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FIR and protest complaint – police filed charge sheet – Magistrate dismissed the complaint under sec. 203 – Revision filed – only hearing complainant , the High court set aside the order of Magistrate without hearing the accused.= Apex court set aside the order of High court and held that under sec.401 Cr.P.C. while hearing the complainant an opportunity should be given to the accused The right given to “accused” or “the other person” under S. 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 S. 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage.= Bal Manohar Jalan … Appellant(s) versus Sunil Paswan and another … Respondent(s) = 2014 July part http://judis.nic.in/supremecourt/filename=41704

FIR and protest complaint – police filed charge sheet – Magistrate dismissed the complaint under sec. 203 – Revision filed – only hearing complainant , the High court set aside the order of Magistrate without hearing the accused.= Apex court set aside the order of High court and held that under sec.401 Cr.P.C. while hearing the complainant an opportunity should be given to the accused The right given to  “accused”  or  “the  other  person”

under S. 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 S. 401(2) of the  Code.   The

stage is not important whether it  is  pre-process  stage  or  post  process

stage.=

 

The father of the respondent No.1 herein filed  a  complaint  on

24.5.2003 against five  accused  persons  alleging  therein  that  they  had

committed  murder  of  son  of  the  complainant  by  name  Anil  Paswan  by

administering poison.  A case was registered  in  First  Information  Report

No.96 of 2003 on the file of Chowk Police Station, Patna City, on  28.5.2003

against 5 accused persons for the alleged offences under Section  328/302/34

IPC. During investigation, the  complainant  filed  a  protest-cum-complaint

petition on 7.6.2003 which was kept on  record.  The  investigation  officer

submitted the final report in the case on  31.5.2008  against  accused  No.1

Sunita Devi alone under Section 328/302 IPC for the murder of  Anil  Paswan.

The Addl. Chief Judicial Magistrate, Patna City,  perused  the  charge-sheet

and the case diary as  well  as  the  protest-cum-complaint  petition  dated

7.6.2003 and took cognizance for the  offences  under  Section  328/302  IPC

against accused No.1 Sunita Devi and discharged accused Nos. 2 to 5  in  the

First Information  Report  from  the  case  and  rejected  the  protest-cum-

complaint petition filed by the complainant by  his  order  dated  4.3.2009.

Aggrieved by the  rejection  of  the  protest-cum-complaint  petition  Sunil

Paswan, the  son  of  complainant  late  Harinandan  Paswan  filed  revision

petition in Criminal Revision No.830 of 2009 on the file of the  High  Court

of Judicature  at Patna under Section 397 and 401 of the  Code  of  Criminal

Procedure.  The High Court after hearing the  revision  petitioner  and  the

respondent State set aside  the order dated 4.3.2009 passed by  Addl.  Chief

Judicial Magistrate, Patna City and remanded the matter to the  court  below

for proceeding in accordance with  law  treating  the  protest-cum-complaint

petition as a complaint.=

 In a case where the complaint has been dismissed by the Magistrate  u/s.

203 of the Code either at the stage of S. 200 itself  or  on  completion  of

inquiry by the Magistrate u/s. 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-s. (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 u/s.  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 S. 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 S. 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 S. 401(2) of the  Code.   The

stage is not important whether it  is  pre-process  stage  or  post  process

stage.”

 

 In the result the impugned order of the High Court dated 18.4.2011  is

set aside and the matter is remitted and the High Court shall  issue  notice

to all the  concerned  accused  and  thereafter  hear  and  dispose  of  the

criminal revision petition in accordance with law.  This appeal  is  allowed

accordingly.

2014 July part http://judis.nic.in/supremecourt/filename=41704
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1247 OF 2014
[Arising out of Special Leave Petition (Crl.) No.5826 of 2011]
Bal Manohar Jalan … Appellant(s)

versus

Sunil Paswan and another … Respondent(s)

J U D G M E N T

 

C. NAGAPPAN, J.

 

1. Leave granted.

 

2. This appeal is preferred against the impugned order dated 18.4.2011
passed by the High Court of Judicature at Patna in Criminal Appeal No. 830
of 2009 whereby the High Court allowed the Criminal Revision filed by the
respondent No.1 herein.

 

3. The facts necessary for the disposal of the present appeal are stated
as follows: The father of the respondent No.1 herein filed a complaint on
24.5.2003 against five accused persons alleging therein that they had
committed murder of son of the complainant by name Anil Paswan by
administering poison. A case was registered in First Information Report
No.96 of 2003 on the file of Chowk Police Station, Patna City, on 28.5.2003
against 5 accused persons for the alleged offences under Section 328/302/34
IPC. During investigation, the complainant filed a protest-cum-complaint
petition on 7.6.2003 which was kept on record. The investigation officer
submitted the final report in the case on 31.5.2008 against accused No.1
Sunita Devi alone under Section 328/302 IPC for the murder of Anil Paswan.
The Addl. Chief Judicial Magistrate, Patna City, perused the charge-sheet
and the case diary as well as the protest-cum-complaint petition dated
7.6.2003 and took cognizance for the offences under Section 328/302 IPC
against accused No.1 Sunita Devi and discharged accused Nos. 2 to 5 in the
First Information Report from the case and rejected the protest-cum-
complaint petition filed by the complainant by his order dated 4.3.2009.
Aggrieved by the rejection of the protest-cum-complaint petition Sunil
Paswan, the son of complainant late Harinandan Paswan filed revision
petition in Criminal Revision No.830 of 2009 on the file of the High Court
of Judicature at Patna under Section 397 and 401 of the Code of Criminal
Procedure. The High Court after hearing the revision petitioner and the
respondent State set aside the order dated 4.3.2009 passed by Addl. Chief
Judicial Magistrate, Patna City and remanded the matter to the court below
for proceeding in accordance with law treating the protest-cum-complaint
petition as a complaint. Accused No.4 mentioned in the First Information
Report Bal Manohar Jalan has challenged the said order of the High Court in
this appeal.

