VIRENDRA KUMAR Vs. SURENDRA KUMAR NARANG
HIGH COURT OF UTTARAKHAND
Virendra Kumar and Ors.
Surendra Kumar Narang
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Alok Singh, J. -
(1.) A complaint filed by the respondent herein under Section 200 Cr.P.C. for the offence punishable under sections 420, 467, 468 and 471 I.P.C. was dismissed by the Judicial Magistrate Rudrapur, District Udham Singh Nagar vide order dated 01.06.2012. Learned Magistrate declined to issue process of summon to the accused. Feeling aggrieved, complainant respondent herein preferred a revision, being Criminal Revision No. 157 of 2012, before the Sessions Judge, Udham Singh Nagar which was allowed by the learned Sessions Judge vide impugned judgment and order dated 03.09.2012 whereby learned Sessions Judge was pleased to set aside the order of the dismissal of the complaint and was further pleased to direct the Magistrate to issue process of summon to the accused petitioner herein for the offence punishable under Sections 420, 467, 468 and 471 I.P.C. Feeling aggrieved, accused petitioners herein have invoked inherent jurisdiction of this Court under Section 482 Cr.P.C. I have heard Mr. S.R.S. Gill, learned counsel for the petitioners and Mr. C.K. Sharma, learned counsel for the complainant respondent and have carefully perused the record as well as relevant provisions of the law.
(2.) HON 'ble Apex Court in the Case of Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others reported in : (2012) 10 SCC 517, in paragraph 48 and 53 has held as under: -
48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code 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 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 has been issued. The dismissal of complaint by the Magistrate under Section 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" under Section 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.
39. We are in complete agreement with the view expressed by this Court in P. Sundarrajan Vs. R. Vidhya Sekar, (2004) 13 SCC 472, Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters (P) Ltd. : (2009) 2 SCC 363 and A.N. Santhanam V.K. Elangovan : (2012) 12 SCC 321. 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 under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 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 under Section 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.
In the present case, accused present petitioners were neither impleaded nor heard by the learned Sessions Judge while hearing the revision against the order of Magistrate declining to issue process of summons. Therefore, impugned order passed by the learned Revisional Court/Sessions Judge, Udham Singh Nagar does not sustain in the eyes of law. Consequently, present petition is allowed.
(3.) IMPUGNED judgment and order dated 03.09.2012 passed by the Sessions Judge in Criminal Revision No. 157 of 2012 as well as the consequential order passed by the Judicial Magistrate Rudrapur dated 19.10.2012 are hereby quashed. Criminal Revision is restored on the file of the learned Revisional Court. Parties are directed to appear before the learned Revisional Court on 30th October, 2013.;
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