

5.          The Investigating  Officer  investigated  into  the  matter  and

submitted ‘C’ Summary Report. In the opinion of the  Investigating  Officer,

the disputes between the parties were of civil nature  and  no  offence  was

made out.

6.          The CJM on 16.4.2005 accepted the ‘C’ Summary  Report  submitted

by the  Investigating  Officer.  That  order  has  been  challenged  by  the

Complainant in a criminal revision application filed under Section 397  read

with Section 401 of the Code in the Gujarat High Court.

7.          The appellants  having  come  to  know  of  the  above  criminal

revision  application  made  an  application  for  joining  them  as   party

respondents so that they can be heard in the matter.

8.          On  5.8.2005,  the  Single  Judge  of  the  Gujarat  High  Court

dismissed the application made by the appellants.   It is  from  this  order

that present appeal has arisen.

9.          We have heard Mr. Shyam Divan, learned senior  counsel  for  the

appellants  and Ms. Meenakshi Arora, learned counsel for respondent no. 1.

10.         Mr. Shyam Divan,  learned  senior  counsel  for  the  appellants

argued that the plain language of Section 401(2) of the  Code  entitles  the

appellants to be heard in the criminal revision  application  filed  by  the

respondent no. 1 challenging the order of  the  CJM.  According  to  learned

senior counsel, appellants  have  a  right  to  be  heard  in  the  revision

application filed by the complainant as no  order  could   be  made  to  the

prejudice of  the  accused  or  the  other  person  unless  he  has  had  an

opportunity of being heard under  Section  401(2)  of  the  Code.    It  was

argued on behalf of the appellants that the  result  of  acceptance  of  the

‘C’ Summary Report is that criminal proceedings launched by the  complainant

have come to an end  and  if  the  revision  application  preferred  by  the

complainant is accepted, that would  have  the  effect  of  revival  of  the

complaint and setting the criminal process back in  motion  which  would  be

definitely prejudicial to the appellants and  before  any  such  prejudicial

order is passed, the appellants ought to be heard.  In support of the  above

contentions, learned senior counsel relied upon decisions of this  Court  in

P. Sundarrajan and others v. R. Vidhya Sekar[1], Raghu Raj Singh  Rousha  v.

Shivam  Sundaram  Promoters  Private  Limited  and  another[2]  and  A.   N.

Santhanam v. K. Elangovan[3].

11.         Mr. Shyam Divan, learned senior counsel would  also  argue  that

expression, “in his own defence” in  Section  401  (2)  is  a  comprehensive

expression which also means ‘in defence of the  order’  under  challenge  in

revisional jurisdiction. Learned senior counsel submitted  that  “prejudice”

may cover wide range of situations and must be considered  in  wider  sense.

Section 401 does not make any  distinction  between  pre-process  stage  and

post-process stage. Sub-section (2) of Section 401 is applicable  regardless

and whether or not process has been issued under Section 204 of the Code.

12.          It  was  also  submitted  on  behalf  of  the  appellants  that

cognizance had been taken by the  CJM.   Cognizance  is  not  equivalent  to

issuance of process; it is taken prior to issuance  of  process.  Cognizance

is taken at the initial stage when the Magistrate applies his judicial  mind

to the facts mentioned in the complaint or to  the  police  report  or  upon

information received  from  any  other  person  that  an  offence  has  been

committed. In this regard, reliance was placed on Jamuna  Singh  and  others

v. Bhadai Sah[4] , Kishun Singh and others v. State of  Bihar[5]  and  State

of Karnataka and another v. Pastor P. Raju[6].

13.         Ms. Meenakshi Arora, learned counsel for the respondent  no.  1,

on the other hand, stoutly defended the order of the High Court.  She  would

argue that since  CJM   had  not  taken  cognizance  of  the  offence,   the

appellants have no role to play at any stage prior to issuance  of  process.

She referred to certain provisions,  including Chapters  XIV,  XV  and  XVI,

and also Sections 156, 173, 190 and 202 of the  Code.  Learned  counsel  for

the respondent no. 1 argued that since the  subject  revision  petition  had

been filed by the respondent no. 1 against the dismissal  of  the  complaint

at a pre-cognizance stage,  the appellants do not have any right of  hearing

under the provisions of Section 401(2) of the  Code.  In  this  regard,  the

learned counsel placed reliance on Chandra  Deo  Singh  v.  Prokash  Chandra

Bose and another[7], Smt. Nagawwa v.  Veeranna  Shivalingappa  Konjalgi  and

others[8], Adalat Prasad v. Rooplal Jindal and others[9]  and  Mohd.  Yousuf

v. Afaq Jahan (Smt.) and another[10].

14.         Learned  counsel  for  the  respondent  no.1  also  relied  upon

decisions of Punjab and Haryana High Court, Madhya Pradesh  High  Court  and

Gujarat High Court in support of her submission that accused  has  no  right

of hearing under Section 401(2) in a revision against an order  by  which  a

complaint has been dismissed by the Magistrate  under  Section  203  of  the

Code. She relied  upon  Gurdeep  Singh  v.  State  of  Haryana[11],  Panatar

Arvindbhai Ratilal v. State of Gujarat  and  others[12],  Ratanlal  Soni  v.

Kailash Narayan Arjariya[13]. She also relied upon a decision of Delhi  High

Court in Tata Motors  Limited  v.  State  (Criminal  Revision  Petition  No.

16/2008 and Criminal LPA 4301/2008) decided on  12.2.2009  wherein  decision

of this Court in Raghu Raj Singh Rousha2  has been distinguished.

15.         Learned counsel for the  respondent  no.  1  would  submit  that

decision of this Court in P. Sundarrajan1  was not applicable  to  the  fact

situation of the present case inasmuch as in that  case,  the  accused  were

party  in  the  revision  petition  whereas  in  the  subject  revision  the

appellants have not been allowed to be impleaded as  party  respondents  and

the impugned order has been  passed  on  the  application  for  impleadment.

While referring to A. N. Santhanam3, learned counsel for the respondent  no.

1 submitted that this case too was  not  applicable  to  the  facts  of  the

present case as in that case the complainants were  examined  under  Section

200 of the Code whereas in the present case the CJM  has  accepted  the  ‘C’

Summary Report under Section 173 after the investigation  was  done  by  the

police.

