Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2054 OF 2008
[Arising out of SLP (Crl.) No. 3031 of 2008]
Raghu Raj Singh Rousha …Appellant
Versus
M/s. Shivam Sundaram Promoters (P) L & Anr. …Respondents
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Whether the High Court in exercise of its jurisdiction under Sections
397 and 401 of the Code of Criminal Procedure (for short “the Code”) can
pass an order in absence of the accused persons in the facts and
circumstances of this case is the question involved in this appeal which
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arises out of a judgment and order dated 25.02.2008 passed by the High
Court of Delhi at New Delhi in Criminal Revision Petition No. 116 of 2008.
3. Before adverting to the said question, we may notice the admitted fact
of the matter.
4. Respondent No. 1 is a company registered and incorporated under the
Companies Act, 1956. It filed a complaint petition in the Court of
Additional Chief Metropolitan Magistrate, New Delhi at Patiala House
Courts under Section 200 of the Code in respect of an offence purported to
have been committed and punishable under Sections 323, 382, 420, 465,
468, 471, 120-B, 506 and 34 of the Indian Penal Code accompanied by an
application under Section 156(3) of the Code.
5. It is not necessary for us to deal with the allegations made in the said
complaint petition in details. Suffice it to say that by reason of an order
dated 7.02.2008, the Metropolitan Magistrate, New Delhi in whose court the
aforementioned complaint petition was transferred, refused to direct
investigation in the matter by the Station House Officer in terms of Section
156(3) of the Code, stating:
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“In the present case all the facts and circumstances
of the case are within the knowledge of the
complainant. Both the complainant and the
accused company have been dealing with one
another by way of contractual agreement and a
MOU dt. 05/08/05 was entered between them as
alleged in the complaint. From the complaint and
the documents placed on record, it appears that
there is some dispute between the parties in
respect of immovable property and the payments
pertaining to the sale of the same. The
complainant submits that the accused had cheated
him. In the facts and circumstances of the case
there is no requirement of collection of evidence
by the police at this stage as the complainant can
lead his evidence. In view of this, present
application u/s 156(3) CrPC is dismissed. The
complaint can be conveniently dealt with U/s 200
CrPC and subsequent provisions. If there is
necessity however of police that shall be taken u/s
202 Cr.P.C.”
On the aforementioned premise, the complainant was asked to lead
pre-summoning evidence. It was directed to furnish list of witnesses, if any.
6. Aggrieved by and dissatisfied therewith, respondent No. 1 filed a
revision application before the High Court impleading the State only as a
party. By reason of the impugned judgment, the High Court, having regard
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to the purported consent of the learned APP appearing for the State, on the
very first day of hearing, passed the following order:
“On hearing learned counsel for the parties, it is
agreed that the impugned order dated 7.2.2008 be
set aside with direction to the learned MM to
examine the matter afresh after calling for a report
from the police authorities. The police authorities
to hold a preliminary inquiry on basis of the
complaint made by the petitioner/ complainant and
submit a report to the learned Magistrate within
three weeks from today. The petitioner to appear
before the trial Court on 24.03.2008. Petition
stand disposed of.”
Appellant is, thus, before us.
7. Mr. H.S. Phoolka, learned senior counsel appearing on behalf of the
appellant, would contend that having regard to the fact that the complaint
petition was filed in terms of Section 200 of the Code read with Section 156
(3) thereof and as the learned Magistrate directed the respondent No. 1 to
produce witnesses so as to enable it to proceed in terms of Chapter XV of
the Code, the revision application could not have been disposed of without
notice to the appellant.
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8. Mr. Jaspal Singh, learned senior counsel appearing on behalf of the
respondent No. 1, on the other hand, would contend that the criminal
revision application having been filed at the pre-cognizance stage, the
accused has no right to be heard. Strong reliance in this behalf has been
placed on Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose
and another [AIR 1963 SC 1430] and Mohd. Yousuf v. Afaq Jahan (Smt)
and Another [(2006) 1 SCC 627].
9. A person intending to set the criminal law in motion inter alia may
file an application under Section 156(3) of the Code. When a First
Information Report is lodged, a police officer has the requisite jurisdiction
to investigate into the cognizable offence in terms of Section 156(1) of the
Code. Where, however, a Magistrate is entitled to take cognizance of the
offence under Section 190 of the Code, he may also direct that such
investigation be carried out in terms thereof.
When a complaint petition is filed under Chapter XV of the Code, the
Magistrate has a few options in regard to exercise of his jurisdiction. He
may take cognizance of the offence and issue summons. He may also
postpone the issue of process so as to satisfy himself that the allegations
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made in the complaint petition are prima facie correct 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 as to
whether or not there is sufficient ground for proceeding. By reason of the
aforementioned order dated 7.02.2008, the learned Magistrate intended to
inquire into the case himself. It is for the said purpose, he directed
examination of the complainant and his witnesses.
10. One of the questions which arises for consideration is as to whether
the learned Magistrate has taken cognizance of the offence. Indisputably, if
he had taken cognizance of the offence and merely issuance of summons
upon the accused persons had been postponed; in a criminal revision filed
on behalf of the complainant, the accused was entitled to be heard before
the High Court.
11. Section 397 of the Code empowers the High Court to call for records
of the case to exercise its power of revision in order to satisfy itself as
regards correctness, legality or propriety of any finding, sentence or order
recorded or passed and as to the regularity of any proceedings of such
inferior court. Sub-section (2) of Section 397 of the Code, however,
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prohibits exercise of such power in relation to any interlocutory order
passed in any proceeding. Whereas Section 399 of the Code deals with the
Sessions Judge’s power of revision; Section 401 thereof deals with the High
Court’s power of revision.
Sub-section (2) of Section 401 of the Code reads, thus:
“(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.”
