- (1.) HEARD learned counsel for the petitioner and learned counsel for the State. No one appeared on behalf of respondent No. 2 in spite of repeated calls, though he has appeared through advocate, whose name appears in the cause list. Yesterday also, the case was adjourned in order to give a chance to the respondent No. 2, as no one had appeared on his behalf in spite of repeated calls.
(2.) THE petitioner has filed this writ petition for issuance of an appropriate writ, order or direction, quashing the order dated 18.12.2008 passed by learned Sessions Judge, Dhanbad, in Criminal Revision No. 271 of 2008, whereby the application filed against the order dated 4.9.2008 passed by Shri Ajay Kumar Srivastava, Judicial Magistrate, 1st Class, Dhanbad, in Complaint Case No. 896 of 2008, dismissing the complaint case under Section 203 Cr.P.C., was allowed by the learned Sessions Judge, setting aside the order passed by the learned Judicial Magistrate. The petitioner has also challenged the order dated 16/17.02.2009 passed by learned Judicial Magistrate, Dhanbad, whereby prime facie case was found against the petitioner for the offence under Section 406 of the Indian Penal Code and processes were ordered to be issued against the petitioner, on the basis of the aforesaid order passed by the revisional Court. The complainant respondent No. 2 had filed a complaint case against the petitioner in the Court of Chief Judicial Magistrate, Dhanbad, which was registered as Complaint Case No. 896 of 2008 for the alleged offence under Sections 420, 406 and 120(B) of the Indian Penal Code. It appears that the matter was enquired into by the learned Judicial Magistrate and after enquiry, the case was dismissed under Section 203 Cr.P.C. The complainant preferred a revision before the learned Sessions Judge, which was registered as Criminal Revision No. 271 of 2008, which was allowed by the impugned order dated 18.12.2008, setting aside the order passed by the learned Magistrate, whereby the complaint petition was dismissed under Section 203 Cr.P.C. It appears from the impugned order passed by the learned Sessions Judge in Criminal Revision No. 271 of 2008 that the petitioner, who was an accused in Complaint Case No. 989 of 2008 was neither made a party in the said revision application, nor he was given any notice by the revisional Court, and without giving an opportunity to the petitioner of being heard, the order dismissing the complaint case under Section 203 Cr.P.C. was set aside and fresh order was directed to be passed. Learned counsel for the petitioner has submitted that the impugned order passed by the revisional Court below is absolutely illegal and is violative of Section 398 Cr.P.C., which mandates that no fresh enquiry into any complaint which has been dismissed under Section 203 Cr.P.C. can be ordered without giving any opportunity of showing cause to the person who had been discharged under Section 203 Cr.P.C. Learned counsel accordingly, submitted that the impugned order passed by the learned Sessions Judge, Dhanbad cannot be sustained in the eyes of law, inasmuch, as the petitioner ought to have been heard by the revisional Court below before passing any adverse order against him. In this connection, learned counsel has placed reliance upon a decision of the Supreme Court in the case of P. Sundarrajan & Ors. Vs. R. Vidhya Sekar, reported in (2004) 13 SCC 472.
(3.) LEARNED counsel for the State, on the other hand, has submitted that there is no illegality in the impugned order passed by the Court below. It has also been submitted that the petitioner was not the necessary party in the revision, inasmuch, the complaint petition was dismissed without hearing the accused and as such, the petitioner was not required to be added as a party in the revision filed against the order of dismissal of the complaint. Section 398 of the Cr.P.C. reads as follows:- "398. Power to order inquiry.- On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 of sub-section (4) of section 204, or into the case of any person accused of an offence who has been discharged. Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made". From the plain reading of the Proviso to Sec. 398 of the Cr.P.C., it is apparent that the same has no application to the cases where the complaint is dismissed under Sec. 203 of the Cr.P.C., after an enquiry, at which stage the presence of the accused is not required at all. However, the Supreme Court in P. Sundarrajan's case (supra), in a similar matter has laid down the law as follows:- "3. A complaint filed by the respondent herein for an offence punishable under Section 420 IPC before the Judicial Magistrate, Udumalpet, came to be dismissed by the said court. Being aggrieved by the said order of dismissal of his complaint, the respondent herein filed a revision petition before the High Court. The High Court without issuing any notice to the appellant herein, came to the conclusion that on the material available before it, it is not necessary to issue notice to the appellant even when it decided to dispose of the appeal in favour of the respondent herein. ------ 4. On the above basis, it proceeded to consider the material produced by the petitioner before it and without taking into consideration the defence that was available to the respondent proceeded to set aside the order of the Magistrate, and directed the said court to take the complaint on file and proceed with the same in accordance with law. 5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order". (Emphasis supplied). From the above decision of the Supreme Court, it is apparent that the Apex Court has not taken into consideration the Proviso to Sec. 398 of the Cr.P.C., but still the law has been laid down that the principles of natural justice require that even in the cases where the complaint is dismissed under Sec. 203 of the Cr.P.C., at which stage the presence of the accused is not required at all, but if the revision is preferred against such order by the complainant, the accused is required to be given an opportunity to defend his case, before setting aside the order of dismissal of the complaint and passing order for further enquiry into the complaint.;