16.         In order to  appreciate  the  rival  submissions,  some  of  the

provisions of the Code need to  be  referred  to.  Section  156  deals  with

Police Officer’s power to investigate cognizable case. It reads as follows:

 

“S. 156.  Police Officer’s power to investigate cognizable case.

– (1) Any officer in charge of a police station may, without the

order of a Magistrate, investigate any cognizable case  which  a

Court having jurisdiction over the local area within the  limits

of such station would have power to inquire into  or  try  under

the provisions of Chapter XIII.

 

 

(2) No proceeding of a police officer in any such case shall at

any stage be called in question on the ground that the case  was

one which such officer was not empowered under this  section  to

investigate.

 

 

(3) Any Magistrate empowered under Section 190 may  order  such

an investigation as above mentioned.”

 

17.         Section 190 falls in Chapter XIV  and reads as under:

“S. 190. Cognizance of offences by Magistrates. – (1) Subject to

the provisions of this Chapter,  any  Magistrate  of  the  first

class,  and  any  Magistrate  of  the  second  class   specially

empowered in this  behalf  under  sub-  section  (2),  may  take

cognizance of any offence-

(a) upon receiving a complaint of facts  which  constitute  such

offence;

(b) upon a police report of such facts;

(c) upon information received  from  any  person  other  than  a

police officer, or upon his own knowledge, that such offence has

been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate  of

the second class to take cognizance  under  sub-section  (1)  of

such offences as are within his competence to  inquire  into  or

try.”

 

 

 

 

18.          Chapter  XV  of  the  Code  deals  with   the   complaints   to

Magistrates. It has four Sections, 200 to 203,  which read as under :

“S. – 200. Examination of Complainant.–  A  Magistrate  taking

cognizance of an offence on complaint shall examine  upon  oath

the complainant and the witnesses  present,  if  any,  and  the

substance of such examination shall be reduced to  writing  and

shall be signed by the complainant and the witnesses, and  also

by the Magistrate:

Provided that, when the  complaint  is  made  in  writing,  the

Magistrate need not examine the complainant and the witnesses-

(a) If a public servant acting or  purporting  to  act  in  the

discharge of his official  duties  or  a  court  has  made  the

complaint; or

(b) If the Magistrate makes over the case for inquiry, or trial

to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case  to

another  Magistrate  under  section  192  after  examining  the

complainant and the witnesses, the latter Magistrate  need  not

re-examine them.

 

 

S.  201.  Procedure  by  Magistrate  not  competent   to   take

cognizance of  the  case.-  If  the  complaint  is  made  to  a

Magistrate who is not  competent  to  take  cognizance  of  the

offence, he shall, –

(a) If the complaint is in writing, return it for  presentation

to the proper court with an endorsement  to that effect;

(b) If the complaint is not in writing, direct the  complainant

to the proper court.

 

S. 202. Postponement of issue of process.– (1) Any Magistrate,

on receipt of  a  complaint  of  an  offence  of  which  he  is

authorised to take cognizance or which has been  made  over  to

him under Section 192, may, if he thinks fit, and shall,  in  a

case where the accused is residing at a place beyond  the  area

in which he exercises his jurisdiction postpone  the  issue  of

process against the accused, and either inquire into  the  case

himself or direct 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:

 

 

Provided that no such direction  for  investigation  shall  be

made—

 

 

(a) Where  it  appears  to  the  Magistrate  that  the  offence

complained of is triable exclusively by the Court of  Sessions;

or

 

 

(b) Where the complaint has not been made by  a  Court,  unless

the complainant and the witnesses present (if  any)  have  been

examined on oath under section 200.

 

 

(2) In an inquiry under sub-section (1), the Magistrate may, if

he thinks fit, take evidence of witness on oath:

 

 

Provided that if it appears to the Magistrate that the offence

complained of is triable exclusively by the Court  of  Session,

he shall call upon the complainant to produce all his witnesses

and examine them on oath.

 

 

(3) If an investigation under sub-section (1)  is  made  by  a

person not being a police  officer,  he  shall  have  for  that

investigation all the powers  conferred  by  this  Code  on  an

officer in charge of a  police  station  except  the  power  to

arrest without warrant.

 

 

S. 203.  Dismissal  of  complaint.—If,  after  considering  the

statements on oath (if any)  of  the  complainant  and  of  the

witnesses and the result of the inquiry  or  investigation  (if

any) under Section 202, the Magistrate is of opinion that there

is no sufficient ground for proceeding, he  shall  dismiss  the

complaint, and in every such case he shall briefly  record  his

reasons for so doing.”

 

 

 

 

 

19.         Chapter XVI of the Code has Sections 204  to  210.  Section  204

deals with the issuance of process by the Magistrate. The process is  issued

by the  Magistrate  if  in  his  opinion  there  is  sufficient  ground  for

proceeding.

20.         Section 210 provides for procedure to be followed when there  is

complaint case and police investigation in respect of the same offence.   It

reads as under:

“S. 210. Procedure to be followed when there is a complaint case

and police investigation in respect  of  the  same  offence.—(1)

When in a case instituted otherwise  than  on  a  police  report

(hereinafter referred to as a complaint case),  it  is  made  to

appear to the Magistrate, during the course of  the  inquiry  or

trial held by him, that an investigation by  the  police  is  in

progress in relation to the offence which is the  subject-matter

of the inquiry or trial held by him, the Magistrate  shall  stay

the proceedings of such inquiry or trial and call for  a  report

on  the  matter  from  the   police   officer   conducting   the

investigation.

(2) If a report is made  by  the  investigating  police  officer

under Section 173 and on such report cognizance of  any  offence

is taken by the Magistrate against any person who is an  accused

in the complaint case, the Magistrate shall inquire into or  try

together the complaint case and the  case  arising  out  of  the

police report as if both the cases were instituted on  a  police

report.

(3) If the police report does not relate to any accused  in  the

complaint case or if the Magistrate does not take cognizance  of

any offence on the police report,  he  shall  proceed  with  the

inquiry or trial, which was stayed by him,  in  accordance  with

the provisions of this Code.”

