M.C. Ganesan vs S.N. Rao

K.M. Natarajan, J.—The accused in C.C. 10475 of 1985 on the file of the VIII Metropolitan Magistrate, G.T. Madras, has filed this revision under S.401, Crl.P.C., to set aside the order passed in Crl.R.C. 14 of 1986 on the file of the II Additional Judge, City Civil Court, Madras, ordering re-hearing. The facts which art necessary for the disposal of the revision are brief as follows:

The respondent preferred a complaint under S.500, I.P.C., against the petitioner accused alleging that the accused in his letter dated 20th February, 1984, to his brother-in-law made defamatory allegations with intent to defame him and his reputation and caused damage to his name. According to him, the accused made the above imputations knowing fully well that they are all false in order, only with an intent to defame him in the eyes of others. The defamatory words have been extracted in the complaint. The said complaint was dismissed under S.203, Crl.P.C., by the Magistrate. As against that order, the respondent herein filed a revision in Crl.R.C. No. 14 of 1986 before the II Additional Judge, City Civil Court, Madras. The Sessions Judge allowed the revision and directed the Magistrate to take the case on file, issue process to the accused and then dispose of the case according to law. Aggrieved by the same, the accused has preferred this revision.

According to the Learned Counsel for the revision petitioner, there was no service of notice of hearing on the accused of the proceedings before the trial Magistrate and that the Sessions Judge erred in allowing the revision against him without hearing him against the provision of S. 401(3), Crl.P.C. It is further alleged that the Sessions Judge erred in not referring the judgment of the Tamil Nadu Bar Council, which had decided against the respondent complainant. On the other hand, the Learned Counsel for the respondent submitted that the accused has no locus standi to appeal in revision, that the failure to effect service of notice would not affect the order passed by the Sessions Judge, that the said revision was against the order passed under S.203, Crl.P.C., and it is only between the Court and the complainant and that only after cognizance was taken by court, the accused is entitled to have a right of say and till then he cannot be heard to say that he was not given an opportunity.

In support of his contention, the Learned Counsel for the respondent, drew my attention to various decisions of this Court. In Vellapandi alias Maruthiah Thevar and others v. Annathiammal and others 1975 L.W.Cri. 162, Ratnavel Pandian, J., in a case where a revision petition was filed before District Magistrate against an order of dismissal of a complaint for bigamy and the revision was allowed by the District Magistrate remanding the case to the Sub Divisional Magistrate without notice to the other tide, held:

It cannot be said that the order of the District Magistrate setting aside the order of the Sub-Divisional Magistrate dismissing the complaint under S. 203, Crl.P.C., without issuing a notice to the petitioners herein, is vitiated.

The learned Judge relied on the Pull Bench decision of this Court reported in Appa Rao Mudaliar Vs. Janakiammal, and the decision reported in Kammela Somasundaramma Vs. Kammela Seshagiri Rao alias Professor Giri Rao and Others, , where the same view was taken. In Jalauddin v. Syed Ibrahim 1978 L.W. Crl. 178, Paul, J., has also taken the view that the accused has no locus standi to appear unless the process under S.204, Crl.P.C., is issued to him. In T.S. Ramabhadra Odayar Vs. Emperor, , it was held that the accused persons have no locus standi to appear for an enquiry under Chapter 16 of the Code and it even went to the extent of saying that the Sessions Judge''s action in issuing notice to the accused was improper and even undesirable. In Somu alias Somasundaram v. State 1985 L.W. Crl. 25, Singaravelu, J. has considered the above quoted decisions and distinguished the decision rendered by Ramaprasad Rao, J. (as he then was) in Gopalakrishnan v. Ramasubramania Raja 1972 L.W. Crl. 39, and held:

In other words, till the process is issued by the trial court, the petitioners do not get the status of the accused Consequently, they have no right of audience before the revisional authority. The proviso to S. 398 Crl.P.C. merely states that no court shall make any direction under this section for enquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause. But, that contingency does not arise in this ease, as this is not a case of discharge by the trial court.

Hence the petitioners herein have no right of hearing and this revision petition in anticipation of the issue of summons is premature.

In Thyagarajan v. Ayyamperumal 1983 L.W. Crl. 212, M.N. Moorthy, J. had an occasion to consider a similar situation and held:

The concept of natural justice has got its own natural limitations. It cannot be too vague and stretched to an extent of breaking of systems of recognised law. No person has a vested right in any course of procedure. It is for the Legislature at any time to change the mode of procedure. In construing a statute, the court is not at liberty to stretch to square with this theory or that theory. The Court has no power to go behind the intention of the Legislature on the pretext of natural justice. Courts are to interpret the laws and not make them and must firmly refuse to fill in a lacuna even though the refusal may work hardship in an individual case. In a revision filed against an order of dismissal under S.203, Crl.P.C., the Sessions Judge need not give notice to the accused. This is the guideline laid down by the statute. No restraints and conditions which the Legislature itself did not think proper or necessary to impose can be brought in by the back door on the correct concept of natural justice.

