Subhash Chandra vs State of Bihar and Another

Samarendra Pratap Singh, J.—This revision application is directed against order dated 13.6.2007 passed in Cr. Rev. No. 33 of 2007 by the learned Addl. Sessions Judge, F.T.C. No. Vth, Khagaria by which the learned court below has allowed the revision filed by the O.P. No. 2 against order dated 7.3.2007, passed by the S.D.J.M., Khagaria in Complaint Case No. 498(C) of 2006.

Before I examine the correctness of the order in challenge it would be appropriate to notice the facts of the case in brief. One Mangali Devi filed a Complaint Case No. 529(C) of 2006, which was registered u/s 376 I.P.C. and 3(x) (xi) (xii) of SC/ST Act. Subsequently Begusarai SC/ST P.S. Case No. 7/04 date 18.1.2004, was registered under Sections 376 and 504/34 of the I.P.C. and Section 3/10 of SC/ST (Prohibition of atrocities) Act. After investigation Police submitted final form in favour of the accused persons which was accepted by the learned Magistrate. O.P. No. 2 filed a protest petition. The learned Magistrate treated the same as complaint petition which was numbered as Complaint Case No. 498(C) of 2006.

The learned Magistrate vide his order dated 7.3.2007 took cognizance of offence u/s only 354 of I.P.C. and issued summons to accused, (petitioner here in this revision) to face trial.

The complainant being aggrieved by the aforesaid order, as petitioner was not summoned u/s 376 of the I.P.C. and SC & ST Act, filed a revision application before the learned Sessions Judge bearing Cr. Rev. No. 33 of 2007. The learned revisional court vide order dated 13.6.2007 remanded the matter for reconsideration on the point of cognizance. The accused being aggrieved by the revisional order, as it augered taking of cognizance under major offences, it was now his turn to move the higher courts and hence this quashing application.

The petitioner has assailed the impugned order mainly on the ground that the same was passed without hearing them to their prejudice. He states that Section 401(2) of Cr.P.C. mandates that no order in revision can be passed to the prejudice of a person or an accused without hearing him. He submits that the Magistrate took cognizance of offence only u/s 354 of I.P.C. and not u/s 376 I.P.C. and SC & ST Act. Revisional court has upstaged that order with the result that there is looming possibility that cognizance would now may be taken under other major sections as well.

In support of his contention learned Counsel relied upon a decision of the apex Court in the case of P. Sundar Rajan and Ors. v. R. Vidhya Sekar reported in (2004) 13 SCC 472, as well as a decision of a learned Single Judge of this Court reported in the case of Awadhesh Kumar Mahto v. the State of Bihar reported in 2000 (2) PLJR 555.

Mr. Yogesh Chandra Verma, learned Senior counsel, appealing on behalf of the opposite party stated that the revisional court has passed the order after hearing the P.P. The State counsel thus fully protected the interest of an opposite party. As such it cannot be said that the revisional court passed the impugned order without hearing any opposite party. He further submits that it is not necessary that the revisional court should hear the opposite party in view of Sections 309 and 403 of Cr.P.C. In support of contention, the learned Counsel has relied upon a decision of a Division Bench order of this Court, in the case of Rajendra Lal Das Vs. State of Bihar and Others, .

The issue in question is as to whether a revisional court can pass an order u/s 397 read with Section 401 Cr.P.C. to the detriment of the other side, without giving due opportunity of hearing to him.

In the case of P. Sundar Rajan (supra), a complaint u/s 420 of the I.P.C. was dismissed by the learned Magistrate. The complainant being aggrieved by the said order of dismissal of complaint, filed a revision before the High Court. The High Court without issuing notice to the accused, allowed the revision application. The accused P.S. Sundar Rajan moved apex Court against the order of the High Court. The apex Court set aside the order of the High Court holding that the same has been passed in violation of the principle of natural justice as well as Section 401(2) which requires that a party must be heard before an adverse order against him is passed.

In case of Awadhesh Kumar Mehta (supra) similarly, complaint was dismissed u/s 203 of Cr.P.C. The complainant went in revision before the Sessions court, which allowed the revision application and directed the magistrate to proceed afresh. The accused Awadhesh Kumar Mehta moved this Court in revision. This Court set aside the order of the revisional court and remitted the matter to him to hear afresh, after noticing the parties concerned, as it was in violation of Section 401(2) of Cr.P.C.

The learned Counsel for the O.P. relying upon Sections 399 and 409 of Cr.P.C. submitted that no opportunity of hearing is necessarily required to be given to an accused in a revision preferred by complainant against order taking of cognizance. He further submits that accused does not get any locus standi till cognizance is taken and he is summoned to face trial in criminal case. Section 399 of Cr.P.C. provides that Sessions Judge can exercise all or any of the powers which can be exercised by High Court under Sub-section (1) of 401 of Cr.P.C. Referring to Section 403 of Cr.P.C., he states that no party has any right to be heard either personally or by pleader before any court exercising its power of revision, save as otherwise expressly provided in law. It is true that Section 403 of Cr.P.C. has provided discretion to the court to hear or not to hear a party, while exercising its power under revisional jurisdiction. However, the provision itself contains a saving clause which mandates giving of hearing to an aggrieved person, as required under this Code. In other words, if Code provides for a hearing to the other side, against whom an adverse order is to be passed, then such opportunity is to be provided. Even if Code does not provide that a hearing be given to the affected side, still the discretion u/s 403 Cr.P.C. has to be exercised in a judicious and objective manner.

Section 401(2) of Cr.P.C. states that "No order under this section shall be made to prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence."

Thus, the option granted to a court u/s 403 of Cr.P.C. to hear a side or not while exercising revisional jurisdiction is necessarily subject to Section 401(2) which has been quoted above. The impugned order passed by the learned revisional court would obviously be prejudicial to the accused, as now he may be required to face trial under major sections like Section 376 of I.P.C. As such the provision required an opportunity of hearing to the other side i.e. the petitioner.

The impugned order dated 13.6.07, passed by the learned revisional court not providing opportunity of hearing to the accused petitioner is in violation of Section 401(2) of Cr.P.C. and as such not sustainable in the eye of law and the same is set aside.

As such this revision application is allowed and the matter is remitted back to the learned revisional court for fresh consideration in accordance with law after giving due notice to the opposite parties.