Sukhwinder Singh vs State of Punjab

Rekha Mittal, J.—By way of this order, I shall dispose of CRM-M-19815 of 2012 titled "Sukhwinder Singh vs. State of Punjab and another " and CRM-M-3008 of 2013 titled "Manjinder Singh vs. State of Punjab and another" as these emerge out of complaint No. 37 dated 19.7.2008 and impugned order dated 25.1.2012 passed by the Additional Sessions Judge, Kapurthala and involve identical questions of law and facts for adjudication. However, for the sake of convenience, facts are taken from CRM-M-19815 of 2012.

Joginder Singh son of Bakhshish Singh respondent No. 2 lodged FIR No. 160 dated 23.10.2007 in Police Station, Sadar, Kapurthala for commission of offence under Sections 447, 448, 506 read with Section 34 of the Indian Penal Code against Sukhwinder Singh (petitioner in CRM-M-19815 of 2012), Manjinder Singh (petitioner in CRM-M-3008 of 2013) and Nachhattar Singh. Later, he filed criminal complaint No. 37 dated 19.7.2008 against the aforesaid persons in the court of Judicial Magistrate, Kapurthala. After conducting preliminary enquiry, wherein the complainant examined four witnesses, the learned trial court dismissed the complaint and cancellation report was accepted vide order dated 8.11.2010 (Annexure P-5). The complainant preferred revision petition before the Court of Sessions to impugn order dated 8.11.2010 passed by the Magistrate, the petition was partly allowed and it was held that the respondents are required to be summoned to face trial u/s 506/34 of the Indian Penal Code (for short "IPC").

Two separate petitions have been preferred by Sukhwinder Singh and Manjinder Singh by invoking the provisions of Section 482 of the Code of Criminal Procedure (for short "Cr.P.C.") seeking quashing of the criminal complaint as well as impugned order dated 25.1.2012 passed by the revisional court.

Counsel for the petitioner has contended that the revisional court gravely erred in holding that the accused are liable to be proceeded against for committing offence punishable u/s 506 IPC when otherwise, there is no material on record to establish their liability. During the course of investigation in FIR No. 160 dated 23.10.2007, the Superintendent of Police (Headquarter), Jalandhar conducted a detailed enquiry and submitted report negating the plea of the complainant. It is further argued that as the complainant does not want to give up management of Gurudwara Bhai Punjab Singh despite appointment of a Managing Committee to look after affairs of the gurudwara, he had earlier lodged a report with the police and later filed the complaint in the Court to put pressure upon the members of the Managing Committee to stay away from affairs of the gurdwara.

Counsel for respondent No. 2, on the other hand, contends that the learned trial Magistrate wrongly dismissed the complaint but the error committed by the trial court was partly rectified by the revisional Court. It is further submitted that keeping in view the evidence on record adduced during preliminary enquiry, no fault can be found in the findings of the revisional court that the accused are liable to be proceeded against for committing offence punishable u/s 506 IPC.

I have heard counsel for the parties and perused the records.

Though the petitioners have also challenged the criminal complaint filed by Joginder Singh (respondent No. 2) but their main grievance is against order dated 25.1.2012 passed by the Additional Sessions Judge, Kapurthala whereby the order passed by the trial Magistrate dismissing the complaint was partly set aside and the accused were ordered to be summoned to face trial for commission of offence punishable u/s 506/34 IPC. Counsel for the petitioners has not raised a legal issue which certainly arises in the circumstances of the present case. The question for consideration is whether the court of Additional Sessions Judge while exercising power of revision against an order passed by the Judicial Magistrate dismissing a private complaint after recording preliminary evidence could set it aside without giving an opportunity of hearing to the petitioners, sought to be summoned as accused in the criminal complaint.

The matter is no longer res integra in view of judgment of Hon''ble the Supreme Court of India in Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbhai Patel and Others, Hon''ble the Supreme Court of India in the light of provisions of Section 397 and 401 Cr.P.C. has held as under:-

In a case where the complaint has been dismissed by the Magistrate u/s 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate u/s 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 u/s 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate u/s 203-although it is at preliminary stage-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" u/s 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. Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. 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 u/s 203 of the Code at the stage u/s 200 or after following the process contemplated u/s 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 u/s 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.

Keeping in view the authoritative enunciation of law laid down by Hon''ble the Supreme Court of India that an accused or suspect has a right to be heard in a revision petition preferred by a complainant, before the High Court or Sessions Judge, challenging order of Magistrate dismissing complaint u/s 203 Cr.P.C. at the stage u/s 200 or after following process contemplated u/s 202 Cr.P.C., the order passed by the learned Additional Sessions Judge cannot sustain for want of an opportunity of hearing to the petitioners.

Without going into the merits of the controversy, lest it may cause prejudice to the rights of either of the parties during hearing of the petition afresh by the revisional court but in view of what has been discussed hereinabove, the petitions are partly allowed. The impugned order dated 25.1.2012 passed by the Additional Sessions Judge, Kapurthala is set aside and the matter is remitted to the Court of Additional Sessions Judge, Kapurthala for decision afresh after giving an opportunity of hearing to the parties.

Parties through their counsel are directed to appear before the Additional Sessions Judge, Kapurthala on 5.8.2014.

Though accused Nachhattar Singh has not preferred any petition before this court, he shall also be entitled to an opportunity of being heard in the matter before the revisional court.