Girdharilal vs Pratap Rai Mehta

Venkataraman, J.—This Petition is filed by the respondents in Criminal Revision Petition No. 398/88 for recalling the order dated 4-11-1988 passed in the said Revision Petition.

The Cr.R.P. No. 398/88 had been filed by the complainant in PCR. No. 87/88 on the file of the IV Additional C.M.M., Bangalore, against the order passed by the learned Magistrate dismissing his complaint. This Court by an order dated 4-11-1988 has allowed that Revision Petition and has remitted the matter back to the Magistrate with a direction to make further enquiry and to dispose of the complaint in accordance with law in the light of the observations made in the order.

As the order in the Criminal Revision Petition had been made on merits, the respondent had raised an objection regarding the maintainability of this Criminal Petition for recalling the order. The Court after hearing both the sides on the question of maintainability of the Petition, has by order dated 1-6-1989 held that the present Petition is not for review of the order already passed but is only for recalling the order and that the Petition is therefore maintainable u/s 482 Cr.P.C. However, this Court has observed that it would be for the present petitioners to substantiate their contention that they are entitled to invoke the inherent jurisdiction of this Court at the time of hearing.

Now the point to be considered is whether the present petitioners have made out any ground for recalling the order already passed by this Court in the Criminal Revision Petition.

The learned Counsel for the petitioners contended that under Sub-section (2) of Section 401 Cr.P.C. no order can be passed u/s 401(1) to the prejudice of the accused or other person unless he had an opportunity of being heard and that as in this case no notice was issued to the petitioners in the Criminal Revision Petition the order passed by the learned Single Judge has to be recalled. He also sought to contend that the reasons given by the learned single Judge for setting aside the order of the Magistrate and remitting the matter for further enquiry was not correct.

I must point out that in this Petition it is not open to the petitioners to contend that the order of the learned Single Judge is not correct on merits, What has to be decided is whether notice was required to be issued to the petitioners and if so whether the order passed without issue of notice to the petitioners requires to be recalled?

The Revision Petition was filed by the respondent against the order of the learned Magistrate dismissing the complaint. It is well settled that the accused have no right to participate in the proceedings before issue of summons to him/them by the Court u/s 204 Cr.P.C. and that they are not entitled to any notice at that stage. In Chandra Deo Singh Vs. Prokash Chandra Bose and Another, The Revision filed by the complainant against the order of dismissal of a complaint is covered by the provisions of Section 398 Cr.P.C. and not u/s 401 Cr.P.C. Section 398 Cr.P.C. which empowers the High Court or the Sessions Judge to order enquiry reads as hereunder :-

"Section 398 Cr.P.C. :- Power to order inquiry :- On examining any record u/s 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed u/s 203 or Sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged :

Provided that no Court shall make any direction under this Section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made."

The main provision deals with two classes of cases namely a case where the complaint is dismissed u/s 203 or under Sub-section (4) of Section 204 and a case where the accused has been discharged. It is significant to note that the Proviso stipulates an opportunity being given only to the person who has been discharged before an order for an inquiry is made. Where a complaint has been rejected u/s 203, the Proviso does not stipulate that any notice should be issued to the accused persons before ordering further inquiry in such a complaint. The reason is obvious. Till process is issued by the Magistrate the accused will not actually be in the position of an accused and he will not have any right to take part in the further inquiry that may be ordered by the Sessions Judge or High Court.

The earliest case on this aspect is reported in T.S. Ramabhadra Odayar Vs. Emperor, In that case the Sessions Judge had issued notice to the accused in a Revision Petition filed by the complainant whose complaint had been dismissed u/s 203 Cr.P.C. The High Court held that the accused persons have no locus standi in enquiries under Chapter 16 and that principle is equally applicable when the order in such an enquiry is under Revision either in the Sessions Court or in the High Court and that the action of the Sessions Judge in issuing notice to accused was therefore improper, if not illegal.

In S. THIYAGARAJAN v. AYYAMPERUMAL AND ANR. (1984) 3 M.L.J 290 this question has been considered in great detail and a reference has been made to various Authorities. In that Decision it has been held as hereunder :-

"The guideline for the statute is that in a revision against the order of dismissal of a complaint u/s 203, Criminal Procedure Code, no notice need be given to the accused. No restraints and conditions which the legislature itself did not think proper or necessary to impose can be brought in by the backdoor on the concept of natural justice. In a revision filed against an order of dismissal u/s 203, Criminal Procedure Code, the learned Sessions Judge need not give notice to the accused."

The same view is taken by the Madras High Court in two Decisions reported in E. Mohammed Hussain and Others Vs. F. Jagbar Nachiar and Another, and in Somu alias Somasundaram and Others Vs. The State and Another,

The learned Counsel for the petitioners sought to rely on some observations of the Supreme Court in A.K. Subbaiah and Others Vs. State of Karnataka and Others, to contend that notice was necessary to the petitioners. That was a case where the State had filed complaint of defamation against the petitioners in respect of certain allegations made against the Chief Minister and the Director General of Police, In the Revision Petition filed against the issue of process the Chief Minister and the Director General of Police had been impleaded as respondents. This Court directed the deletion of those two persons as respondents on the ground that they were not at all parties to the proceedings in the lower Court, That order was challenged before the Supreme Court and the Supreme Court while upholding the order of this Court has observed as hereunder:-

"Apparently this sub-section contemplates a situation where a person may not be an accused person before the Court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction u/s 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the Court below nor is expected at any stage even after the revision to be joined as party."

The above observations were made with reference to Clause (2) of Section 401. As already pointed out this is a case to which Section 398 Cr.P.C. is applicable. That apart, the above observations cannot be taken to lay down that in a case against the order of dismissal of complaint u/s 203 Cr.P.C. notice should be issued to the persons impleaded as accused in a complaint before the Court can order further inquiry of the complaint.

In view of the fact that there was no need for the Court to issue notice to the petitioners, before passing the order directing further inquiry u/s 398 Cr.P.C., it follows that that order passed by this Court cannot be recalled on the ground that the order has been passed without notice to the petitioners.

For the above reasons this Petition is rejected.