K. Rajasekar vs A. Abdul Gafoor

Mr. Justice P.R. Shiva Kumar

This Criminal Revision Case has been filed against the order of the learned Additional District and Sessions Judge (F.T.C. No. II),

Tiruchirappalli dated 27.05.2005 made in Crl.R.C. No. 46 of 2004 on the file of the said court. The said Criminal Revision Case was filed by the

respondent herein/the de-facto complainant as against the order of the Chief Judicial Magistrate, Tiruchirappalli, dated 20.03.2006 made in

Crl.M.P. No. 1796 of 2003, on the file of the learned Chief Judicial Magistrate, Tiruchirappalli.

The respondent herein preferred a complaint u/s 200 Cr.P.C, on the file of the learned Chief Judicial Magistrate, Tiruchirappalli, alleging

commission of offences punishable u/s 120-B, 218, 364-A, 342 and 387 IPC. The learned Chief Judicial Magistrate, Tiruchirappalli, who chose

to keep the said complaint as a Criminal Miscellaneous Petition in Crl.M.P. No. 1796 of 2003, following the Private Complaint Procedure,

recorded the sworn statements of Abdul Gafoor/the revision Petitioner before this Court/Complainant and three others, namely, Seeni Beer,

Nagoor Meeran and Shajahan produced as witness on the side of the complainant. Upon considering the complaint and the sworn statements of

the complainant and the witnesses produced by the complainant, the learned Chief Judicial Magistrate, Tiruchirappalli came to the conclusion that

there was no sufficient ground for proceeding against the respondents/persons cited as accused in the complaint and dismissed the complaint u/s

203 Cr.P.C.

Aggrieved by the said order of dismissal of the private complaint, the respondent before this Court/complainant preferred a revision before the

Sessions Court u/s 397 Cr.P.C. The same was heard and disposed of by the learned Additional District and Sessions Judge (FTC No. II),

Tiruchirappalli by the impugned order, dated 27.05.2005. By the said order, dated 27.05.2005, the learned Additional District and Sessions

Judge (FTC No. II), Tiruchirappalli allowed the Criminal Revision Case. 46 of 2004 filed by the respondent herein, set aside the order of the

learned Chief Judicial Magistrate, dated 07.04.2004 and directed the learned Chief Judicial Magistrate to take the case on file and dispose of the

case on merits following the judgments of the Honourable Supreme Court cited in the order of the learned Additional District and Sessions

judge(FTC No. II), Tiruchirappalli/first Court of revision. Aggrieved by and questioning the correctness and legality of the same, the present

revision petitioner, who figured as the second respondent before the first revisional court and second accused in the complaint has preferred the

present Civil Revision Case on various grounds set out in the grounds of revision.

Before admission, notice was issued indicating that the revision would be finally disposed of in either way at the time of admission itself. Upon

service of notice, the respondent, who was the complainant before the trial court entered appearance through counsel. As this Court was of the

considered view that the revision could be disposed of at the time of admission itself, notice was issued and the respondent entered appearance

through counsel.

The arguments advanced by Mr. T. Senthil Kumar, learned counsel for the petitioner and by Mr. Veerakathiravan, learned counsel for the

respondent are heard. The grounds of revision, copies of the orders of the court below and copies of the other documents produced in the form of

typed-set of papers were also perused. Upon such perusal in the light of the points raised by the learned counsel appearing for both parties in their

arguments, this Court passes the following order.

The person cited as the second accused in the private complaint preferred by the respondent herein is the revision petitioner before this Court.

Of course, it is the second revision. But, the first revision was preferred before the Sessions Court not by the present revision petitioner, but by the

respondent herein/complainant against the order of the learned Chief Judicial Magistrate, dated 07.04.2004 dismissing his complaint. The

respondent herein emerged as the successful party before the first revisional Court and the said order of the first revisional Court is now challenged

by the present revision petitioner seeking restoration of the order of the Trial Judge, namely learned Chief Judicial Magistrate, Tiruchirappalli. As

such, the bar provided under sub-section (2) of Section 397 and sub-section (3) of Section 399, the entertainment of a second revision does not

get attracted as the present revision petitioner is not the same person, who preferred the revision before the first revisional Court, namely, learned

Additional District and Sessions Court(FTC No. II), Tiruchirappalli.

The short ground on which the order of the first revisional Court is challenged by the revision petitioner herein is that the principle of Audi

alteram partem which is again embodied in sub-section (2) of Section 401 r/w Section 399, Sub-section(1) and (2) of Cr.P.C. was violated since

the order under challenge was passed without notice to the present revision petitioner and without affording an opportunity to the revision petitioner

of being heard either personally or by his pleader in his defense.

