MOHIT @ SONU vs. STATE OF U.P.

‘ REPORTABLE’ IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 814 OF 2013 (Arising out of SLP (CRL.) No.1619 of 2010) Mohit alias Sonu and Another …..Appellants Versus State of U.P. and Another ….Respondents J U D G M E N T M.Y. EQBAL, J. Leave granted. th 2. This appeal is directed against the order dated 28 October, 2009 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No. 22823 of 2009 whereby rd the order dated 3 August, 2009 passed by learned Additional JUDGMENT Sessions Judge, Fast Track Court No. 2, Mathura, rejecting the application moved by the complainant/respondent No. 2 herein under Section 319 of the Code of Criminal Procedure, 1973 in Sessions Trial No. 420 of 2007 was set aside and the trial court was directed to summon the accused/appellants herein. Page 1 2 3. The complainant/respondent No. 2 herein (Deepak) lodged an FIR naming seven persons as accused regarding the occurrence th which took place on 7 February, 2003 at 10.30 p.m. stating that

th complainant. The complainant was medically examined on 8 February, 2003 and a lacerated wound of 4 cm x 0.8 cm scalp deep on left side back of his skull was reported by the doctor. Kamta Prasad succumbed to his injuries alleged to have been caused by the accused. The accused were named in the FIR vide Case Crime No. 44/03 under Sections 147, 323, 504, 506, 304 of the Indian Penal Code (in short, “I.P.C.”). The injured complainant as well as other witnesses were examined by the Investigating Officer (I.O.), but the I.O. submitted charge-sheet only against five accused leaving the names of two accused who are appellants before us. JUDGMENT After committal of the case for trial, the trial court in S.T. No. 420 of 2007 examined the complainant as PW-1. In his examination- in-chief, the complainant specifically stated the role of the appellants herein in the occurrence. The complainant then moved an application under Section 319 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) for summoning the appellants herein as th accused in the case. However, the trial court vide order dated 25 Page 2 3 July, 2008 disposed of the application in view of the fact that cross-examination of PW-1 had not completed and the fact had not been cleared from the witness that there existed probability of the

Court of Judicature at Allahabad against the above order, the High rd Court vide judgment and order dated 3 September, 2008 found no error in the order passed by trial court as the trial court had till then not finally decided the question of summoning the appellants and had simply postponed the issue as it thought that the matter should receive its due and proper consideration only after the cross- examination of the witness is over. Subsequently, PW-2 Vivek and PW-3 Deepak Kumar Dubey were also examined apart from the complainant. The second application filed under Section 319, rd Cr.P.C. was also rejected by the trial court vide order dated 3 JUDGMENT August, 2009 after considering various legal pronouncements, discussing the statements of PW-1, PW-2 and PW-3 and finding out that the e vide nce on record is improper and contradictory. Challenging this order, the complainant again filed a Criminal Miscellaneous Application under Section 482, Cr.P.C. which was th allowed by the High Court vide order dated 28 October, 2009 impugned herein holding that the lower court committed error in Page 3 4 rejecting the application of the complainant/respondent No.2 for summoning the accused-appellants herein despite the prima facie evidence adduced by the prosecution disclosing their involvement in

impugned order directed the lower court to summon the accused- appellants herein as per provisions under Section 319, Cr.P.C. 4. In arriving at its conclusion, the High Court in the impugned order observed as under: “3. …. From the perusal of the statements of the witnesses, it appears that the accused persons named Mohit and Sarthak also have committed the offence. There is ample e vide nce against the accused persons. They are named in the F.I.R. They are named in the statements of the witnesses recorded by the investigating officer as per provisions under section 161 Cr.P.C. There is specific role attributed to the accused persons and it cannot be said that they have not participated in the crime. The learned lower court relying on the assertion made on the affidavit of some witnesses which cannot be read at the stage of summoning the accused persons under section 319 Cr.P.C., wrongly discussed the e vide nce of the witnesses on record in a cursory manner thereby rejecting the application of the applicant. …… therefore, they are liable to be summoned. JUDGMENT xxx xxx xxx 6. In the light of the law as is aforesaid, the perusal of the impugned order revealed that lower Page 4 5

