S. Thiyagarajan, B.Sc., B.L. vs Ayyamperumal and State

M.N. Moorthy, J.—This is a petition filed by S. Thiyagarajan, A8, under S. 482, Crl.P.C. to set aside the order passed by the learned

Sessions Judge, Kanyakumari, in Crl.R.P. 22/81.

The petition arises under the following circumstances : The respondent Ayyamperumal had filed a complaint against the petitioner and 14 others

for alleged offences under S. 500 read with Ss. 34 and 109, I.P.C. before the learned Chief Judicial Magistrate, Kanyakumari at Nagercoil. The

learned Magistrate recorded the sworn statement from the complainant and dismissed the complaint under S. 203, Crl.P.C., holding no case is

made out under S. 500, I.P.C. and that the complainant bad not brought any other witness for examination on that day.

Aggrieved by the said order of the learned Magistrate, the respondent filed Crl.R.P.22 of 1981 before the learned Sessions Judge,

Kanyakumari at Nagercoil without making the petitioner and the other accused as parties. The learned Sessions Judge, after hearing the

respondent and on the basis of the concession made by the learned Public Prosecutor, allowed the revision petition and directed the learned

Magistrate to take the complaint on file. Accordingly, the Magistrate numbered the complaint as C.C. No. 265 of 1982 and issued summons to

the petitioner herein and the other accused.

The petitioner received the summons on 24th July, 1982. Till then, the petitioner was not aware of the proceedings. The present petition is filed

on the ground, the order of the learned Sessions Judge, allowing the revision petition without giving notice to the petitioner, is illegal.

Mr. N.T. Vanamamalai, learned counsel for the petitioner submitted that even as per the complaint and the sworn statement, no case is made

out against the petitioner and the learned Magistrate was right in dismissing the complaint under S. 203, Crl.P.C. He further contended that the

order of the learned Sessions Judge is against the principles of natural justice and against law, as he has allowed the revision petition without giving

notice to the petitioner.

In support of his contention, Mr. Vanamamalai, drew my attention to a number of decisions. He relied on the decision in Mrs. Maneka Gandhi

Vs. Union of India (UOI) and Another, for the proposition, when there is a specific provision in a statute or rules made thereunder for showing

cause against action to be taken against an individual which affects the right of that individual, the duty to give reasonable opportunity to be heard

will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action.

He relied on the decision in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, to show that even an administrative order which involves

civil consequences should be made consistent with the rules of natural justice. The person concerned must be informed of the case of the State and

the evidence in support thereof and he must be given a fair opportunity to meet the case before an adverse decision is taken.

Next, he drew my attention to the decision in State Bank of India Vs. Rajendra Kumar Singh and Others, and relied on the following passage:

It is true that the statute does not expressly require a notice to be issued, or a hearing to be given to the parties adversely affected. But, though the

statute is silent and does not expressly require issue of any notice there is in the eye of law a necessary implication that the party adversely affected

should be heard before the court makes an order for return of the seized property.

In other words, if there are no positive words in a statute requiring that the party shall be heard yet the justice of the common law will supply the

omission of the legislature Amar Nath and Others Vs. State of Haryana and Another, ), is another decision relied on to support the argument that

no order prejudicial to a person should be made without giving notice to him, as it is against the principles of natural justice. To buttress up the

same contention the decisions in Shri Bhagwan and Another Vs. Ram Chand and Another, Mahmood Hasan and Another Vs. State, K.

Nithiyanandan Vs. B. Radhamani and Another, and K. Balakrishna Rao and Others Vs. Haji Abdulla Sait and Others, , were placed before me.

Mr. Vanamamalai strenuously contended that the decision in Gopalakrishnan v. Ramasubramania Raja, 1972 L.W. Crl. 39 supports his stand

that the order of the learned Sessions Judge passed without giving notice to the petitioner is bad in law. In that case a revision petition was filed

against the order of dismissal of a complaint preferred by the petitioner before the Sub Divisional Magistrate. At the time of admission the court

issued notice to the Public Prosecutor and to the complainant as well. On the contention that the Public Prosecutor and the learned counsel for the

complainant cannot actively participate in the enquiry, the learned Judge made the following observations in page 42-43:

I am of the view that the proceedings under S. 436, Crl.P.C, are peculiar in nature and they have an import of their own which is not covered by

the ordinary process of criminal law. This is a case where the High Court is called upon to scrutinise the orders of Subordinate criminal courts who

in the exercise of their judicial discretion dismissed the private complaint as one for which in their opinion and judgment (sic) no sufficient ground

for proceeding. At that stage and after the High Court has issued notices to the learned Public Prosecutor (evidently because some of the

respondents are police officers) and to the other respondents, it cannot be said that the ban in the rule in Chandra Deo Singh Vs. Prokash Chandra

Bose and Another, applies in toto to the facts and circumstances of this case. The respondents are undoubtedly entitled to come to the court to

state that the order which is sought to be challenged in this Court is sustainable because it satisfies the various limbs of SS. 200 to 203, Crl.P.C.

and on the other legal grounds. To that extent at least they have a right of audience. Therefore, the right of presence which looms large in the rule in

Chandra Deo Singh Vs. Prokash Chandra Bose and Another, gets itself relaxed in the circumstances of this case not only to the right of presence

but also to the entitlement of being heard for the limited purpose stated above. If this is not so, I am of view that the principles of natural justice

would be violated. For ought I know the doctrine of natural justice is not eliminated because the matter is one concerning crimes. In the absence of

any specific provision in the Criminal Procedure Code, which puts a total ban on such persons or counsel making a representation to the Court that

the impugned order of the Magistrate or Sessions Judge is not in accordance with law or otherwise there is nothing which prevents this Court as a

High Court to hear them on that aspect only and I propose to hear them, though for a very limited purpose.