 

 

 

21.         Section 397 of the Code empowers the High Court or the  Sessions

Judge to call for and examine  the  record  of  any  proceeding  before  any

inferior court situate within its or his local jurisdiction for the  purpose

of  satisfying  itself  or  himself  as  to  the  correctness,  legality  or

propriety, inter alia, of any order  passed  by  such  inferior  court.  The

powers of revision are concurrent with  the  High  Court  and  the  Sessions

Judge. By virtue of Section 399, the Sessions Judge may exercise all or  any

of the powers which may be exercised by the  High  Court  under  sub-section

(1) of Section 401  and  while  doing  so  the  provisions  of  sub-sections

(2),(3),(4) and (5) of Section 401 apply to such power as far  as  possible.

Section 401 deals with High Court’s  power  of  revision  and  it  reads  as

follows :

 

“S. 401.  High Court’s powers of revision.—(1) In the  case  of

any proceeding the record of  which  has  been  called  for  by

itself or which otherwise comes  to  its  knowledge,  the  High

Court may, in  its  discretion,  exercise  any  of  the  powers

conferred on a Court of Appeal by sections 386,  389,  390  and

391 or on a Court of Session  by  section  307  and,  when  the

Judges composing the Court of revision are equally  divided  in

opinion, the case shall be disposed of in the  manner  provided

by section 392.

 

 

(2)  No order under this section shall be made to the prejudice

of the accused or other person unless he has had an opportunity

of being heard either personally  or  by  pleader  in  his  own

defence.

 

 

(3)  Nothing in this section shall be  deemed  to  authorise  a

High Court to convert  a  finding  of  acquittal  into  one  of

conviction.

 

 

(4)  Where under this Code an appeal  lies  and  no  appeal  is

brought, no proceeding by way of revision shall be  entertained

at the instance of the party who could have appealed.

 

 

(5)  Where under this Code an appeal lies  but  an  application

for revision has been made to the High Court by any person  and

the High Court is satisfied  that  such  application  was  made

under the erroneous belief that no appeal lies thereto and that

it is necessary in the interests of justice so to do, the  High

Court may treat the application for revision as a  petition  of

appeal and deal with the same accordingly.”

 

22.          In  light  of  the   above   provisions,   the   question   for

consideration before us is to be examined.

23.         Section 202 of the Code has twin objects; one,   to  enable  the

Magistrate to scrutinize carefully the allegations  made  in  the  complaint

with a view to prevent a person named therein as accused from  being  called

upon to face an  unnecessary,  frivolous  or  meritless  complaint  and  the

other,  to  find  out  whether  there  is  some  material  to  support   the

allegations made in the complaint. The Magistrate has a duty to  elicit  all

facts having regard to the interest of an absent accused person and also  to

bring to book a person or persons against whom the   allegations  have  been

made. To find out the above, the Magistrate  himself  may  hold  an  inquiry

under Section 202 of the Code or  direct an investigation to be  made  by  a

police officer. The dismissal of the complaint under Section 203 is  without

doubt a pre-issuance of process stage. The Code does not permit  an  accused

person to intervene in  the  course  of  inquiry  by  the  Magistrate  under

Section 202. The legal position is no more  res   integra  in  this  regard.

More than five decades back, this Court in  Vadilal  Panchal  v.  Dattatraya

Dulaji Ghadigaonker and another[14] with reference to  Section  202  of  the

Criminal Procedure Code, 1898 (corresponding to Section 202 of  the  present

Code) held that the inquiry  under  Section  202  was  for  the  purpose  of

ascertaining  the  truth  or  falsehood  of   the   complaint,   i.e.,   for

ascertaining whether there was evidence in support of the  complaint  so  as

to justify the issuance of process and commencement of  proceedings  against

the person concerned.

 

24.         In Chandra Deo Singh7, a four-Judge Bench of this Court  had  an

occasion to consider Section 202 of the old  Code.  The  Court  referred  to

the earlier decision of this Court in Vadilal Panchal14  and   few  previous

decisions, namely, Parmanand Brahmachari v. Emperor[15],  Radha  Kishun  Sao

v. S.K. Misra and Anr. [16],  Ramkisto  Sahu  v.  The  State  of  Bihar[17],

Emperor v. J.A. Finan[18], Baidya Nath Singh v. Muspratt and others[19]  and

it was held that the object of provisions of Section 202  (corresponding  to

present Section 202 of the Code) was to enable the  Magistrate  to  form  an

opinion as to whether process should be issued or not  and  to  remove  from

his mind any hesitation that he may have felt upon the mere perusal  of  the

complaint and the consideration of the complainant’s evidence on oath.    It

was further held that an accused person does not come into  the  picture  at

all till process is issued.

 

25.         In Smt. Nagawwa8, this Court  had an occasion  to  consider  the

scope of the inquiry by the Magistrate under Section 202 of  the  old  Code.

This Court referred to the earlier two decisions in  Vadilal  Panchal14  and

Chandra Deo Singh7 and in para 4 of the Report held as under:

 

“4. It would thus be clear from the two decisions of this Court

that the scope of the inquiry under Section 202 of the  Code  of

Criminal Procedure is extremely limited — limited  only  to  the

ascertainment of the truth or falsehood of the allegations  made

in the complaint— (i) on the materials placed by the complainant

before the court; (ii) for the limited purpose  of  finding  out

whether a prima facie case for issue of process  has  been  made

out; and (iii) for deciding the question purely from  the  point

of view of the complainant  without  at  all  adverting  to  any

defence that the accused may have. In fact it  is  well  settled

that in proceedings  under  Section  202  the  accused  has  got

absolutely no locus standi and is not entitled to  be  heard  on

the question whether the process should be issued against him or

not.”

 

26.         In Adalat Prasad9, a three-Judge Bench  of  this  Court  had  an

occasion to consider Sections 200, 202 and 204 of the Code.  The  scheme  of

the above provisions was explained in the following manner:

 

 

“12. Section 200 contemplates a Magistrate taking cognizance of

an offence on complaint to examine the  complaint  and  examine

upon oath the complainant and the witnesses present, if any. If

on such examination of the complaint and the witnesses, if any,

the Magistrate if he does not want to postpone the issuance  of

process has to dismiss the complaint under Section  203  if  he

comes to the conclusion that the complaint,  the  statement  of

the complainant and the witnesses have not made out  sufficient

ground for proceeding. Per contra,  if  he  is  satisfied  that

there is no need for further inquiry  and  the  complaint,  the

evidence adduced at that stage have materials  to  proceed,  he

can proceed to issue process under Section 204 of the Code.