JUDGMENT xxx xxx xxx 8. Thus the learned lower court thereby analyzing the e vide nce on record wrongly took recourse of the facts that PW-2 and PW-3 have not proved the Page 5 6

Hence, this appeal by special leave. 5. Mr. Amarendra Sharan, learned senior counsel appearing for the appellants while assailing the impugned order passed by the High Court as being illegal and wholly without jurisdiction, raised JUDGMENT two important points for consideration. Learned counsel firstly contended that the order passed by the Sessions Court on the application under Section 319 Cr.P.C. refusing to issue summons to the non-accused person ought to have been challenged by the complainant before the High Court invoking its revisional jurisdiction under Section 397/401 Cr.P.C. According to the learned counsel, application of the complainant before the High Court under Section 482 of Cr.P.C. challenging the order passed under Section Page 6 7 319, Cr.P.C. was not maintainable. Secondly, Mr. Sharan submitted that, in any view of the matter, the High Court while exercising its inherent jurisdiction under Section 482 Cr.P.C. ought to have given

learned counsel submitted that the High Court while deciding the petition of the complainant under Section 482 Cr.P.C. on the first motion upset the reasoned order of the trial court and despite the fact that the entire e vide nce adduced till the decision on the application under Section 319 Cr.P.C. by the trial court was not before the High Court, even then the High Court exercised its discretion without issuing notice and giving opportunity of hearing to the appellants. On the merits of the case, learned counsel contended that for the purpose of exercising power under Section 319 Cr.P.C., the Court must be satisfied about the existence of JUDGMENT sufficient e vide nce on record and not only on the basis of prima facie case. Learned counsel contended that the trial court rightly refused to summon the appellants on the ground that the witnesses were contradicted on their earlier statement and that the witnesses in their statement under Section 164 Cr.P.C. have denied the presence of these appellants. Learned counsel put reliance on the decision of this Court in Sarabjit Singh and Another v. State of Page 7 8 Punjab and Another (2009) 16 SCC 46; Hardeep Singh v. State of Punjab and others (2009) 16 SCC 785 and Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others (1983) 1 SCC 1. 6. On the other hand, Mr. Ashok Bhan, learned senior counsel appearing for the respondent/complainant submitted that from the e vide nce adduced by the witnesses, the role played by the appellants has become apparent and the trial court has committed serious error of law in refusing to issue summons to the non- accused appellants. Learned counsel relied upon the decisions of this Court in Lok Ram v. Nihal Singh and Another (2006) 10 SCC 192; and Sarojben Ashwinkumar Shah and Others. v. State of Gujarat and Another (2011) 13 SCC 316. Mr. Bhan contended that it is the discretion of the Court to give notice to the JUDGMENT accused for the purpose of issuing summons against them. According to the learned counsel, there cannot be pre-cognizance herein. Further, the High Court in exercise of power under Section 482 Cr.P.C., can see the correctness and propriety of the order passed by the trial court. Learned counsel relied upon the decision of this Court in Bangarayya v. State of Karnataka and Others (2010) 15 SCC 114. Page 8 9 7. Before going into the merits of the case, we would like to answer the two important points raised by the appellants i.e., (i)

319 Cr.P.C. is maintainable; and (ii) whether the High Court before passing the impugned order ought to have given notice and opportunity of hearing to the appellants. 8. Since both the points raised by Mr. Amarendra Sharan, learned senior counsel appearing for the appellants, being interlinked, they are discussed here together. However, before discussing those points, we would like to refer some of the relevant provisions of the Code of Criminal Procedure. 9. Section 397 Cr.P.C. confers power of revision on the High Court or any Sessions Court, which reads as under:- JUDGMENT “ 397. Calling for records to exercise powers of revision -- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on Page 9 1 his own bond pending the examination of the record.

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” 10. Section 399 deals with Sessions Judge’s power of revision, whereas Section 401 deals with the power of revision of the High Court. Section 401 reads as under:- “ 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 di vide d in opinion, the case shall be disposed of in the manner pro vide d by section 392. JUDGMENT (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 Page 10 1 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.

