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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
| PPEAL | NO. 124 |
|---|
| cial Leav | e Petitio |
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
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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
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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
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
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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
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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
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
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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
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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
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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
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Manharibhai Muljibhai Kakadia and another vs.
Shaileshbhai Mohanbhai Patel and others [(2012) 10
SCC 517]. We also heard the learned amicus curiae on 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
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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
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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
| provision under<br>edure Code res<br>erred this appea | | | | | | |
| The right of hearing given to accused under Se<br>clause (2) of Criminal Procedure Code was elabor<br>t with by this Court in Manharibhai Mulji<br>adia case (supra) and it is laid down as follows:<br>“46. The legal position is fairly well-settled that in<br>the proceedings u/s. 202 of the code the<br>accused/suspect is not entitled to be heard on the<br>question whJethUer D thGe MproEceNss Tshould be issued<br>against him or not. As a matter of law, upto the<br>stage of issuance of process, the accused cannot<br>claim any right of hearing. S. 202 contemplates<br>postponement of issue of process where the<br>Magistrate is of an opinion that further inquiry into<br>the complaint either by himself is required and he<br>proceeds with the further inquiry or directs an<br>investigation to be made by a Police Officer or by<br>such other person as he thinks fit for the purpose of<br>deciding whether or not there is sufficient ground<br>for proceeding. If the Magistrate finds that there is | | | | | | |
| “ | 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 | | | | | |
| JUDGMENT<br>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 | | | | | |
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| no sufficient ground for proceeding with the<br>complaint and dismisses the complaint u/s. 203 of<br>the Code, the question is whether a person accused<br>of crime in the complaint can claim right of hearing<br>in a revision application preferred by the<br>complainant against the order of the dismissal of<br>the complaint. Parliament being alive to the legal<br>position that the accused/suspects are not entitled<br>to be heard at any stage of the proceedings until<br>issuance of process under Section 204, yet in<br>Section 401(2) of the Code provided that no order in<br>exercise of the power of the revision shall be made<br>by the Sessions Judge or the High Court, as the case<br>may be, to the prejudice of the accused or the other<br>person unless he had an opportunity of being heard<br>either personally or by pleader in his own defence.<br>47. xxxx xxxx xxxx<br>48. In a case where the complaint has been<br>dismissed by the Magistrate u/s. 203 of the<br>Code either at the stage of S. 200 itself or on<br>completion of inquiry by the Magistrate u/s. 202 or<br>JUDGMENT<br>on receipt of the report from the police or from any<br>person to whom the direction was issued by the<br>Magistrate to investigate into the allegations in the<br>complaint, the effect of such dismissal is<br>termination of complaint proceedings. On a plain<br>reading of sub-s. (2) of Section 401, it cannot be<br>said that the person against whom the allegations<br>of having committed the offence have been made<br>in the complaint and the complaint has been<br>dismissed by the Magistrate under Section 203, has<br>no right to be heard because no process has been<br>issued. The dismissal of complaint by the Magistrate | no sufficient ground for proceeding with the | | | | |
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| 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 th | | e ord | er 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<br>person unless he had an opportunity of being heard | | | | |
| either personally or by p | | leader in his own defence. | | |
| 48. In a case where the complaint has been<br>dismissed by the Magistrate u/s. 203 of the<br>Code either at the stage of S. 200 itself or on<br>completion of inquiry by the Magistrate u/s. 202 or<br>JUDGMENT<br>on receipt of the report from the police or from any<br>person to whom the direction was issued by the<br>Magistrate to investigate into the allegations in the<br>complaint, the effect of such dismissal is<br>termination of complaint proceedings. On a plain<br>reading of sub-s. (2) of Section 401, it cannot be<br>said that the person against whom the allegations<br>of having committed the offence have been made<br>in the complaint and the complaint has been<br>dismissed by the Magistrate under Section 203, has<br>no right to be heard because no process has been<br>issued. The dismissal of complaint by the Magistrate | | | | |
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| u/s. 203 although it is at preliminary stage<br>nevertheless results in termination of proceedings<br>in a complaint against the persons who are alleged<br>to have committed the crime. Once a challenge is<br>laid to such order at the instance of the<br>complainant in a revision petition before the High<br>Court or the Sessions Judge, by virtue of S. 401(2)<br>of the Code the suspects get the right of hearing<br>before the revisional court although such order was<br>passed without their participation. The right given<br>to "accused" or "the other person" under S. 401(2)<br>of being heard before the revisional court to defend<br>an order which operates in his favour should not be<br>confused with the proceedings before a Magistrate<br>under Sections 200, 202, 203 and 204. In the<br>revision petition before the High Court or the<br>Sessions Judge at the instance of the complainant<br>challenging the order of dismissal of complaint, one<br>of the things that could happen is reversal of the<br>order of the Magistrate and revival of the complaint.<br>It is in this view of the matter that the accused or<br>other person cannot be deprived of hearing on the<br>face of the express provision contained in S. 401(2)<br>JUDGMENT<br>of the Code. The stage is not important whether it<br>is pre-process stage or post process stage.” |
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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
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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
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
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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.
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..………………………….J.
(T.S. Thakur)
……………………………J.
(C. Nagappan)
New Delhi;
June 30, 2014
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