 

 

13.  Section  202  contemplates  “postponement  of   issue   of

process”. It provides that if the Magistrate on  receipt  of  a

complaint, if he  thinks  fit,  to  postpone  the  issuance  of

process against the accused and desires  further  inquiry  into

the case either by himself 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, he may do so. In that process

if he thinks it fit he may even take evidence of  witnesses  on

oath, and after such investigation, inquiry and the  report  of

the police if sought for by the Magistrate and if he  finds  no

sufficient ground for proceeding he can dismiss  the  complaint

by recording briefly the reasons for doing so  as  contemplated

under Section 203 of the Code.

 

 

14. But after taking cognizance of the complaint and  examining

the complainant and the witnesses if he is satisfied that there

is sufficient ground to proceed with the complaint he can issue

process by way of  summons  under  Section  204  of  the  Code.

Therefore, what is  necessary  or  a  condition  precedent  for

issuing process under Section 204 is the  satisfaction  of  the

Magistrate either by examination of  the  complainant  and  the

witnesses or by the inquiry contemplated under Section 202 that

there is sufficient ground for proceeding  with  the  complaint

hence issue the process under Section 204 of the Code. In  none

of these stages the Code has provided for hearing the  summoned

accused, for obvious reasons because this is only a preliminary

stage and the stage of hearing of the accused would only  arise

at a subsequent stage provided for in the latter  provision  in

the Code. It is true as held  by  this  Court  in  Mathew  case

[(1992)  1  SCC  217]  that  before  issuance  of  summons  the

Magistrate should be satisfied that there is sufficient  ground

for proceeding with the complaint but that satisfaction  is  to

be arrived at by the inquiry conducted by him  as  contemplated

under Sections 200 and 202, and the only stage of dismissal  of

the complaint arises under Section 203 of  the  Code  at  which

stage the accused has no role to play, therefore, the  question

of the accused on receipt of summons approaching the court  and

making an application for  dismissal  of  the  complaint  under

Section 203 of the Code on a reconsideration  of  the  material

available on record is impermissible because  by  then  Section

203 is already over and the Magistrate has proceeded further to

Section 204 stage.

 

 

15. It is true that if a  Magistrate  takes  cognizance  of  an

offence, issues process  without  there  being  any  allegation

against the accused or any material implicating the accused  or

in contravention of provisions of Sections  200  and  202,  the

order of the Magistrate may be vitiated, but then the relief an

aggrieved accused can obtain at that stage is not  by  invoking

Section 203 of the Code because  the  Criminal  Procedure  Code

does not contemplate a review of an order. Hence in the absence

of any review power or  inherent  power  with  the  subordinate

criminal courts, the remedy lies in invoking Section 482 of the

Code.”

 

 

 

27.         The procedural scheme in  respect  of  the  complaints  made  to

Magistrates is provided in Chapter XV of the  Code.  On  a  complaint  being

made to a Magistrate taking cognizance of an offence, he  is  required    to

examine the complainant on oath and the  witnesses,  if  any,  and  then  on

considering the complaint and the statements on oath,  if   he   is  of  the

opinion that there is no sufficient ground  for  proceeding,  the  complaint

shall be dismissed after recording brief reasons. The  Magistrate  may  also

on receipt of a complaint of which  he  is  authorised  to  take  cognizance

proceed with further inquiry into the  allegations  made  in  the  complaint

either himself or direct  an  investigation  into  the  allegations  in  the

complaint 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. In that event, the Magistrate in fact  postpones  the

issue of process.  On conclusion of the inquiry by himself or on receipt  of

report from the police officer or  from  such  other  person  who  has  been

directed to  investigate  into  the  allegations,  if,  in  the  opinion  of

Magistrate taking cognizance of an offence there  is  no  sufficient  ground

for proceeding, complaint is  dismissed  under  Section  203  or  where  the

Magistrate  is  of  the  opinion  that  there  is  sufficient   ground   for

proceeding, then a process is issued. In a summons  case,  summons  for  the

attendance of the accused is issued and in a  warrant  case  the  Magistrate

may either issue a warrant or a  summons  for  causing  the  accused  to  be

brought or to appear before him.

28.         Pertinently, Chapter XV uses the expression, “taking  cognizance

of an offence” at various places.  Although the expression  is  not  defined

in the Code, but it has acquired definite meaning for the purposes  of   the

Code.

29.         In R.R. Chari v. The State of Uttar  Pradesh  [20],  this  Court

stated that taking cognizance did not involve  any formal action  or  indeed

action of any kind but it takes place no sooner  a  Magistrate  applies  his

mind to the suspected commission of an offence.

30.          In  Narayandas  Bhagwandas  Madhavdas  v.  The  State  of  West

Bengal[21], this  Court  considered  the  expression,  “take  cognizance  of

offence” with reference to  Sections 190(1)(a), 200  and  202  and  held  as

under :

“……As to when cognizance is taken of  an  offence  will  depend

upon the facts  and  circumstances  of  each  case  and  it  is

impossible to  attempt  to  define  what  is  meant  by  taking

cognizance. Issuing of a search warrant for the purpose  of  an

investigation or of a warrant of arrest for that purpose cannot

by themselves be regarded as acts by which cognizance was taken

of an offence. Obviously, it is only when a Magistrate  applies

his mind for  the  purpose  of  proceeding  under  S.  200  and

subsequent  sections  of  Ch.  XVI  of  the  Code  of  Criminal

Procedure or under S. 204 of Ch. XVII of the Code that  it  can

be positively stated that he had applied his mind and therefore

had taken cognizance.”

 

 

 

 

31.         In Darshan Singh Ram Kishan v.  State  of  Maharashtra[22],  the

Court reiterated what was stated in R.R. Chari20.  It was further  explained

that cognizance takes place  at  a  point  when  a  Magistrate  first  takes

judicial notice of an offence on a complaint, or  a police report,  or  upon

information of a person other than a police officer.

32.         In Kishun Singh5, while  dealing  with  the  expression  “taking

cognizance of an offence” the  Court said that cognizance can be said to  be

taken by a Magistrate when he takes notice of the  accusations  and  applies

his mind to the allegations made  in  the  complaint  or  police  report  or

information and on being satisfied that the allegations,  if  proved,  would

constitute an offence, decides to initiate judicial proceedings against  the

alleged offender.

