Decided on August 19,2013

State of Uttarakhand and another Respondents


- (1.) Vide order dated 13.08.2012, learned Magistrate was pleased to dismiss the complaint filed for the offence punishable under Section 498-A IPC, however, he was pleased to summon the accused / petitioner, herein, for the offence punishable under Section 323, 504, 506 IPC. Feeling aggrieved, complainant / respondent no. 2, herein, filed a criminal revision no. 177 of 2012 before Sessions Judge, Udham Singh Nagar, which was later on, heard and allowed by the Additional Sessions Judge, Khatima vide order dated 17.01.2013 directing the Magistrate to pass fresh order on the complaint of respondent no. 2, thereafter, learned Magistrate vide order dated 18.02.2013 was pleased to summon the accused petitioner for the offence punishable under Section 323, 504, 506, 498-A IPC and 3/4 of the Dowry Prohibition Act.
(2.) Undisputedly before the Revisional Court neither petitioner, herein, was impleaded as party nor he was heard. As per Section 398, 399, 401 Cr.P.C. in revision filed by complainant, accused must be impleaded and heard.
(3.) Hon'ble Apex Court in the case of Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, 2012 10 SCC 517 has held as under: "The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. In a case where the complaint has been dismissed by the Magistrate under Section 203, either at the stage of Section 200 itself, or on completion of inquiry by the Magistrate under Section 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 the offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process was issued. The dismissal of complaint by the Magistrate under Section 203 although it is at preliminary stage nevertheless results in termination of complaint proceedings 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.;

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