Raju vs Madan Singh alias Bedan Singh

V.S. Aggarwal, J.

The short question that arises for consideration in the facts of the present case is as to whether the learned Additional Sessions Judge, Faridabad was justified in allowing the revision petition without issuing notice to the petitioner.

The sum and substance of the facts would make the position clear. Respondent Madan Singh ha filed a complaint against petitioner Raju and others with respect to offences punishable under Sections 148/149/452/323/325/307/506 IPC. It had been contended that Babu Singh had filed a suit against the respondents and on 15.5.1995 at 8.00 P.M. Babu Singh along with others attacked with the lathis and bricks at the house of the respondent. The respondentcomplainant along with his brothers and Satish were sitting in the house. Injuries were caused to them. Rs. 9400/ were snatched from the respondent by Net Ram.

The learned Judicial Magistrate recorded the preliminary evidence and held that occurrence took place on 15.5.1995. The complaint was filed on 21.9.1995. There was no explanation for the inordinate delay in filing of the complaint. There was some inconsistency in the nature of the injuries attributed to the accused. It was further noted that copy of FIR No. 65 has been placed on the record. The names of all the accused were not mentioned in the said first information report. The case had been investigated and the case has been committed to the Court of Sessions. Consequently, the complaint was dismissed.

Aggrieved by the same, a revision petition was filed by the respondent in the Court of Sessions at Faridabad. The learned Additional Sessions Judge allowed the revision petition and directed that the trial court will consider the matter afresh after giving opportunity of hearing to the respondent. In coming to this conclusion the learned Additional Sessions Judge referred to Section 210 of the Code of Criminal Procedure and recorded the following findings :

"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subjectmatter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."

Aggrieved by the same, the present revision petition has been preferred by the petitioner.

The sole submission made as already pointed out above was to the effect that the learned Additional Sessions Judge could not have allowed the revision petition without giving notice to the petitioner. The answer to the said question is provided by Section 398 of the Code of Criminal Procedure which reads :

"398. Power to order inquiry. On examining any record under Section 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 under Section 203 or subsection (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 provisions quoted above show that the language is plain and unambiguous. It is clear that if on examination of the records, it has been found that complaint has been dismissed, a direction can be issued to make further inquiry in the complaint. But sine qua non is that complaint must be dismissed under Section 203 or under subsection (4) of Section 204 of the Code of Criminal Procedure. The proviso to Section 398 Cr.P.C. further makes the position clear. Under the said proviso, if the accused has been discharged, in that event, the revision petition cannot be allowed or direction for further inquiry to be made unless such person has an opportunity of showing cause. A clear distinction thus has been made by the legislature in the two cases namely where the accused has been discharged, he must be heard before the Court can in revisional powers direct further investigation. By necessary analogy, it follows that it will not be so and such an opportunity need not be granted when the complaint has been dismissed as in the present case under Section 203 Cr.P.C.

Learned counsel for the petitioner strongly relied upon the decision of this Court in the case of Sant Singh and another v. Gurmel Singh, 1986(2) RCR (Crl.) 511 : 1986(2) CLR 335. In the cited case the complaint had been dismissed. In the revision petition filed, the learned Sessions Judge held that prima facie case was drawn and had allowed the revision petition. This Court held :

"After hearing the learned counsel for the petitioners, I find that the learned Additional Sessions Judge without summoning the petitioners passed the impugned order which adversely affected their interests. The result is that the ex parte order passed by the Additional Sessions Judge dated September 27, 1985, which is adverse to the interests of the petitioners cannot be sustained. The revision petition is consequently allowed and the impugned order dated September 27, 1985 is set aside. It is directed that the case shall go back to the learned Additional Sessions Judge, Ludhiana, who shall dispose of the revision petition filed by the respondent afresh in accordance with law."