33.         In State  of  West  Bengal  and  another  v.  Mohd.  Khalid  and

others[23], the expression, “taking  cognizance  of  an  offence”  has  been

explained in paragraph 43 of the Report which reads as follows:

 

“43. Similarly, when Section  20-A(2)  of  TADA  makes  sanction

necessary for taking cognizance — it is only to prevent abuse of

power by authorities concerned. It requires  to  be  noted  that

this provision of Section 20-A came to be inserted by Act 43  of

1993. Then,  the  question  is  as  to  the  meaning  of  taking

cognizance. Section 190 of  the  Code  talks  of  cognizance  of

offences by Magistrates. This expression has not been defined in

the Code. In its broad and literal sense, it means taking notice

of an offence. This would include the  intention  of  initiating

judicial proceedings against the offender  in  respect  of  that

offence or taking steps to see whether there is  any  basis  for

initiating judicial proceedings or for other purposes. The  word

‘cognizance’ indicates the point when a Magistrate  or  a  Judge

first takes judicial notice of an  offence.  It  is  entirely  a

different thing from initiation of proceedings; rather it is the

condition precedent to the  initiation  of  proceedings  by  the

Magistrate or the Judge. Cognizance is taken of cases and not of

persons.”

 

 

 

 

 

 

34.         The above cases where the expression, “taking cognizance  of  an

offence” for the purposes of  the  Code  (old  as  well  as  new)  has  been

explained have been noted  by a two-Judge Bench of this Court in  Pastor  P.

Raju6. The Court  in para 13 of  the  Report  referred  to  the  distinction

between “taking cognizance of an offence” and   “issuance  of  process”  and

observed as under:

 

 

“13. ……..Cognizance is taken  at  the  initial  stage  when  the

Magistrate applies his judicial mind to the facts mentioned in a

complaint or to a police report  or  upon  information  received

from any other person that an offence has  been  committed.  The

issuance  of  process  is  at  a  subsequent  stage  when  after

considering the material placed before it the court  decides  to

proceed against the offenders against whom a prima facie case is

made out.”

 

 

 

35.         On  behalf  of  the  appellants,   it  was  submitted  that  the

direction by  the  CJM  to  the  Police  Officer  to  investigate  into  the

allegations made in  the  complaint  amounts  to  taking  cognizance  of  an

offence and the  dismissal of the complaint by the  CJM  under  Section  203

of the Code was after he had taken cognizance of the offence. On  the  other

hand,  on behalf of the respondent no. 1,  it was vehemently contended  that

dismissal of complaint by the CJM under Section 203 of the  Code  was  at  a

pre-cognizance stage. The submission on behalf of the respondent  no.  1  is

that no cognizance has been taken by the  CJM  while  directing  the  Police

Officer to investigate into the allegations of the complaint.

36.         We shall immediately advert to the aspect  whether  or  not  CJM

had taken cognizance of  the  offence  and  whether  the  dismissal  of  the

complaint under Section 203 in the matter was post-taking cognizance.

37.         The word, “cognizance” occurring  in  various  Sections  in  the

Code is a word of wide import. It embraces  within  itself  all  powers  and

authority in exercise of jurisdiction and taking of authoritative notice  of

the allegations made in the complaint or a police report or any  information

received that offence has been committed. In the context  of  Sections  200,

202 and 203, the expression `taking cognizance’ has been used in  the  sense

of  taking notice of the complaint or the first information  report  or  the

information that offence has  been  committed  on  application  of  judicial

mind. It does not necessarily mean issuance of process.

38.         Having regard to the above legal position,  if the order of  the

CJM passed on 18.6.2004 is seen, it becomes apparent  that  he  had  applied

judicial mind on the complaint that day.  The order  records,  “on  perusing

the complaint and the accompanying documents,  in  the  said  matter  it  is

necessary to take into custody the documents mentioned in the complaint.  It

is necessary to find out the persons who  have  forged  signatures  on  such

documents, and record their statements, and to compare the  said  signatures

with the signatures of the family members of the complainant,  and  in  this

regard obtain the opinion from the Handwriting  Expert, in view of all  this

such investigations cannot be done by the Court, in view of this fact  below

Section 156(3) of  Cr.P.C. in the matter of the said  complaint  for  police

investigations it is hereby ordered to send the said inquiry  to  the  P.I.,

Umra, Police Station. And,  he is ordered to investigate thoroughly in  this

matter and within 30 days present the report before this Court”.

39.         From the above order passed by the CJM,  there remains no  doubt

that on 18.06.2004, he had taken cognizance although he  postponed issue  of

process by directing an investigation to be made  by  Police  Officer.   The

submission of the learned counsel for the respondent no.1 that the  CJM  had

not taken cognizance in the matter and the  complaint  was  dismissed  under

Section 203 at the pre-cognizance stage has no substance and is rejected.

40.         The question now is, in a matter of this nature where  complaint

has been dismissed by  the  Magistrate  under  Section  203  post-cognizance

stage and pre-issuance of process, whether  on challenge to the legality  of

the order of dismissal of complaint being  laid  by  the  complainant  in  a

revision application before the High Court, the persons  who  are  arraigned

as accused in the complaint have a right to be heard.

41.         Before we deal with the above question  further,   some  of  the

decisions of the High Courts upon which heavy reliance was  placed   by  the

counsel for the respondent no. 1  may  be  noticed.  In  Panatar  Arvindbhai

Ratilal12, a Single Judge of the Gujarat  High  Court  had  an  occasion  to

consider  locus standi of  the  suspects  at  the  stage  of  grant  of  ‘C’

Summary.  That  was  a  case  where  the  police  did   not   initiate   any

investigation for quite some time in respect of an offence  registered  with

the police station. The complainant approached  the  CJM  wherein  direction

for  investigation by the police was made. The  police  after  investigation

submitted report and sought ‘C’ Summary. The  complainant  objected  to  the

report submitted by the police as to ‘C’  Summary.  The  Magistrate  allowed

the suspects to be heard against which the complainant  filed  the  criminal

revision before the Sessions Judge.  The  Sessions  Judge  agreed  with  the

complainant and overruled the order  of the Magistrate allowing the  accused

to make submission. There were seven accused in the  complaint  and  two  of

them approached  the High Court against the order  of  the  Sessions  Judge.

