YOGESH KHANNA, J. - (1.) These petitions are filed to assail an impugned order dated 05.04.2021 passed in Crl.Revision No.77/2021 (Crl.M.C. No.1163/2021) and Crl.Revision No.76/2021 (Crl.M.C. No.1186/2021) by the learned Principal District and Sessions Judge (HQs), Delhi (hereinafter referred to as the Revisional Court), against the orders dated 01.02.2021, 22.02.2021 and 06.03.2021 passed by the learned Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi in case State vs S.P.Gupta and Others.
(2.) It is the grievance of the learned senior counsel for the petitioners vide the impugned order the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2, whereas the complainant has no role to play before learned Revisional Court and its only the learned Public Prosecutor for the State, who has to take realm of the case before learned Session's Court. It is argued per sub-section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has an liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2.
(3.) The main issue thus raised is qua locus standi. It is argued by respondents the power of revision, admittedly, is a suo moto power of correction and supervision over the subordinate Courts; to call for the records and to correct orders. One can say it is discretion of the revisional Court to hear any one whom it needs to hear. It is argued Cr P C when amended in 2009, victim was given right to have a say in criminal proceedings. The question is if such right can be extended to revisions before the learned Session's Court. Reference was made to Pandharinath Tukaram Raut vs. Manohar Sadashiv Thorve wherein the Court held:- 7. Before going further, the issue regarding the maintainability of the Criminal Revision Application, as raised by Mr. Bhushan Deshmukh, the learned Counsel for the Respondent Nos. 1, 2, 5 and 9, be dealt with. Mr.Deshmukh placed reliance on the decision of the Supreme Court of India in the case of Subramanian Swamy and Ors. V/s. Raju, Through Member, Juvenile Justice Board and Anr., reported in : (2013) 10 SCC 465, to support his contention that in a prosecution initiated by the State, a third party / stranger would not have any right to participate. I have gone through the said reported judgment and I am unable to hold that this judgment lays down a proposition that in a prosecution initiated by the State, a private party has no right to challenge the order passed in the course of said prosecution by filing an application for revision. Moreover, in this case, the Applicants are the victims of the alleged offences and by no stretch of imagination can be said to be 'strangers' to the proceedings. Mr. Deshmukh also placed reliance on a decision rendered by a learned Single Judge of the Karnataka High Court in the case of M/s. Kerala Transport Co. Vs. D.S. Soma Shekar and Ors., reported in : 1982 CRI. L.J. 1065, in support of his contention that the First Informant has no locus standi to file a revision in a prosecution initiated by the State. Indeed, it appears that, the observations made by the learned Single Judge support the contention advanced by Mr. Deshmukh, but, with respect, I am unable to agree with the view expressed by the learned Judge in the said judgment. It is clear from the scheme of the relevant provisions that the revisional power belongs basically to the Court. The Court can call for the record and proceedings even 'suomotu' and revise the order. When the court has been given powers to revise an order 'suo-motu', it would be rather futile to raise the issue of locus standi. In fact, a party applying for revision is only drawing the attention of the court to a particular alleged illegality, impropriety or irregularity. Moreover, as aforesaid, in this case the Applicants are not 'strangers' to the prosecution, in as much as, though the prosecution has been initiated by the State, the Applicants are the victims of the offence. The Applicant No. 1 is the one who initiated the process of criminal law against the accused persons. The contention that the Criminal Revision Application is not maintainable as the Applicants have no 'locus standi' to file the same is, therefore, untenable and is rejected. Gyan Singh vs. Respondent: State of M.P. and Ors. wherein the Court noted:- 10. In view of the specific provision of section 401 (2) of CrPC, it is clear that no order prejudicial to the interest of any other person shall be passed unless he had an opportunity of being heard either personally or through his Counsel. Thus, when a criminal revision is filed by an accused against the order taking cognizance or against the order framing charges, the complainant is required to be heard. Whenever, any order which is in favor of the complainant is challenged by the accused, then the complainant is required to be heard. Himanshu Adya vs. State of MP and Ors. wherein the Court noted:- "12. This Court in the case of Gyan Singh v. State of M.P. [2017(2) JL J 71 : Criminal Revision No. 1215 of 2015, order dated 28.2.2017], has held as under: In view of the specific provision of section 401 (2) of CrPC, it is clear that no order prejudicial to the interest of any other person shall be passed unless he had an opportunity of being heard either personally or through his Counsel. Thus, when a criminal revision is filed by an accused against the order taking cognizance or against the order framing charges, the complainant is required to be heard. Whenever, any order which is in favor of the complainant is challenged by the accused, then the complainant is required to be heard. Isa Khan and Ors. vs. State of Rajasthan and Ors. wherein the Court noted:- 8. xxxx The expression "other person" in Sub-section (2) of Section 401 of the Code includes a complainant. Learned Counsel has placed reliance on a decision of this Court in Hazi Mohd. Shafi v. State of Rajasthan and Anr., 2002 (1) RCrD 172 (Raj.), wherein this Court held that no order under Section 401 (2) of the Code shall be made to prejudice the accused or other person unless he has had an opportunity of being heard either personally or through Counsel in his own defence. The word "other person" includes the complainant. Thus, without affording an opportunity of hearing to the complainant, the revisional Court committed apparent error in setting aside the order passed by the learned trial Court. Niranjan Lal vs. Attar Singh (1990) Supp SCC 57 wherein the Court noted:- 2. We are distressed that the High Court has allowed the revisional application preferred by Attar Singh and Satvir Singh s/o Mani Ram - respondents 1 and 2 and reduced the sentence imposed on them by the lower appellate court from one of rigorous imprisonment of 18 months to that of sentence undergone (respondents had not remained in jail for a single day). It passes our comprehension how the High Court has persuaded itself to pass such an order without even issuing a notice to the State or the original complainant. We can only hope that what has been done by the High Court in this case will not be repeated in future. The High Court which day in and day out quashes orders passed by the executive officials without complying with principles of natural justice has un understandably allowed this revisional application without hearing the other side. The appeal is, therefore, allowed. The order passed by the High Court is set aside. Both the shall surrender to the custody in order to undergo the sentence imposed by the lower appellate court subject to any order for bail or final order that may be passed by the High Court upon hearing the parties. The High Court will list the matter for hearing only after respondents 1 and 2 surrender to custody. The High Court will thereafter dispose of the matter in accordance with law with expedition. ;