Vijay Kumar vs Bachnu and anr.

I.S. Tiwana, J.

As a result of respondent''s complaint dated 9th August, 1985, and recording of evidence u/s 202 of the Code of Criminal Procedure (for short the Code), the petitioner was summoned by the Chief Judicial Magistrate, Ropar, vide his order dated 7th October, 1985, to face trial u/s 232/505 of the Indian Panel Code. However, before the accused petitioner actually put in appearance before that court, the complaint was dismissed by the said court on 28th February, 1986, for the reason that the complainant had failed to carry out the directions given by the court vide its order dated 7th February. 1986, to furnish complete and better particulars of the accused within a period of four days from that order and to deposit the necessary process fee, etc. Apparently, this order was passed in terms of subsection (4 of section 204 of the Code. The respondent successfully assailed this order before the Session Judge, Ropar by way of a revision petition. The learned judge without issuing notice to the accused, i e, the petitioner, allowed the revision of the respondent and while setting aside the order of the trial magistrate dated 28th February, 1986, directed him to carry on further proceedings in accordance with law. It is this order of the Sessions Judge dated 2nd April, 1986, which is impugned in this petition.

The sole submission of Mrs. Madhu, learned counsel for the petitioners that the Sessions Judge could not pass the impugned order without affording an opportunity of being heard to the petitioner. Firstly, according to her, the dismissal of the complaint vide order dated 28th February, 1986, amounted to discharge of the accused in that case, and, secondly, even though the petition had been filed before the Session Judge u/s 397 of the Code, the provisions of subsections (2) to (5) of section 401 had to be read into that section in view of sub section (2) of section 399 of the Code. The later mentioned sub section lays down that where any proceeding by way of revision is commenced before a Sessions Judge undersub section (1) which deals with the powers of the Sessions Judge in a revision the provisions of subsection (2) to 5 of section 401 shall, so far as may be apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge. Subsection(2) of section 40 lays down that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by a pleader in his own defence. On the other hand, the stand of Shri Menh Raj, the learned counsel for the respondent/complainant, is that the later mentioned section of the Code is wholly irrelevant as the case in hand falls squarely within the four corners of section 398 of the same. Having given my thoughtful consideration to the respective contentions of the learned counsel for the parties I find no merit in this petition.

Both the contentions of the learned counsel for the petitioner, as noticed above, appear to be misconceived. It is the conceded case that though the trial magistrate had decided to summon the petitioner as an accused vide his order dated 7th October, 1985, yet before he could actually be served or hid put in appearance as an accused before the court, the complaint against him was dismissed for the reasons noticed above, i.e., u/s 204(4). It is thus patent that the petitioner could not be discharged in the case before he had put in appearance before the court as an accused. Therefore, I repel her first contention.

The question then is whether the petitioner was entitled to be heard by the Sessions Judge while reversing the order of the trial Magistrate dated 28th February, 1986, dismissing the complaint against him.

A bare reading of subsection (2) of section 401 of the Code on which reliance is placed by the learned counsel for the petitioner in this regard indicates that only that person or accused who is likely to be prejudiced or is actually prejudiced by the order of the revisional court is entitled to be heard before the passing of the order by that court. No such situation arises in the case in hand by the he reversal of the order of the trial Magistrate dated 28th February. 1986, by the Sessions Judge. No prejudice has been caused to the petitioner or his position has not been altered in any manner as he was not on the scene at all, i.e. he was not before the trial court as an accused. Besides this, the submission of learned counsel appears to be totally irrelevant so far as the facts of the case in band are concerned. As has been noticed earlier. the petitioner had not is yet put in appearance as an accused before the trial court and the complaint against him had been dismissed in view of the Provisions of subsection(4) of section 204 of the Code. Against such an order, a revision petition did lie to the Sessions Judge and the same had to be dealt with u/s 398 of the Code. Proviso to ibis section which entitles only a person who has been discharged to an opportunity of showing cause before the order of discharge is upset or reversed by the revisional court makes the whole thing very clear. The implication of this proviso is that a person who is not discharged of who is not put on trial or has not put in appearance in court as an accused has no locus standi to be beard by the revisional court while setting, aside the order of dismissal of the complaint u/s 204(4) of the Code. The matter is not res integra. This Court in Messrs. Kirpa a Ram Jagan Nath v. Thakar Hans Raj AIR (37) 1950 East Punjab 18 while examining a similar situation in the light of the provisions of section 436 of the Code as it then existed, and which is in pari material with the present section 398, expressed itself in the following manner.

"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 S. 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 chap. 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''''.

Section 398 of the Code puts the dismissal of a complaint u/s 203 or sub section (4) of sec. 204 at par. Besides this, I find that when a suggestion was made to the Law Commission that before an order dismissing a complaint u/s. 203 Cr.P.C. is disturbed or is sought to be reversed, notice should go to the accused person in view of the principles of natural justice so that he can urge what he likes in support of the dismissal order, the Commission in its 41st report observed, "we do not, however, see how such an accused person can be called a party to proceedings at that stage and the Supreme Court has ruled (AIR 1963 SC 1430) that "it is hardly proper to permit him to intervene in the proceedings". In this later mentioned judgment of Supreme Court, their Lordships approved the following expression of opinion in an earlier judgment i e., Vadial Panchal v. Dattartraya Dulaji, AIR 1960 SC 1113 (at P. 1116) :

The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint: that is for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage, for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial."

(Emphasis supplied) It is, thus patent that in the instant case, the petitioner, as a matter of fact, had no locus standi to be heard by the Session Judge while hearing the petition against the order of the trial magistrate dated 28th February 1986, dismissing the complaint of the respondent.

In the light of the discussion above, I find this petition to be totally devoid of merit, and, thus dismiss the same.