The Single Judge of the High Court confirmed the order  of  Sessions  Judge.

The Magistrate thereafter heard the complainant and  granted   ‘C’  Summary.

Against that order, the complainant filed a  revision  before  the  Sessions

Judge. Two accused who had earlier challenged  the  order  of  the  Sessions

Judge before the High Court applied to the Sessions Judge for permission  to

make submission in support of the order of  the   Magistrate.  The  Sessions

Judge allowed the application made by the accused against  which  order  the

complainant filed criminal revision before the High Court.  The  High  Court

noted the provisions contained in Sections 397(2) and 403 of  the  Code  and

then held that allowing the suspects to be heard at this stage would  amount

to permitting them to have their say at the stage which is not  contemplated

by the Code and it would be giving a premature hearing to the accused.   The

High Court was persuaded by  the  submission  of  the  complainant  that  an

accused cannot be given  pre-trial  hearing.  The  High  Court  observed  as

follows :

 

“6. The views consistently expressed by this Court as well as by

the Supreme Court about the hearing of the suspects at the stage

of granting of ‘C’ summary or not is clearly to the effect  that

they have no locus standi.

 

 

7. In this background we  turn  to  the  submission  made  under

Section 403 of  the  Code  of  Criminal  Procedure,  by  learned

Advocate Shri J.R. Nanavati. There again at first sight it might

appear that party referred to in the said  section  could  be  a

party other than one arrayed before the Court  on  either  side,

but when we realise that the  matter  to  be  dealt  with  under

Chapter 30 of the Code  of  Criminal  Procedure  wherein  occurs

Section 403 power is that of a Revision and it being  the  power

exercised by the Court, a party may or may not be heard  as  the

Court may decide and this alone would explain the  inclusion  of

Section 403 in that Chapter.

 

 

8. Otherwise all the procedural laws have as its foundation  the

maxim Audi Alterem Partem and at all stages wherever the need be

there are provision for issuance of notice and making sure  that

the party against whom the orders are  being  sought  is  heard.

Therefore, there was no need of inclusion of Section 403 at  the

place where we find it and we can appreciate it only and only if

bearing in mind the fact that it being a  chapter  dealing  with

revisional jurisdiction which  is  expressly  privilege  of  the

Court realising the order of subordinate Court that there  might

be an occasion, the party need not be or may not be  heard,  and

therefore, there is a specific provision in that behalf.

 

 

9. Once we appreciate the aforesaid section  in  this  light  of

submissions made by learned Advocate Shri Nanavati pertaining to

the aforesaid decision of the Gujarat High Court as well as that

of the Supreme Court on hearing of the suspects at the stage  of

granting of ‘C’ summary, can also be understood because the same

principle will apply whether the accused are  being  dealt  with

under Chapter 13 or 17 of the  Code  of  Criminal  Procedure  or

under Chapter 30 of the Code of Criminal Procedure, as the  case

may be, the principle  will  not  alter  and  more  so  when  we

appreciate the inclusion of Section 403 of the Code of  Criminal

Procedure, it becomes quite clear  that  the  principle  on  the

contrary would be reinforced.”

 

 

42.         The Madhya Pradesh High Court in Ratanlal Soni13  was  concerned

with the legality of an order passed by Additional  Sessions  Judge  without

notice to the accused persons who were arrayed  as  non-applicants  therein.

The Single Judge of that Court referred to two decisions of  this  Court  in

Chandra Deo Singh7  and Smt. Nagawwa8 and couple of decisions  of  the  High

Court and stated in paragraph 6 of the Report as under :

 

 

“6. In view of the aforesaid enunciation of law it is luminously

clear that  the  accused-has  no  locus  standi  to  appear  and

participate  before  the  process  is  issued.  This  being  the

accepted position of law it can safely be concluded that when  a

revision  is  filed  challenging  the  order  refusing  to  take

cognizance the accused has no locus standi to contest. He is not

a necessary party. The determination is to be made by the  Court

to find out the approach of the Court below  and  to  scrutinise

the justifiability of the order  refusing  to  take  cognizance.

This being the position of  law  disposal  of  revision  by  the

revisional Court without issuing notice to the non-applicant  is

not infirm or pregnable. Once it has been held that the  accused

persons have no role  to  play  before  process  is  issued  the

revision  at  their  instance  challenging  the  order  of   the

revisional Court directing  the  Magistrate  to  reconsider  the

matter is not tenable as they cannot raise grievance  in  regard

to the same as  yet  there  is  no  direction  for  issuance  of

process.”

 

 

43.         A Single Judge of Punjab  and  Haryana  High  Court  in  Gurdeep

Singh11 was concerned with a petition under Section 482 of  the  Code  filed

by the accused seeking quashment of the order passed by the  Sessions  Judge

setting aside the order of the CJM whereby the complaint was  dismissed  for

want of prosecution. The dismissal of complaint  by  the  CJM  for  want  of

prosecution was at the initial stage. The challenge  to  the  order  of  the

Sessions Judge by the accused was on the  ground  that  the  Sessions  Judge

while allowing the revision application  had  infringed  the  provisions  of

Section 401(2) of the Code inasmuch as no opportunity  of  being  heard  was

given to the accused although  the  complaint  was  dismissed  for  want  of

prosecution. The Single Judge of that Court took the view as follows :

 

 

“14. …….By no  stretch  of  imagination,  in  my  opinion,  the

accused can seek the setting aside of the order passed  by  the

Sessions Judge on the ground that the said order was passed  by

the Sessions Judge without issuing notice to  the  accused.  As

referred to above, the accused petitioner cannot  take  benefit

of provisions of Section 401(2) Cr.P.C. as it could not be said

that any order to the prejudice or against the  petitioner  had

been passed by the learned Sessions Judge. On the  other  hand,

the order, – vide which the complaint was dismissed for want of

prosecution was set aside by the learned Sessions Judge. If the

case of the accused petitioner was not  covered  under  Section

401(2) Cr.P.C., it was not at all  necessary  for  the  learned

Sessions Judge to  have  heard  the  accused  petitioner  while

setting aside the order of the learned Magistrate  in  view  of

the provisions of Section 403 Cr.P.C. Even otherwise in view of

the proviso to Section 398 Cr.P.C.  only  the  person  who  was

discharged had  a  right  to  be  heard  before  the  order  of

discharge could be set  aside  in  revision  by  the  Court  of

Sessions in exercise of its revisional  jurisdiction.  In  this

view of the matter,  in  my  opinion,  the  contention  of  the

learned counsel for  the  accused  petitioner  that  the  order

passed by the learned Sessions Judge was liable to be set aside

only on the ground that the accused petitioner was  not  heard,

could not be sustained.”