In support of his contention, the learned counsel for the revision petitioner has referred to the relevant sections, namely, section 399 and 401

IPC and pointed out the fact that Section 401(2) provides that no order in revision 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 defense and that the said provision relating to the

powers of the revision of the High Court is made applicable by subsection (2) of Section 399 to a revision before the Sessions Judge. It is the

contention of the learned counsel for the petitioner that the order of the learned Additional District and Sessions Judge (F.T.C. No. II)

Tiruchirappalli, which is challenged in the revision is liable to be set aside on the above said short ground alone.

In support of his contention, the learned counsel for the petitioner relied on the following orders/judgements:

(1) Shriram Nagordhar Mahajan and Others Vs. State of Maharashtra and Another,

(2) B.B. Mohanti Vs. The State of Rajasthan and Another, and

(3) Raghu Raj Singh Rousha .vs. Shivam Sundaram Promotes Private Limited and another reported in (2009) 1 SCC (Crl) 801.

In the first of the above cited cases, a learned Single Judge of the Bombay High Court, sitting in Aurangabad Bench, has dealt with the scope of

Section 401(2) Cr.P.C. and held that not only a person who has been arraigned as an accused, but also any other person, who may be

prejudicially affected by the order to be passed in the revision, is entitled to a notice and an opportunity of being heard either in person or through

counsel. In fact, in that case, the Judicial Magistrate of First Class concerned, after taking the complaint on file, postponed the issue of process and

examined the witnesses produced by the complainant and thereafter issued process to the accused persons, for lesser offence alone, omitting

graver offences punishable under Sections 395, 307 and 120-B I.P.C. Failure to issue process for the offences u/s 395 and 307 I.P.C., was

challenged by the complainant therein before the Sessions Court. But, the Additional Sessions Judge therein, without issuing notice and without

giving an opportunity to the persons against whom allegations of commission of offences u/s 307 and 395 I.P.C., were made, the learned

Additional Sessions Judge (first revisional Court) allowed the revision and directed issuance of process for the offences punishable under the above

said provisions of I.P.C also. The said order was challenged before the Aurangabad Bench of Bombay High Court by the accused therein. The

learned Single Judge of the Bombay High Court sitting in Aurangabad Bench, after explaining the scope of sections 399 and 401 Cr.P.C. has

referred to the judgement of the Honourable Supreme Court in A.K. Subbaiah and Others Vs. State of Karnataka and Others, wherein, the

Honourable Supreme Court made the following observations:

Section 401(2) 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 the 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.

Referring to the contents of the above said provisions and explaining the scope of Section 401(2), the learned Judge of the Bombay High

Court has made the following observations:

the order passed by the learned revisional Court was patently in violation of the mandate of sub-Section (2) of Section 401 of the Code of

Criminal Procedure. It is to be noted that in Section 439(2) of the Old Criminal Procedure Code of 1898, the only word used was ""the accused "".

The words, ""or other persons "" are mentioned for the first time in the Criminal Procedure Code of 1973. It can thus be clearly seen that the

legislative intent of introducing the words ""or any other person"" also appears to give an opportunity of being heard to any person who is likely to be

prejudicially affected by the order of the revisional Court. This appears to be necessary for advancement of the cause of justice and in consonance

with the principles of natural justice. I have, therefore, no hesitation to hold that before the order is passed to the prejudice of any person, it is

necessary for the revisional Court to hear him in view of the provisions of sub-Section (2) of Section 401 of the Code of Criminal Procedure.

The second one cited by the learned counsel for the revision petitioner is a judgement of a learned Single Judge of the Rajasthan High

Court(Jaipur Bench) expressing the very same view. In the said case, the complaint was taken on file u/s 200 Cr.P.C. and the statement of the

complaint and witnesses were recorded u/s 202 Cr.P.C. and later on, investigation was ordered by the Judicial Magistrate concerned. Pursuant to

the same the police submitted a report and after the receipt of the report, the complaint was heard and the complaint was dismissed. The said

order was challenged before the Additional Sessions Judge by way of a revision and the learned Additional Sessions Judge, without giving an

opportunity of being heard to the persons shown to be the accused in the complaint, allowed the revision and directed the Judicial Magistrate

concerned to register a case against the person shown as accused in the complaint and to proceed with the case in accordance with law. The said

procedure adopted by the first revisional court, namely, Additional Sessions Judge was found fault with by the High Court on the ground that the

said order was vitiated because of the non-issuance of notice and failure to afford an opportunity of being heard to the person who would be

affected by such an order.