(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.” 11. From bare reading of the aforesaid two provisions, it is clear that in exercise of revisional power under the aforesaid JUDGMENT provisions, the High Court can call for the records of any criminal court and examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. However, sub-section (2) of Section 397 puts a restriction on exercise of such power in relation to an interlocutory order passed by the criminal courts in any appeal, inquiry, trial or other proceeding. Page 11 1 12. Similarly, Section 401 empowers the High Court to call for any record in order to examine the correctness, legality

that no order shall be made by the High Court in exercise of revisional jurisdiction affecting and prejudicing the right of the accused or other person, unless he has been given opportunity of hearing either personally or by pleader in his own defence. 13. Section 482 Cr.P.C. which deals with the inherent power of the High Court is extracted hereinbelow:- “ 482. Saving of inherent power of High Court -- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” JUDGMENT 14. The power under Section 397 vis-à-vis Section 482 of Cr.P.C. has been elaborately discussed and explained in the case of Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551. The facts of that case were that the appellant was said to have Page 12 1 made certain statements and handed over a press hand-out containing defamatory statements against the then Law Minister of the respondent-State. The State Government decided to prosecute

the Sessions Judge took cognizance of the offence under Section 199(2) Cr.P.C. The appellant contended that even assuming allegations imputed to him were defamatory, they were not made against the Minister in discharging his public functions, but only in his personal capacity. The Sessions Judge rejected these contentions. On revision, the High Court held that a revision petition was not maintainable under Section 397(2) Cr.P.C. since the order of the Sessions Judge was an interlocutory order. A 3- Judge Bench of this Court discussing the object of the two provisions i.e. Section 397(2) and Section 482 of Cr.P.C. observed JUDGMENT as under:- “ 10 . As pointed out in Amar Nath’s case [(1977) 4 SCC 137] the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding, is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by Page 13 1

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JUDGMENT 15. This Court further observed:- “13 . In S. Kuppuswami Rao v. King [AIR 1949 FC 1] Kania, C.J. delivering the judgment of the Court has referred to some English decisions at pp. 185 and 186. Lord Esher M.R. said in Salaman v. Warner (1891) 1 QB 734 : “If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if Page 15 1

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16. In the case of Amar Nath & Ors . v . State of Haryana & Ors. (1977) 4 SCC 137, two provisions i.e Sections 397 and 482 have been considered and term ’interlocutory order’ has been fully discussed. In that case, an FIR was lodged mentioning a number of accused persons including the appellants as having participated in the occurrence which resulted in the death of the deceased. The police after holding investigations, submitted a charge-sheet against the other accused persons except the JUDGMENT appellants against whom the police opined that no case at all was made out as no weapon was recovered nor was there any clear e vide nce about the participation of the appellants. After submission of the final report, the Judicial Magistrate accepted the report and set the appellants at liberty. The complainant thereafter filed a revision petition before the Additional Sessions Judge against the order of the Judicial Magistrate releasing the Page 18 1 appellants, but the same was dismissed. The informant filed a regular complaint before the Judicial Magistrate against all the 11 accused including the appellants. The Magistrate after having

made out against the appellants. Thereafter, the complainant took up the matter in revision before the Sessions Judge, who this time allowed the revision petition and remanded the matter to the Judicial Magistrate for further enquiry. The Judicial Magistrate on receiving the order of the Sessions judge issued summons to the appellants straightaway. The appellants then moved the High Court under Sections 482 and 397 of the Code for quashing the order of the Judicial Magistrate, mainly on the ground that the Magistrate had issued the summons in a mechanical manner without applying his judicial mind to the JUDGMENT facts of the case. The High Court dismissed the petition in limine and refused to entertain it on the ground that as the order of the Magistrate summoning the appellants was an interlocutory order, a revision to the High Court was barred by virtue of sub- section (2) of Section 397 of Cr.P.C. The High Court further held that as the revision was barred, the Court could not take up the case under Section 482 in order to quash the very order of the Page 19 2 Judicial Magistrate under Section 397 of Cr.P.C. Answering the question raised, Hon’ble Fazal Ali, J. delivering the judgment on behalf of the Bench, observed :-

