RAJENDRA LAL DAS Vs. STATE OF BIHAR

JUDGEMENT

(1.) A complaint was filed by opposite party no. 2, Nalini Kumar Das which underwent enquiry under Section 202 of the Code of Criminal Procedure ( 'the Code ', in short) and, on considering the materials on record, the learned Judicial Magistrate at Jhanjharpur by order dated

(2.) 4.1998 dismissed the complaint under Section 203 of the Code against which Criminal Revision no. 565 of 1998 was preferred in the court of Sessions Judge, Madhubani which court heard the petitioners and by order dated 27.4.1998, under the provision of Section 398 of the Code, set aside the order of the Magistrate, allowed the revision and issued a direction to make further enquiry. Against that order the instant application under Section 482 of the Code was preferred which came up for hearing before a single Judge of this Court on 4.7.2001. The sole point that was urged was that the revision by the Sessions Judge was heard and disposed of without giving any opportunity to the instant applicants (accused in the complaint) to be heard, hence was not sustainable under law, for which contention reliance was placed on two decisions of this court, both decided by single Judge, in the case of Sayeed Bhagat V/s. State of Bihar, 1999 Cr. L.J. 4040 and in the case of Most. Malti Sah V/s. State of Bihar, 2000(1) PCCR 197. P.K.Deb, J. who had heard the petition, also noticed another decision by a single judge of this Court in the case of Raj Narain Verma V/s. Rakesh Kumar Singh; 2000(1) All PLR 701, in which it was held that at the time of enquiry under Section 202 of the Code of Criminal Procedure the accused persons had got no right to be heard. Noticing the provisions under Section 398 of the Code and the fact that the decisions upon which reliance was placed by the petitioners did not relate to section 398 of the Code, his Lordship referred the matter to a Division Bench, formulating a question of law as under '' "Whether in a revision under Section 397 of the Code of Criminal Procedure against the dismissal of a complaint recorded under Section 203/204 of the Code of Criminal Procedure the accused persons could have any right to be implicated and whether opportunity should be given or not of being heard." 2 Arguments on behalf of the petitioners, opposite party no. 2 and on behalf of the State, opposite party no. 1, have been advanced on the sole question formulated, as above.

(3.) THE judgment of the Delhi High Court in the case of Md. Afzal (supra) related to a case in which the complaint, after enquiry was dismissed which order was challenged before the court of sessions in revision. The revisional court set aside the impugned order with direction to the lower court to summon the accused. Taking into consideration provisions of sections 399 and 401 of the Code it was held that a Sessions Judge enjoyed the same powers in a revision as that of a Judge of the High Court as enshrined under section 401 of the Code. Taking note of sub -section (2) of Section 401 of the Code his Lordship of the Delhi High Court held that no order to the prejudice of an accused or any other person could be made unless the said accused or the said person had been given an opportunity of being heard. The petition, thus, succeeded. Another decision of this court in the case of Most. Malti Saha V/s. State of Bihar; 2000(1) PCCR 197, was also placed by Sri Singh, decided by a single Judge of this Court in which reliance was also placed upon the case of Md. Afzal. In that case also in the revision against dismissal of complaint, after enquiry, the revisional court set aside the order of the Magistrate without giving the accused opportunity to be heard. That was held bad in law, also holding that provision contained under Section 403 of the Code that no party had right to be heard in a revision, was an exception to the general rule that no one should be condemned unheard. His Lordship also noticed, in that connection, the provision under sub -section (2) of section 401 of the Code.