In the third judgement cited by the learned counsel for the petitioner, namely Raghu Raj Singh Rousha''s case, the Honourable Supreme Court

held that an order declining request to refer the complaint to the police for investigation and directing the complainant to give sworn statement and

produce witnesses on his side, would amount to taking cognizance of the offence and only issue of process would have been postponed for making

a decision u/s 203 Cr.P.C. The Honourable Supreme Court also has made it clear that when the order is passed by the Magistrate directing

investigation regarding the complaint u/s 156(3) Cr.P.C., the same was an order directing investigation in the pre-cognizance stage, whereas, an

order directing investigation in a case u/s 202 Cr.P.C., is an order directing investigation after taking cognizance of the offences. During the course

of consideration, the Honourable Supreme Court has also made it clear that in case, the Judicial Magistrate chooses to record the sworn statement

of the complainant and the witness produced by him, the same would show that he had taken cognizance of the offence and in such cases, the

power of directing investigation thereafter in a case involving an offence triable exclusively by a court of Sessions is not available to such Magistrate

by virtue of Proviso (a) to Section 202(1) Cr.P.C. Even in case, wherein, the Judicial Magistrate declined to refer the complaint u/s 156(3)

Cr.P.C., to the police for registration of a case and investigation and deciding to take cognizance of the case and proceed with the same u/s 200 to

203 Cr.P.C., a revision filed against such an order refusing to refer the complaint to the police for registration of a case and investigation u/s 156(3)

Cr.P.C. issuance of notice and affording an opportunity to the accused is necessary. In the said judgement, the Honourable Supreme Court also

expressed the very same view expressed by the Bombay High Court and Rajasthan High Court. As per the view, section 401(2) refers not only to

an accused, but also to any person who shall be prejudiced by the order, as the person entitled to a notice and to be heard before such an order is

passed. It has also been made clear by the Honourable Apex Court that once the Judicial Magistrate/Metropolitan Magistrate has refused to

exercise his discretion u/s 156(3) Cr.P.C. to refer the complaint to the police for investigation without taking cognizance of the offence and instead

has taken cognizance of the offence and proceeded with the provisions dealing with the Private Complaint Procedure the same is an order passed

partially in favour of the accused person and in a revision challenging the said order the accused is a person entitled to notice and entitled to be

heard by virtue of Section 401(2) of Cr.P.C.

The above said judgements relied on by the learned counsel for the Revision Petitioner makes it clear that once an order declining a reference

of a complaint to the police u/s 156(3) Cr.P.C. or an order dismissing the complaint u/s 203 is passed, then the accused becomes a person, who

shall be prejudiced by an order to be passed by the revisional Court in a revision against such order and hence he is entitled to be heard either in

person or through his counsel and that the denial of such an opportunity will vitiate the order of the revisional court.

Per contra, Mr. Veerakathiravan, learned counsel for the respondent would cite a judgment of a learned single judge of this Court made in

Sivasankar .vs. Santhakumari reported in 1994 (79) Comp Cas 412. The said order was passed on 03.09.1990. Of course, it was opined by the

learned Single Judge of this Court that when an order of dismissal of the complaint was passed u/s 203 Cr.P.C., the accused was not entitled to be

heard in the revision as the person accused of the offences did not derive the status of an accused till process was issued. This court is of the

humbe view that in the light of the judgements of the Bombay High Court, Rajasthan High Court and the Supreme Court discussed supra, that

were rendered later in point of time, the said decision of the learned single single judge does not state the correct principle of law.

The learned counsel for the respondent has chosen to cite a number of judgments, wherein the question as to which acts of public servants shall

be taken as acts done or purported to be done in discharge of their official duties. Learned counsel has also cited decisions regarding the cases in

which sanction u/s 197 Cr.P.C. is needed and the stage at which such a sanction is required to be obtained. The said judgments are not relevant

for the purpose of disposal of this criminal revision case. Suffice to point out that the principle of audi alteram partem conferring a right on the

petitioner, of being heard, which has been incorporated in Section 401(2) Cr.P.C., r/w Section 399(2) Cr.P.C. has been violated by the lower

revisional Court and on that short ground alone the order of the lower revisional Court, namely the learned Additional District and Sessions Court

(FTC No. II), Tiruchirappalli is liable to be set aside.

Though only one of the accused, out of six accused, has chosen to challenge the order of the lower revisional court, the order cannot be split

up into one against the revision petitioner and against the other accused, who have not chosen to file the revision. Hence the order of the lower

revisional court is liable to be set aside in its entirety. For all the reasons stated above, the criminal revision case is allowed. The order of the

learned Additional District and Sessions Judge (FTC No. II), Tiruchirappalli dated 27.05.2005 made in Crl.R.C. No. 46 of 2004 is set aside. The

learned Additional District and Sessions Judge (FTC No. II), Tiruchirappalli is directed to restore Crl.R.C. No. 46 of 2004 on file and decide the

matter in accordance with law after giving an opportunity to the petitioner herein (respondent in the revision before the Additional District and

Sessions Judge (FTC No. II), Tiruchirappalli). Every effort shall be made by the learned Additional District and Sessions Judge (FTC No. II),

Tiruchirappalli to dispose of the case as early as possible, preferably within a period of three months from the date of receipt of a copy of this

order. Consequently, connected miscellaneous petition is closed.