12. Submission of Mr. Jaspal Singh that by reason of the impugned order
the appellant was not prejudiced and in any event at the pre-summoning
stage, he was not an accused, cannot be accepted.
Sub-section (2) of Section 401 of the Code refers not only to an
accused but also to any person and if he is prejudiced, he is required to be
heard.
An order was passed partially in his favour. The learned
Metropolitan Magistrate has refused to exercise its jurisdiction under
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Section 156(3) of the Code. Had an opportunity of hearing been given to
the appellant, he could have shown that no revision application was
maintainable and/ or even otherwise, no case has been made out for
interference with the impugned judgment.
13. In Makkapati Nagaswara Sastri v. S.S. Satyanarayan [(1981) 1 SCC
62], this Court opined that the principle of audi alteram partem is
applicable in a proceeding before the High Court.
Yet again in P. Sundarrajan and Others v. R. Vidhya Sekar [(2004) 13
SCC 472], this Court held:
“4. On the above basis, it proceeded to consider
the material produced by the petitioner before it
and without taking into consideration the defence
that was available to the respondent proceeded to
set aside the order of the Magistrate, and directed
the said court to take the complaint on file and
proceed with the same in accordance with law.
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.”
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14. We may also notice that this Court in Vadilal Panchal v. Dattatraya
Dulaji Ghadigaonkar and another [AIR 1960 SC 1113], opined:
“9. The general scheme of the aforesaid
sections is quite clear. Section 200 says inter alia
what a Magistrate taking cognisance of an offence
on complaint shall do on receipt of such a
complaint. Section 202 says that the Magistrate
may, if he thinks fit, for reasons to be recorded in
writing, postpone the issue of process for
compelling the attendance of the person
complained against and direct an inquiry for the
purpose of ascertaining the truth or falsehood of
the complaint; in other words, the scope of an
inquiry under the section is limited to finding out
the truth or falsehood of the complaint in order to
determine the question of the issue of process. The
inquiry is for the purpose of ascertaining the truth
or falsehood of the complaint; that is, for
ascertaining whether there is evidence in support
of the complaint so as to justify the issue of
process and commencement of proceedings
against the person concerned. The section does not
say that a regular trial for adjudging the guilt or
otherwise of the person complained against should
take place at that stage; for the person complained
against can be legally called upon to answer the
accusation made against him only when a process
has issued and he is put on trial. Section 203, be it
noted, consists of two parts: the first part indicates
what are the materials which the Magistrate must
consider, and the second part says that if after
considering those materials there is in his
judgment no sufficient ground for proceeding, he
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may dismiss the complaint. Section 204 says that
if in the opinion of the Magistrate there is
sufficient ground for proceeding, he shall take
steps for the issue of necessary process.”
15. The question again came up for consideration before this Court
recently in Divine Retreat Centre v. State of Kerala & Ors. [AIR 2008 SC
1614], wherein this Court opined that the jurisdiction of the High Court
even in terms of Section 482 of the Code is not unlimited. It was held that
even in a case where no action is taken by the police, the informant’s
remedy lies under Sections 190 and 200 of the Code.
Similar view has been expressed by this Court in Sakiri Vasu v. State
of Uttar Pradesh and Others [(2008) 2 SCC 409].
16. It is in the aforementioned backdrop the decision of this Court in
Chandra Deo Singh (supra) may be considered. Therein, this Court opined
that although an accused has no right to participate unless the process is
issued, he may remain present either in person or through a counsel or agent
with a view to be informed of what is going on. It was held that one of the
objects behind the provisions of Section 202 of the Code is to enable the
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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 obviously frivolous complaint but that is not the stage where
defence of an accused can be gone into, stating:
“…An enquiry under Section 202 can in no
sense be characterised as a trial for the simple
reason that in law there can be but one trial for an
offence. Permitting an accused person to intervene
during the enquiry would frustrate its very object
and that is why the legislature has made no
specific provision permitting an accused person to
take part in an enquiry. It is true that there is no
direct evidence in the case before us that the two
persons who were examined as court witnesses
were so examined at the instance of Respondent 1
but from the fact that they were persons who were
alleged to have been the associates of Respondent
1 in the first information report lodged by
Panchanan Roy and who were alleged to have
been arrested on the spot by some of the local
people, they would not have been summoned by
the Magistrate unless suggestion to that effect had
been made by counsel appearing for Respondent 1.
This inference is irresistible and we hold that on
this ground, the enquiry made by the enquiring
Magistrate is vitiated…”
It was emphasized that the question as to whether a process has to be
issued or not lies within the exclusive domain of the Magistrate so as to
enable him to arrive at a satisfaction that there is sufficient ground for
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proceeding but not with a view to see as to whether there is sufficient
ground for conviction, stating:
“…No doubt, as stated in sub-section (1) of
Section 202 itself, the object of the enquiry is to
ascertain the truth or falsehood of the complaint,
but the Magistrate making the enquiry has to do
this only with reference to the intrinsic quality of
the statements made before him at the enquiry
which would naturally mean the complaint itself,
the statement on oath made by the complainant
and the statements made before him by persons
examined at the instance of the complainant.”
17. In Mohd. Yousuf (supra), whereupon reliance has been placed by
Mr. Jaspal Singh, this Court made a distinction between a pre-cognizance
stage and post-cognizance stage. It was opined that an order under Sub-
section (3) of Section 156 of the Code need not be passed when the
Magistrate intends to take cognizance. Extensively referring to the
decisions in Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986] and
Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee [AIR
1950 Cal 437] as also other decisions, it was held that as in those cases
cognizance had not been taken.
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18. 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.
19. 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.
20. The Appeal is allowed.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Cyriac Joseph]
New Delhi;
December 17, 2008
.
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