 

4. This Court issued notice in the matter on 1.8.2011 besides granting
stay of the impugned order. Respondent No.1 herein namely, the revision
petitioner before the High Court, though served did not choose to appear
either in person or through counsel before this Court and that necessitated
us to appoint Mr. S.B. Upadhyay, Senior Advocate as Amicus Curiae for
respondent No.1 to assist the Court, by order dated 7.4.2014 and both sides
were heard on 2.5.2014.

 

5. The main contention of the learned counsel for the appellant is that
though Section 401(2) of the Criminal Procedure Code stipulated that no
order in exercise of the power to revision shall be made by the High Court
to the prejudice of the accused unless he had an opportunity of being heard
either personally or by pleader in his own defence, the High Court in
criminal revision did not issue notice to the appellant herein who is
accused No.4 in the First Information Report and without providing an
opportunity to him has exercised jurisdiction under Section 401 by
directing to proceed in accordance with law treating the protest petition
as the complaint, to the prejudice of the appellant herein and hence the
impugned order of the High Court is liable to be set aside. In support of
his submission he relied on the decision of this Court in Manharibhai
Muljibhai Kakadia and another vs. Shaileshbhai Mohanbhai Patel and others
[(2012) 10 SCC 517]. We also heard the learned amicus curiae on the
submissions made by the learned counsel for the appellant.

 

6. Admittedly the appellant herein is mentioned as accused No.4 in First
Information Report No.96 of 2003 dated 28.5.2003. The father of respondent
No.1 herein, while alive filed a protest-cum-complaint petition dated
7.6.2003 in the said case and on the filing of the final report, cognizance
was taken by the Addl. Chief Judicial Magistrate against accused No.1
Sunita Devi alone for the alleged offences under Section 328 and 302 IPC
and the other four accused mentioned in the First Information Report were
discharged from the case and the protest-cum-complaint petition was also
rejected by order dated 4.3.2009. Since by then, the complainant was not
alive, his another son namely Sunil Paswan preferred the Criminal Revision
under Section 397 and 401 of the Criminal Procedure Code and the High Court
without issuing notice to the concerned accused passed the impugned order
and on the ground of non-compliance of the provision under Section 401
clause (2) of the Criminal Procedure Code resulting in prejudice, the
appellant has preferred this appeal.

 

7. The right of hearing given to accused under Section 401 clause (2) of
Criminal Procedure Code was elaborately dealt with by this Court in
Manharibhai Muljibhai Kakadia case (supra) and it is laid down as follows:

“46. The legal position is fairly well-settled that in the proceedings u/s.
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. S. 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 u/s. 203 of  the Code, the question is whether a
person accused of crime in the complaint can claim right of hearing in a
revision application preferred by the complainant against the order of the
dismissal of the complaint. Parliament being alive to the legal position
that the accused/suspects are not entitled to be heard at any stage of the
proceedings until issuance of process under Section 204, yet in Section
401(2) of the Code provided that no order in exercise of the power of the
revision shall be made by the Sessions Judge or the High Court, as the case
may be, to the prejudice of the accused or the other person unless he had
an opportunity of being heard either personally or by pleader in his own
defence.

47. xxxx xxxx xxxx
48. In a case where the complaint has been dismissed by the Magistrate u/s.
203 of the Code either at the stage of S. 200 itself or on completion of
inquiry by the Magistrate u/s. 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-s. (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 u/s. 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 S. 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 S. 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 S. 401(2) of the Code. The
stage is not important whether it is pre-process stage or post process
stage.”

 
8. In the present case challenge is laid to order dated 4.3.2009 at the
instance of the complainant in the revision petition before the High Court
and by virtue of Section 401(2) of the Code, the accused mentioned in the
First Information Report get the right of hearing before the revisional
court although the impugned order therein was passed without their
participation. The appellant who is an accused person cannot be deprived
of hearing on the face of the express provision contained in Section 401(2)
of the Code and on this ground, the impugned order of the High Court is
liable to be set aside and the matter has to be remitted.

 

9. Though other grounds such as charge-sheet having been filed and the
cognizance has been taken against accused No.1, the protest petition cannot
be treated as a complaint warranting an independent inquiry, have been
raised in this appeal, we do not deem it necessary to consider the same
since we are remitting the matter for fresh consideration and it is open to
the appellant to raise them before the High Court.

 

10. In the result the impugned order of the High Court dated 18.4.2011 is
set aside and the matter is remitted and the High Court shall issue notice
to all the concerned accused and thereafter hear and dispose of the
criminal revision petition in accordance with law. This appeal is allowed
accordingly.

 

..………………………….J.
(T.S. Thakur)
……………………………J.
(C. Nagappan)
New Delhi;
June 30, 2014

 

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