 

 

44.         In Tata Motors Limited, Single  Judge  of  the  High  Court  was

concerned with controversy arising out of complaint which was  dismissed  by

the Metropolitan Magistrate under Section 203 of the Code in limine. In  the

revision petition  filed  under  Section  397  read  with  Section  401  and

Section 482 of the Code, it was contended on behalf of the complainant  that

the Metropolitan Magistrate erred  in  taking  into  consideration  possible

defence of the accused instead of ascertaining whether  on  a  consideration

of the complaint and the pre-summoning evidence,  a  prima  facie  case  had

been made out for summoning the accused for the  offence  mentioned  in  the

complaint.  It was also argued on behalf of the complainant before the  High

Court that  the  accused  persons  have  not  yet  been  summoned  and  even

cognizance of the case has not been taken  by  the  Metropolitan  Magistrate

and, therefore, there was no occasion at all for the accused persons  to  be

heard. It was also argued on behalf of the  complainant  that  at  the  pre-

cognizance stage, there was no  question  of  the  accused  being  given  an

opportunity even in a revision petition filed  by  the  complainant  against

the order of dismissal of complaint. On  the  contrary,  on  behalf  of  the

accused persons it was argued that under Section 401(2)  of  the  Code,   if

adverse order is going  to  be  passed  in  revision  petition  which  might

prejudice either the accused or any other person then such a person  has  to

be mandatorily given an opportunity of being heard either personally  or  by

pleader in defence.  The Single Judge of that Court on consideration of  the

submissions of the parties and the decisions cited  before  him  culled  out

the legal position as follows :

 

 

“20.  xxx   xxx  xxx

 

 

1) There is a distinction to be  drawn  between  the  criminal

complaint cases which are at the pre-cognizance  stage  and

those at the post-cognizance  stage.  There  is  a  further

distinction to be drawn between  the  cases  at  the  post-

cognizance but pre-summoning stage and those at  the  post-

summoning stage.

 

 

(2)    It  is  only  at  the  post-summoning  stage   that   the

respondents in a criminal complaint would answer the description

of an ‘accused’. Till then they are like any other member of the

public. Therefore at the pre-summoning  stage  the  question  of

their  right  to  be  heard  in  a  revision  petition  by   the

complainant in their capacity as “accused” in terms  of  Section

401(2) CrPC does not arise.

 

 

3)     At the post-cognizance but pre-summoning stage, a  person

against whom the complaint is filed might have a right to  be

heard under the rubric of ‘other person’ under Section 401(2)

CrPC. If the learned MM has not taken the cognizance  of  the

offence then no  right  whatsoever  accrues  to  such  “other

person” to be heard in a revision petition.

 

 

(4)   Further, it is not that in every revision  petition  filed

by the complainant under Section 401(2) CrPC, a right of hearing

has to be given to such “other person” or  the  accused  against

whom the criminal complaint has been filed.  The  right  accrues

only if the order to be  passed  in  the  revision  petition  is

prejudicial to such person or the accused.  An  order  giving  a

specific direction to the learned MM to either proceed with  the

case either at the post-cognizance or post-summoning stage or  a

direction to register an FIR with a direction to the learned  MM

to  proceed  thereafter  might  be  orders  prejudicial  to  the

respondents  in  a  criminal  complaint  which  would  therefore

require them to be heard prior, to the passing of  such  order.”

 

 

 

 

 

 

 

 

45.         On facts obtaining in the case, the Single Judge  observed  that

the Metropolitan Magistrate had not even taken cognizance  of  the  offences

and, therefore, there was no question of the applicants being heard  at  the

stage of revision application.

 

 

46.         The above decision of  the  Delhi  High  Court  in  Tata  Motors

Limited came up for consideration of that Court in Prakash Devi  and  others

v. State of Delhi and another [Criminal  Miscellaneous  Case  No.  2626/2009

decided on February 5, 2010]. The Single Judge, on facts of the  case  which

were under consideration  before  him,  observed  that  the  Magistrate  had

dismissed  the  complaint  filed  by  the  complainant  after  taking   into

consideration the status report filed by the police. The Magistrate had  not

examined the complainant and other witnesses under Section 202 of  the  Code

and in the revision filed  by  the  complainant  the  revisional  court  had

remanded the matter to the Magistrate to grant another  opportunity  to  the

complainant  to lead pre-summoning evidence and to proceed in the matter  in

accordance with law and, therefore, there was no occasion for  the  Sessions

Judge to accord hearing to the accused persons.   The  High  Court  held  as

under:

 

 

“16. …….As already  discussed  above,  the  character  of  the

petitioner was still not that of an accused  as  the  complaint

filed by the respondent was dismissed under Section 203 Cr.P.C.

and since the matter was remanded back  to  the  Magistrate  to

grant opportunity to  the  complainant  to  lead  pre-summoning

evidence,  therefore,  the  said  order  does  not  cause   any

prejudice to the rights of the petitioner. Even after the  said

remand,  the  fate  of  the  complaint  case  could  either  be

dismissal under Section 203 or under 204 Cr.P.C., if the  Court

with the fresh material before it, comes to the  conclusion  to

proceed against the respondent. Since in the present  case  the

process was not yet  issued  against  the  petitioner  and  the

complaint was dismissed under S.  203  of  Cr.P.C.,  therefore,

preceding the said stage, the petitioner had no right  to  seek

opportunity of hearing before the Revisional Court in the light

of the legal position discussed above.”