Two unreported decisions, Crl.P.C.460 of 1980, dated 22nd December, 1981 by Ratnavel Pandian, J., and Crl.M.P. No. 6915 of 1980, dated

28th June, 1982 by Singaravelu, J. also supported the view that the learned Sessions Judge should have given notice to the petitioner before

disposing of the revision petition.

Mr. Asokan, learned counsel for the respondent, countered the arguments advanced by the learned counsel for the petitioner, drawing my

attention to the decision in Union of India (UOI) Vs. Col. J.N. Sinha and Another, wherein it is held as follows:

Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in A.K.

Kraipak and Others Vs. Union of India (UOI) and Others, these rules can operate only in areas not covered by any law validly made. If a

statutory provision can be read consistently with the principles of natural justice, the Courts should do so, because it must be presumed that the

legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But, on the other hand when a statutory

provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice, then the court cannot

ignore the mandate of the legislature or the statutory authority and read with the concerned provision the principles of natural justice. Whether the

exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words

of the provisions conferring the power, nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of the

power.

He also relied on the decision in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, and contended that what particular rule of

natural justice should apply to a given case must depend to a great extent on the facts and circumstances of the case, and the framework of the law

under which the enquiry is held. The Court has to decide whether the observance of the rule of natural justice is necessary for a just decision to

hold the enquiry in good faith and without bias and not arbitrarily or unreasonably. In the present case, he argued no rule of natural justice bas been

violated. Reliance is also placed on the decision in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, .

The learned Public Prosecutor, relying on the decision in Emperor v. Gajraj Singh and others, ILR 47 All. 722 contended that the order of the

learned Sessions Judge without giving notice to the petitioner is correct. According to the decision cited by him, where a complaint has been

dismissed under S. 203 or S. 204 of the Crl. P.C., in contradiction to an accused person being discharged, no notice to the person against whom

the complaint was made is necessary before further enquiry into the case can be ordered. In a case reported in Vellapandi alias Maruthian Thevar

and others v. Annathaiammal and another, 1975 L.W. Crl. 162 Ratnavel Pandian, J. has held 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 giving notice to the accused, is valid. In

Jalaludeen v. Syed Ibrahim and another, 1978 L.W. Crl. 178 Paul, J. has held that in a revision against the order of dismissal of the complaint

under S. 203, Crl.P.C, the accused does not come into the picture at all and as such has no right of audience before court, when the dismissal of

the complaint under S. 203, Crl.P.C., is challenged.

In an earlier decision of our High Court in Thanikachala Mudali v. Ponnappa Mudali, 1947 M.W.N. Crl. 98 : 60 L.W. 378 Yahya Ali, J. has

held, where a Magistrate dismisses a complaint without issuing process to the accused, the accused person cannot be said to have been discharged

within the meaning of the proviso to S. 436, Crl.P.C., and therefore, no notice is necessary to him when the Sessions Judge directs further inquiry

into the complaint. To the same effect is a Bench decision of the High Court reported in Appa Rao Mudaliar Vs. Janakiammal, where it is held,

when a complaint is dismissed under S. 203, Crl.P.C., notice to accused is not necessary before ordering further enquiry as he is not ""discharged

within S. 436, Crl.P.C.

In view of the order I propose to make, as regards the contention on the merits of the complaint, I refrain from giving a finding except to say

that it is for the learned Chief Judicial Magistrate to come to his own independent judicial discretion.

As regards the contention that natural justice requires that the petitioner should have been given notice by the learned Sessions Judge before

disposing of the Criminal revision petition, I am aware that even if there is no specific provision for notice in the statute, provision must be read into

the law in certain circumstances. 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 lows and not make them and must firmly refuse

to fill in a lacuna even though the refusal may work hardship in an individual case.

Coming to the case on hand, it is relevant to note the 41st Report of the Law Commission on the subject:

10. 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 principles 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 a 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 anyone to court as an accused, or as a respondent until,

of course, after a further inquiry has been made, and that inquiry justifies the issuing of process.

The above passage makes it abundantly clear 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. 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.

Thus, on a consideration of the entire materials placed before me and the discussion made above, I prefer to follow the rulings of our High

Court in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, Thanikachala Mudali v. Ponnoppa Mudali 1927 M.W.N. Crl. 98

Vellapandi Alias Muruthian Thewar and others v. Annathaimmal and another 1975 L.W. Crl. 162 and Jalaludeen v. Syed Ibrahim and another

1978 L.W. Crl 178 and hold that in a revision filed against an order of dismissal under S. 203, Crl., P.C., the learned sessions Judge need not give

notice to the accused. The petition stands dismissed.