It is obvious from the facts of the case that this Court had noted that an order adverse to the interest of the petitioners had been passed. That was the reason why the revision petition was allowed. Can in the facts of the present case a finding can be recorded that an order adverse to the petitioner has been passed ? The answer would be in the negative. If at that stage the petitioner had no right to be heard, he cannot claim that he must be heard. The answer is forthcoming from the wellknown decision of the Supreme Court in the case Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430. The Supreme Court held that an accused at the stage when preliminary evidence is recorded has no right to being heard. In paragraph 7 it was observed :

"Taking the first ground, it seems to us clear from the entire scheme of Sch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witness at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interest of justice. But beyond that, he cannot go."

That being the position it is obvious that decision in the case of Sant Singh''s case (supra) would be distinguishable.

In fact the consistent view appears to be that it would be improper and unnecessary to issue notice when a revision is filed against an order dismissing the complaint under Section 203 Cr.P.C. One of the earlier decisions known is in the case of T.S. Ramabhadra Odayar v. Emperor, AIR 1928 Madras 1198. Herein the Magistrate dismissed the complaint under Section 203 Cr.P.C. The Sessions Judge issued the notice to the accused. The Madras High Court held that the accused had no locus standi in such enquiries. Issuing of the notice to the accused is improper though not illegal. The view point of this Court then known as East Punjab High Court in the case of Messrs Kirpa Ram Jagan Nath v. Thakar Hans Raj, AIR (37) 1950 East Punjab 189 was the same. Almost a similar situation had crept and in paragraph 6 while looking at Section 486 Code of Criminal Procedure, 1898 which is similar to Section 398 of the present Code, it was held :

"Under the present section as amended in 1923, by the addition of the proviso, it is imperative that before further enquiry is ordered in the case of a person who has been discharged, an opportunity should be given to the accused to show cause why further enquiry should not be ordered. The proviso, however, does not apply to the dismissal of a complaint under Section 203. As a matter of fact it will be very undesirable to issue notice to the accused person in such cases. The accused person has no locus standi in inquiries under Chapter XVI, Criminal P.C. and the principle is equally applicable where the order in such an enquiry is under revision. That being so, I find that the order of the learned Sessions Judge dated 12th June, 1948 is not vitiated by any illegality."

Same was the view of the Judicial Commissioner, Vindhya Pradesh in the case Kedar Ram and others v. Ram Bharosa, AIR 1952 Vindhya Pradesh 49. The Andhra Pradesh High Court in the case of Konda Sesha Reddy and others v. Muthyala China Pullaiah and another, AIR 1958 Andhra Pradesh 595 while dealing with a similar situation held :

"The learned Sessions Judge made an order without notice to the accused. It might have been open to the Judge to issue notice; but the omission of it cannot certainly render the order illegal. The principle that no order should be made to the prejudice of a person without giving him an opportunity to be heard has no application to the present case because the accused would certainly get a hearing after summons is issued under Section 204 and the trial commenced."

The Delhi High Court in the case of A.S. Puri v. K.L. Ahuja, 1970 Crl. L.J. 1441 felt that it is improper to issue such a notice though if no notice is issued, it is not illegal. It could be issued as a way of propriety only. Lastly reference may be made to the decision of the Madras High Court in the case of Kannan alias Krishnaraj and others v. R.A. Varadarajan and another, 1988 Crl.L.J. 605, Herein also the Sessions Judge had not issued notice to the accused. It was held that the said order is not illegal.

The position herein is no different. The learned Additional Sessions Judge had only remitted the case to the learned Judicial Magistrate. The pleas on merits can still be raised by the petitioner as and when and if the occasion arises. At this stage, he had no locus standi to be heard. By way of abundant caution, it is added that if the learned Additional Sessions Judge in a particular case feels that it would help him in arriving at a correct decision and chooses to issue notice, there is nothing illegal but otherwise the accused has no right to being heard when complaint had been dismissed under Section 203 Cr.P.C. In revision petition against such an order also no right would be added. There is no ground thus to interfere.

No other point was pressed before this Court.

For these reasons, the petition being without merit fails and is dismissed.