 

 

 

 

 

 

47.         It may not be out of place to refer to an  earlier  decision  of

the Delhi High Court in A.S. Puri v. K.L. Ahuja[24].  In  that  case,  inter

alia, the question before the High Court  was  whether  Additional  Sessions

Judge had committed an error in  hearing  the  arguments  of  the  accused’s

counsel to whom he had not ordered notice of  the  revision  petition  filed

before him by the complainant. The Single Judge of  that  Court  dealt  with

the question as under :

 

 

“25. …..This question need not detain  us  because  the  learned

Additional Sessions Judge had invited the counsel for  Mr.  Puri

to address arguments, when he was present in Court at  the  time

of the hearing of the revision petition. It appears that  notice

of the revision petition did go to Mr. Puri but  as  it  appears

from the docket the learned Additional Sessions Judge  had  only

ordered notice to the respondent, which was the State.  If  even

by any error committed by the Officer of the learned Magistrate,

notice had also gone to Mr. Puri nothing prevented  the  learned

Additional Sessions Judge from hearing Mr. Puri for it  was  his

discretion to hear him. A Full Bench of the Calcutta High Court,

consisting of eight Judges, pointed out in Hari Dass  Sanyal  v.

Saritulla, (1888) ILR 15 Cal 608 (FB), that while no  notice  to

an  accused  person  was  necessary   in  point  of  law  before

disposing of a revision petition directed against the  order  of

dismissal  under  Section  203,  Criminal  Procedure  Code   and

ordering a further enquiry as a  matter  of  discretion  it  was

proper that such a notice  was  given.  In  spite  of  that  the

learned Additional Sessions Judge had set  aside  the  order  of

dismissal. In this situation the  complainant  cannot  make  any

further grievance of this.”

 

 

 

 

 

 

48.          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,  upto  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. The 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. Three expressions, “prejudice”, “other  person”  and  “in  his  own

defence” in Section 401(2) are  significant  for  understanding  their  true

scope, ambit and width. Black’s Law  Dictionary  [Eighth  Edition]  explains

“prejudice” to mean damage or detriment to one’s  legal  rights  or  claims.

Concise  Oxford  English  Dictionary  [Tenth   Edition,   Revised]   defines

“prejudice” as under :

 

 

“1. Preconceived opinion that is not based on reason  or  actual

experience. > unjust behaviour formed on such a basis. 2.   harm

or injury that  results  or  may  result  from  some  action  or

judgment.  v.1   give  rise  to  prejudice  in  (someone);  make

biased. 2. cause harm to (a state of affairs)”.

 

 

 

 

 

 

49.          Webster  Comprehensive   Dictionary   [International   Edition]

explains “prejudice” to mean  (i)  a  judgment  or  opinion,  favourable  or

unfavourable, formed beforehand or without due examination  …….;   detriment

arising from a hasty and unfair judgment; injury; harm.

 

 

50.         P. Ramanatha Aiyar;  the  Law  Lexicon  [The  Encyclopaedic  Law

Dictionary] explains “prejudice” to mean  injurious  effect,  injury  to  or

impairment of a right, claim, statement etc.

 

 

51.         “Prejudice”  is generally defined as meaning “to  the  harm,  to

the injury, to the disadvantage of someone”. It also means injury or loss.

 

 

52.         The expression “other person” in the context of  Section  401(2)

means a person other than accused.  It  includes  suspects  or  the  persons

alleged in the complaint to have been involved in an offence  although  they

may not be termed as accused at a stage before  issuance of process.

 

 

53.         The expression “in his own  defence”  comprehends,  inter  alia,

for the purposes of Section 401(2), in defence of the order which  is  under

challenge in revision before the Sessions Judge or the High Court.

 

 

54.         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  right  of  hearing  before  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

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.

 

 

55.         In  P.  Sundarrajan1,  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 paragraphs 5 and 6 of the Report (Pg. 472  and  473)  held  as

under:

 

 

“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.”

 

 

 

 

 

 

56.         In Raghu Raj Singh Rousha2, 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  offences punishable under Sections 323,  382,

420, 465, 468, 471, 120-B, 506 and 34 of 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  complainant,

the accused was entitled to be heard before the High Court.   Sections  397,

399 and 401 were noticed by this Court and so  also  few  earlier  decisions

including Chandra Deo Singh7, Vadilal Panchal14, P. Sundarrajan1   and  then

in paragraphs 22 and 23 (Pg. 369) of the Report, the Court  held as under :

 

 

“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.”

 

 

 

 

 

 

57.         In a comparatively recent order in  A.  N.  Santhanam3,  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  facts  situation.  In  fact  the

decision of this Court was in a case where  the  complaint  was

taken cognizance  and  not  a  case  where  the  compliant  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

the 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.”

 

 

58.         We are in complete agreement with the  view  expressed  by  this

Court in P. Sundarrajan1 , Raghu Raj Singh Rousha2 and A.  N.  Santhanam3  .

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.    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.

 

 

59.         In  view  of  the  above  position,  the  impugned  order  dated

5.8.2005 cannot be sustained and is liable to  be  set  aside  and,  is  set

aside. The  appellants’  application  for  impleadment   in    the  criminal

revision petition stands allowed.  High Court shall  now   hear  the  matter

and dispose of the criminal revision petition  in accordance with  law.  The

appeal is allowed as above.

 

………..…………….J.

(R.M. Lodha)

 

 

………….…………………….J.

(Chandramauli Kr. Prasad)

 

 

…………………………………….J.      (Sudhansu   Jyoti

Mukhopadhaya)

NEW DELHI.

OCTOBER 1, 2012.

 

 

 

 

———————–

[1]     (2004) 13 SCC 472

[2]     (2009) 2 SCC 363

[3]     2011 (2) JCC 720 (SC)

[4]     (1964) 5 SCR 37

[5]     (1993) 2 SCC 16

[6]     (2006) 6 SCC 728

[7]     1964 (1) SCR 639

[8]     (1976) 3 SCC 736

[9]     (2004) 7 SCC 338

[10]   (2006) 1 SCC 627

[11]    ILR  2001 (2) P & H 388

[12]    1991 (1) Vol. 32 GLR 451

[13]    1998 (2) MPLJ  321

[14]    (1961) 1 SCR 1

[15]    AIR (1930) Patna 30

[16]    AIR (1949) Patna 36

[17]    AIR (1952) Patna 125

[18]    AIR (1931) Bom 524

[19]    ILR (1886) XIV Cal 141

[20]    (1951) SCR 312

[21]    AIR (1959) SC 1118

[22]    (1971) 2 SCC 654

[23]    (1995) 1 SCC 684

[24]    AIR 1970 Delhi 214

 

———————–

41

 

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