Awadesh Singh vs Rahul Gandhi and Others

Sujoy Paul, J—This petition filed under Section 482 Cr.P.C. assails the order dated 7.4.2015 whereby the Revisional court without summoning the non-applicants directed the petitioner to argue the matter.

Shri Anil Mishra, learned counsel for the petitioner submits that the petitioner filed a complaint against the respondents. The said complaint was erroneously rejected by learned Judicial Magistrate 1st Class on 20.1.2015. Then, the petitioner filed a Criminal Revision which was registered as Cr.R. No. 66/15. The Revisional Court by order dated 18.2.2015 admitted the petition and directed the revisionist to pay P.F. The respondents before the Revisional Court were directed to be summoned. Thereafter, on 7.4.2015 the Revisional Court opined that although summons were directed to be issued to the other side on 18.2.2015 since the learned Magistrate has rejected the complaint without hearing the accused/non-revisionist, therefore, there is no need to serve the accused/non-revisionist.

Criticizing this order, it is contended that this amounts to reviewing the earlier order dated 18.2.2015. By placing heavy reliance on Section 362 Cr.P.C., Shri Anil Mishra submits that once the order is passed, the Judicial Officer cannot alter or correct it. He relied on Sunita Jain Vs. Pawan Kumar Jain and Others, (2008) 1 DMC 324 : (2008) 2 JT 19 : (2008) 2 SCALE 13 : (2008) 2 SCC 705 . He further submits that as per Section 401(2) of Cr.P.C., it is necessary to hear the accused.

Per contra, learned counsel for the respondents supported the order. They submit that there is no illegality in the order impugned. Hence, the powers under Section 482 Cr.P.C. are not required to be exercised. In support of their contention, learned counsel for the respondents relied on certain provisions of Cr.P.C.

I have heard the learned counsel for the parties at length and perused the record.

It is not in dispute between the parties that the complaint of the petitioner was dismissed by the Magistrate without noticing the other side. In the impugned order, the Revisional Court has given a finding that the complaint was dismissed by order dated 20.1.2015 under Section 203 Cr.P.C. Section 203 Cr.P.C. is in Chapter XV which deals with complaints to Magistrate. Section 203 reads as under:-

"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 instigation (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."

This section makes it clear that complaint may be dismissed if no sufficient ground for proceeding is made out. Chapter XV1 deals with commencement of proceedings before the Magistrate. Section 204 deals with issue of process. In the present case, this stage had never come. Complaint is dismissed under Section 203 Cr.P.C. without noticing the other side. Thus, following questions emerge from the argument of the parties:-

(i) Whether the order dated 7.4.2015 is an illegal order and hit by Section 362 Cr.P.C.?

(ii) Whether the Revisional Court was required to issue summons to the other side when order impugned is admittedly passed under Section 203 Cr.P.C.?

Section 362 Cr.P.C. reads as under:-

"362. Court not to alter judgment.--Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

A simple reading of this provision makes it clear that it talks about final order/judgment. It does not deal with interlocutory order passed by the court. In the case of Sunita Jain (supra), the Supreme Court opined that the court cannot alter or review its judgment or final order after it is signed. After considering scheme of the Code, it is held that as a general rule, as soon as the judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it). This judgment does not help the petitioner at all. The Revisional Court after passing the earlier order dated 18.2.2015 did not become functus officio. After passing of said order, the Revisional Court did not cease control over the case. Hence, the argument advanced in this aspect must fail.

So far the second question aforesaid is concerned, the law is settled on this point. In Chandra Deo Singh Vs. Prokash Chandra Bose and Another, AIR 1963 SC 1430 : (1964) 1 SCR 639 , the Apex Court opined that scheme of Chapter XVI of Cr.P.C. shows that accused person does not come into picture at all till process is issued.

This Court in Ratanlal Soni Vs. Kailash Narayan Arjariya, (1998) 2 MPLJ 321 has considered the question whether the Additional Sessions Judge was correct in disposing of the revision on merits without notice to accused persons who were arrayed as non-applicants before him. This Court opined that the Judicial Magistrate did not issue process against accused persons and, therefore, they were not entitled to be heard. This Court opined that the heart of the matter is whether an accused has any role to play before the issuance of process. The grievance of the complainant was that the Magistrate had refused to issue process to the accused persons. The said order was the subject matter of challenge in revision. The accused has no locus standi to participate before the process is issued. Para 4 of this judgment shows that the contention of petitioner before this Court was that the Revisional Court has erred in law in passing the impugned order without issuing notice to the accused/non-applicants therein. This Court, for the reasons stated above, did not accept the said contention and dismissed the revision. This judgment squarely covers the point in hand. Section 401(2) Cr.P.C. is of no assistance to the petitioner. The said provision deals with power of the High Court and cannot be pressed into service to examine the validity of impugned order.

Resultantly, in my view, the court below has not committed any error of law in directing that the impugned order is passed under Section 203 Cr.P.C. and, therefore, non- applicants are not required to be heard. This order is in consonance with the scheme of Cr.P.C. The court below had inherent jurisdiction to act in accordance with law. This does not amount to review the earlier order. Even otherwise, no prejudice is caused by this order to the petitioner. Petitioner is still free to satisfy the Revisional Court about merits of the case. I find no legal infirmity in the order which warrants interference in this petition.

Petition is bereft of merits and is hereby dismissed.