The learned Judge also referred to the earlier decisions of this Court and the 41st Report of the Law Commission, para 32. It is relevant to extract para 32 of the 41st Report of the Law Commission on the subject:-

One suggestion made to us regarding S.436 was that before an order dismissing a complaint under S.203 is disturbed, notice should go to the accused person so that he can urge what he likes in support of the dismissal order. This was sought to be supported by the principle of natural justice. We do not, however, see how such an accused person can be called, a party to the proceedings'' at that stage, and the Supreme Court has ruled at Chandra Deo Singh Vs. Prokash Chandra Bose and Another, , that it is hardly proper to permit him to intervene in the proceedings. Further, in number of cases it will happen that notice to him will seem unnecessary trouble and expense to a person who may be wholly innocent. If a Magistrate has, on considering the facts found that there is no ground for proceeding against any person and therefore dismissed the complaint summarily there is hardly any reason for the revision court to call any one to court as an accused or as a respondent until, of course, after a further enquiry has been made and that inquiry justifies the issuing of process.

It is clear from the above report of the Law Comission that the guideline for the statute is that in a revision against the order of dismissal of a complaint under S.203, Crl.P.C., no notice need be given to the accused. M.N. Moorthy, J. has extracted the same and also laid down the above proposition. I am in entire agreement with the view expressed by the learned Judge in the above quoted case. It is clear from the above decisions that the order passed by the Sessions Judge in the revision setting aside the order passed under S.203 of the Code directing the Magistrate to take the case on file and issue process, without serving notice on the petitioner cannot be said to be in any way illegal or improper and it cannot be said that the same should be set aside and the petitioner should be given an opportunity of re-hearing the revision. Hence, I see no merit in the revision.

Learned Counsel for the petitioner submitted that the order of dismissal under S.203, Crl.P.C., is one of prejudice to the accused and as such, the person affected, namely, the accused, should be given an opportunity to be heard on the principles of natural justice besides being in utter disregard of the mandatory provision of S. 401, Crl.P.C. This question has been considered by M.N. Moorthy, J. in Thiagarajan v. Ayyamperumal 1983 L.W. Crl. 212, and by Singaravelu, J., in Somu alias Somasundaram v. State 1985 L.W. Crl. 25, Since the accused comes into the picture only when the case is taken on file and process was issued, the question of giving an opportunity to the accused at that stage does not arise. It is further submitted by the Learned Counsel for the petitioner that M.N. Moorthy, J., in Subramania v. Pasupathi 1981 L.W. Crl. 251 held that prevention is better than cure. That was a case where the complaint was taken on file by the Magistrate who took cognisance and issued process. At that stage, a petition for quashing the proceedings was filed and the Judge held that the dispute is essentially of a civil nature and the criminal proceedings have to be quashed. The ratio laid down in that case is not at all helpful to the case of the petitioner. The Learned Counsel for the petitioner relied on the decision reported in Dharamchand Jain v. Sunder Rao, etc. 1984 L.W.Crl. 44 (S.N.), summary of cases extracts. That decision relates to a case where the complainant has filed a petition for not taking the complaint on file against accused 2 and 3 and another petition filed by the 4th accused against whom the complaint was taken on file to quash the proceedings. In the circumstances, the learned Judge has considered the merits of the case and gave a finding that the material available in the said case clearly establish that no criminal liability arises in the proceedings pending in the court below. The said decision is not helpful to the case of the petitioner. It is only after the case is taken on file, it is open to the petitioner, after process is issued and the accused has got a right to agitate before this Court under S.482, Crl.P.C., to quash the proceedings, if the dispute is essentially of a civil nature. We have not reached that stage. The question to be considered in this case is whether the accused has got a right of audience in revision against the order of dismissal under S. 203, Crl.P.C., and nothing more. The Learned Counsel for the petitioner submitted that the citations referred by the counsel for the respondent do not reflect the correct principle of law and hence the petitioner must be given an opportunity. I do not find am merit in the said contention. In view of the 41st Report of the Law Commission and the decision of the Full Bench reported in Apparao v. Janakiammal 24 L.W. 613 : AIR 1927 Mad 19 (F.B.) which has been followed consistently by this Court till this time, it cannot be said that the ratio laid down in those decisions do not reflect the correct principle of law and it requires reconsideration. For all these reasons, I am of the view that the petitioner has not made out any case for interfering with the order passed by the Sessions Judge.

In the result, the revision fails and stands dismissed.