JUDGMENT 17. So far as the question as to whether the order of the Judicial Magistrate was an interlocutory order is concerned, Their Lordships after discussing the legislative background of the provisions held:- “6….The main question which falls for determination in this appeal is as to what is the connotation of the term “interlocutory order” as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term “interlocutory order” is a term of well-known legal significance and does not present any serious difficulty. It has been used in various Page 20 2

JUDGMENT In the concluding paragraph, this Court finally held:- “Applying the aforesaid tests, let us now see whether the order impugned in the instant case can be said to be an interlocutory order as held by the High Court. In the first place, so far as the appellants are concerned, the police had submitted its final report against them and Page 21 2

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18. In the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983) 1 SCC 1, this Court relying upon the earlier decision in Madhu Limaye case (supra) observed:- “5. After the coming into force of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “present Code”), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised under Section 397 of the present Code, the High Court could exercise those very powers under Section 482 of the present Code. It is true that Section 397(2) clearly bars the jurisdiction of the court in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra (1978) 1 SCR, 749 where this Court pointed out that Section 482 of the present Code had a different parameter and was a provision independent of Section 397(2). This Court further held that while Section 397(2) applied to the exercise of revisional powers of the High Court, Section 482 regulated the inherent powers of the court to pass orders necessary in order to prevent the abuse of the process of JUDGMENT Page 23 2 the court. In this connection, Untwalia, J. speaking for the Court observed as follows: [SCC para 10, pp. 555-56 : SCC (Cri) P. 15]

JUDGMENT 6. It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or Page 24 2

19. In the case of Raj Kapoor & Ors. v. State & Ors. (1980) 1 SCC 43, Justice Krishna Iyer, while distinguishing the power of the High Court under Section 397 vis-à-vis Section 482 of Cr.P.C. observed that Section 397 or any of the provisions of Cr.P.C. will not affect the amplitude of the inherent power preserved in Section 482. JUDGMENT Even so, easy resort to inherent power is not right except under compelling circumstances. Inherent power should not invade areas set apart for specific power under the same Code. 20. In the light of the ratio laid down by this Court referred to hereinabove, we are of the considered opinion that the order passed by the trial court refusing to issue summons on the application filed by the complainant under Section 319 of Cr.P.C. cannot be held to be an Page 25 2 interlocutory order within the meaning of sub-section (2) of Section 397 of Cr.P.C. Admittedly, in the instant case, before the trial court the complainant’s application under Section 319 of Cr.P.C. was

summons. The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. As held by this Court in Amar Nath’s case (supra), an order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) of Cr.P.C. 21. In the instant case as noticed above, when the complainant’s application under Section 319 of Cr.P.C. was rejected for the second time, he moved the High JUDGMENT Court challenging the said order under Section 482 of Cr.P.C. on the ground that the Sessions Court had not correctly appreciated the facts of the case and the e vide nce brought on record. The complainant wanted the High Court to set aside the order after holding that the e vide nce brought on record is sufficient for coming to the conclusion that the appellants were also involved in the commission of the offence. Page 26 2 22. In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section

provisions contained in sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 of Cr.P.C. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 of Cr.P.C., the High Court before passing the order would have given notice and opportunity of hearing to the appellants. 23. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we JUDGMENT would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy pro vide d in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the Page 27 2 court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.

such power. Section 151 of C.P.C. reads:- “Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.” 25. This Court in the case of Padam Sen & Anr. v. State of Uttar Pradesh, AIR 1961 SC 218 regarding inherent power of the Court under Section 151 C.P.C. observed:- “The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict what has been expressly pro vide d in the Code or against the intentions of the Legislation. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly pro vide d in the Code.” JUDGMENT Page 28 2 26. In a Constitution Bench decision rendered in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, this Court held that :-

27. The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-à-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy pro vide d by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to. JUDGMENT 28. The second question that needs consideration is as to whether the High Court exercising its revisional jurisdiction or inherent jurisdiction under Section 482 Cr.P.C., while considering the legality and propriety of the order passed under Section 319 of Cr.P.C. Code is required to give notice and opportunity of hearing to the person in whose favour some right accrued by virtue of order passed by the trial court. In other words, whether it would be justified for the High Court Page 29 3 to entertain a petition under Section 482 of Cr.P.C. and pass order to the prejudice of the accused or other person (the appellants herein) without giving notice and opportunity of hearing to them.

