Manoj Binwal & Another vs State Of Madhya Pradesh & Another

This application under Section 482 of Criminal Procedure Code 1973 has been filed calling in question the order dated 07.05.2016 passed by learned

Additional Sessions Judge/Special Judge (Vyapam) Indore in Criminal Revision No.170/2016 by which the order dated 14.01.2016 passed by the

JMFC, Indore in unregistered criminal complaint has been affirmed.

It is submitted by counsel for the applicants that the facts of the case are not required to be mentioned and suffice it to say that the complainant has

filed the complaint against the present applicants for the offence punishable under Sections 420, 467, 468 and 471 of IPC along with an application

under Section 156(3) of Criminal Procedure Code. The said application was rejected by the trial Magistrate by an order dated 02.11.2015 in

unregistered criminal case. Being aggrieved by the rejection of the application filed under Section 156(3) of Criminal Procedure Code, the respondents

filed a criminal revision before the Sessions Court which was registered as Criminal Revision No.778/2015 and the said revision was allowed by order

dated 21.12.2015 passed by learned Additional Sessions Judge/Special Judge (Vyapam) Indore and the matter was remanded back to the trial

Magistrate for consideration of the application under Section 156(3) of Criminal Procedure Code afresh. It is further submitted that however the

application under Section 156(3) of Code of Criminal Procedure was once again rejected by the ACJM, Indore by order dated 14.01.2016 passed in

an unregistered criminal complaint. Once again the respondent No.2 filed the criminal revision calling in question the order dated 14.01.2016 passed by

the Court of ACJM by which his application under Section 156(3) of Criminal Procedure Code was rejected. However, it is submitted by counsel for

the applicants that the applicants were not made party in the revision petition and the applicants were also not heard by the revisional Court and the

revision was allowed and order under Section 156(3) of Criminal Procedure Code was passed by the revisional Court. It is further submitted that

although it is well established principle of law that prior to taking cognizance of an offence in a criminal case, the accused does not have any say,

however when revision was filed challenging the order dated 14.01.2016 passed by the ACJM Indore in an unregistered criminal complaint by which

application under Section 156(3) of Criminal Procedure Code was rejected then it was mandatory on the part of the complainant to implead the

applicants as respondents in the criminal revision. In the first round of litigation, the applicants were impleaded as party to the criminal revision and in

the second round of litigation, the complainant/respondent No.2 did not make the applicants as respondents in the criminal revision, as a result of which

the applicants could not place their submissions before the revisional Court and without giving an opportunity of hearing to the applicants, the revisional

Court has allowed the revision and has also allowed the application filed under Section 156(3) of Criminal Procedure Code.

Per contra, Counsel for the respondent No.2 submitted that no prejudice has been caused to the applicants by the order passed by the revisional Court.

Heard the learned counsel for the parties.

The question raised by the applicant is no more res-integra. The Supreme Court in the case of Manharibhai Muljibhai Kakadia and Another vs

Shaileshbhai Mohanbhai Patel and Others (2012) 10 SCC 517 has held as under:

In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on

completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was

issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a

plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed offence have been

made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has

been issued. The dismissal of complaint by the Magistrate under Section 203 â€" although it is at preliminary stage â€" nevertheless results in

termination of proceedings in a complaint against the persons who are alleged to have committed crime. Once a challenge is laid to such order at the

instance of the complainant in a revision petition before the High Court or Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get

right of hearing before revisional court although such order was passed without their participation. The right given to “accused†or “the other

person†under Section 401(2) of being heard before the revisional court to defend an order which operates in his favour should not be confused with

the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the

instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate

and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express

provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage.

We are in complete agreement with the view expressed by this Court in P. Sundarrajan1 , Raghu Raj Singh Rousha2 and A. N. Santhanam3 . We

hold, as it must be, that in a revision petition preferred by 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 crime is entitled to hearing by the revisional court. In other

words, where 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 crime have, however, no right to participate in the proceedings nor they are 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.

It is well established principle of law that if the complaint is filed before the Magistrate, then the persons arrayed as accused have no locus-standi to

participate in the proceedings, however, after the rejection of the application under Section 156(3) of Criminal Procedure Code or complaint and if the

said order is challenged before the revisional Court, then it cannot be said that the persons who were arrayed as an accused are not entitled to be

heard, as if the order rejecting application under Section 156(3) of Criminal Procedure Code is set-aside, then it would result in registration of FIR by

the police thereby putting the life and liberty of the applicants in jeopardy.

As the valuable right of opportunity of hearing was denied by the revisional Court, accordingly the order dated 07.05.2016 passed by learned

Additional Sessions Judge/Special Judge (Vyapam) Indore in Criminal Revision No.170/2016 is hereby set-aside and, as a consequence, the FIR, if

any, as well as the consequential proceedings which might have taken place are also quashed. The matter is remanded back to the Court of learned

Additional Sessions Judge/Special Judge (Vyapam) Indore and to reconsider the revision filed by the respondent No.2 after giving an opportunity of

hearing to the applicants.

Parties are directed to appear before the revisional Court on 06.09.2018.

It is also made clear that if the applicants fail to appear before the revisional Court on 06.09.2018 then it shall be presumed that the applicants have

nothing to say before the revisional Court and the order dated 07.05.2016 passed by learned Additional Sessions Judge/Special Judge (Vyapam)

Indore in Criminal Revision No.170/2016 shall stand revived automatically. However, if the applicants appear on 06.09.2018 then the revisional Court

is directed to decide the matter afresh without getting prejudiced by its earlier order.

With the aforesaid, this application is finally disposed of.