summons on the ground that no prima facie case has been made out on the basis of e vide nce brought on record. As discussed hereinabove, when the Sessions Court order has been challenged, then it was incumbent upon the revisional court to give notice and opportunity of hearing as contemplated under sub-section (2) of Section 401 of Cr.P.C. In our considered opinion, there is no reason why the same principle should not be applied in a case where such orders are challenged in the High Court under Section 482 of Cr.P.C. 30. Recently, a 3-Judge Bench of this Court in the case of JUDGMENT Manharibhai Muljibhai Kakadia and Another v. Shaileshbhai Mohanbhai Patel and Others (2012) 10 SCC 517 considered the question as to whether in a case where an order of the Magistrate dismissing the complaint under Section 203 of Cr.P.C. at the stage under Section 200, the accused or a person who is suspected to have committed the crime is entitled to hearing by the revisional court. After considering all the earlier decisions, in the case of P . Page 30 3 Sundarrajan v. R. Vidya Sekar (2004) 13 SCC 472, Raghu Raj Singh Rousha v. Shivam Sundaram Promotors (P) Ltd . (2009) 2 SCC 363 and A.N.Santhanam v. K. Elangovan (2012) 12 SCC 321, this Court held as under:- “53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan , Raghu Raj Singh Rousha and A.N. Santhanam . We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.” JUDGMENT Page 31 3 31. The same question came up for consideration before different High Courts some of which we would like to refer hereinbelow. In the case of Sayeed Bhagat and Others v. State of Andhra Pradesh

Section 319 of Cr.P.C. to summon the remaining accused persons who were named by the witnesses. The Magistrate refused the said prayer mainly for want of sufficient e vide nce. The said order was challenged in revision by the complainant. The revisional court set aside the order of the Magistrate without hearing the petitioners against whom prayer was made for issuance of summons. When the matter came up before the High Court, the Bench held as under:- “8. In the instant case also though the jurisdiction of the Court to summon a person under Section 319 of the Cr.P.C. cannot be questioned, the revisional Court, in my view should have heard the petitioners before passing the impugned order because the same has prejudiced them.” JUDGMENT 32. In a similar case in Satish Chandra Dey v. State of Jharkhand & Anr. 2008 (2) AIR Jhar R 330, the order of Sessions Judge was challenged in the High Court under Section 482 of Cr.P.C. on the ground inter alia that the Sessions Judge directed the Magistrate to summon the petitioner to face trial along with other Page 32 3 accused though the trial court had refused to exercise its jurisdiction to summon the petitioner to face trial. The question raised before the High Court was that the revisional court has erred in law in passing

“10. Thus it is e vide ntly clear from the relevant provision of law that no order to the prejudice of an accused or any other person can be made unless the said accused or the said persons have been given an opportunity of being heard. 11. In the instant case also learned Sessions Judge in absence of the petitioner has passed the impugned order whereby he directed the trial Court to implead the petitioner as an accused in the proceeding which in view of the provision as contained in Sections 399/401/401(2) of the Code of Criminal Procedure is illegal. 12. In the result, this application is allowed and the impugned order dated 23.6.2006 s set aside and the case is remanded to the learned Sessions Judge, Bokaro for hearing afresh after giving due notice to the parties so that the same be disposed of in accordance with law.” JUDGMENT 33. Since the reasoning discussed hereinabove would be suffice to dispose of the present appeal, we do not wish to go into the merits of the case with regard to the scope of the provisions of Section 319 of Cr.P.C. 34. After giving our anxious consideration in the matter, we conclude by holding that the High Court has committed a grave error in passing Page 33 3 the impugned order for the reasons given hereinbefore. We, therefore, allow this appeal, set aside the order of the High Court and remand the matter back to the High Court to consider the matter

…………………………….J. (P. Sathasivam) …………………………….J. (M.Y. Eqbal) New Delhi, July 1, 2013. JUDGMENT Page 34