Madhya Pradesh High Court
Anirudh Garg vs The State Of Madhya Pradesh on 24 May, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 24th OF MAY, 2024
MISC. CRIMINAL CASE No. 7635 of 2024
BETWEEN:-
ANIRUDH GARG S/O GOPAL GARG, AGED
ABOUT 34 YEARS, OCCUPATION: BUSINESS 33-
A, OLD AGRAWAL NAGAR, INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SHASHWAT SETH - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
BHAWARKUAN, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY MS. HARSHLATA SONI - G.A.)
....................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
1] This petition has been filed by the petitioner under Section 482 of Cr.P.C. seeking the following reliefs:-
"Therefore, it is respectfully requested to the Hon'ble Court that while accepting the petition presented-on behalf of the applicant, in the interest of justice, pass the order of registering the first information report under sec. 420, 406, 409, 416, 417, Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 5/27/2024 6:42:09 PM 2 457, 451, 467, 468, 471, 474, 120-B, 34, 506 of the Indian Penal Code at police station Bhawarkua, Indore in the interest of Justice."
2] The petitioner's case is that he had filed an application under Section 156(3) of Cr.P.C. before the Judicial Magistrate First Class, Indore, which has been rejected by the said Court, holding that the petitioner has not filed the proper affidavit along with the complaint, as is stipulated by the Supreme Court in the case of Babu Venkatesh and Another Vs. State of Karnataka In Cr.A. No.252/2022 as also, in the case of Priyanka Shrivastava Vs. State of U.P., AIR 2015 SC 1758, and it is directed that the petitioner may record his statement under Section 202 of the Cr.P.C.. 3] On a bare perusal of the petition it is apparent that it has been filed being aggrieved of the order passed by the Trial Court rejecting the application of the petitioner under Section 156(3) of Cr.P.C., however, by resorting to clever drafting, the petitioner has not even challenged the aforesaid order, which appears to be, to circumvent the remedy of revision as provided under Section 397 of Cr.P.C., and further considering the fact that the petitioner has not made the accused persons as party respondents, who are also required to be heard before any order is passed in favour of the petitioner, this Court is not inclined to entertain this petition under Section 482 of Cr.P.C. when the remedy of revision is also available to him.
4] In this regard, reference may be had to the decision rendered by the Supreme Court in the case of Jagannath Verma Vs. State of U.P., 2014 SCC OnLine All 11859, in which it is held that an order Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 5/27/2024 6:42:09 PM 3 of Magistrate rejecting an application under Section 156(3) of Cr.P.C. is not a interlocutory order and can be challenged in a revision under Section 397 of the Cr.P.C., and so far as the necessary parties to a criminal revision are concerned, the Supreme Court in the case of Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbhai and Others reported as (2012) 10 SCC 517, has held as under:-
17. Section 397 of the Code empowers the High Court or the Sessions Judge to call for and examine the record of any proceeding before any inferior court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety, inter alia, of any order passed by such inferior court. The powers of revision are concurrent with the High Court and the Sessions Judge. By virtue of Section 399, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401 and while doing so the provisions of sub-sections (2), (3), (4) and (5) of Section 401 apply to such power as far as possible.
18. Section 401 deals with the High Court's power of revision and it reads as follows:
"401. High Court's powers of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 5/27/2024 6:42:09 PM 4 shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
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41. A Single Judge of the Punjab and Haryana High Court in Gurdeep Singh [ILR (2001) 2 P&H 388] was concerned with a petition under Section 482 of the Code filed by the accused seeking quashment of the order passed by the Sessions Judge setting aside the order of the CJM whereby the complaint was dismissed for want of prosecution. The dismissal of the complaint by the CJM for want of prosecution was at the initial stage. The challenge to the order of the Sessions Judge by the accused was on the ground that the Sessions Judge while allowing the revision application had infringed the provisions of Section 401(2) of the Code inasmuch as no opportunity of being heard was given to the accused although the complaint was dismissed for want of prosecution. The Single Judge of that Court took the view as follows: (ILR p. 399, para 14) "14. ... By no stretch of imagination, in my opinion, the accused can seek the setting aside of the order passed by the Sessions Judge on the ground that the said order was passed by the Sessions Judge without issuing notice to the accused. As referred to above, the accused petitioner cannot take benefit of the provisions of Section 401(2) CrPC as it could not be said that any order to the prejudice or against the petitioner had been passed by the learned Sessions Judge. On the other hand, the order--vide which the complaint was dismissed for want of prosecution was set aside by the learned Sessions Judge. If the case of the accused-petitioner was not covered under Section 401(2) CrPC, it was not at all necessary for the learned Sessions Judge to have heard the accused- petitioner while setting aside the order of the learned Magistrate in view of the provisions of Section 403 CrPC. Even otherwise in view of the proviso to Section 398 CrPC only the person who was discharged had a right to be heard before the order of Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 5/27/2024 6:42:09 PM 5 discharge could be set aside in revision by the Court of Session in exercise of its revisional jurisdiction. In this view of the matter, in my opinion, the contention of the learned counsel for the accused-petitioner that the order passed by the learned Sessions Judge was liable to be set aside only on the ground that the accused-petitioner was not heard, could not be sustained."
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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 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 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 the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get the right of hearing before the 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 the 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 the 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. xxxxxxx
53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan [(2004) 13 SCC 472 : (2006) 1 Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 5/27/2024 6:42:09 PM 6 SCC (Cri) 345] , Raghu Raj Singh Rousha [(2009) 2 SCC 363 :
(2009) 1 SCC (Cri) 801] and A.N. Santhanam [(2012) 12 SCC 321 : (2011) 2 JCC 720] . We hold, as it must be, that in a revision petition preferred by the 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 the crime is entitled to hearing by the Revisional Court. In other words, where the 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 the crime have, however, no right to participate in the proceedings nor are they 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."
(Emphasis Supplied) 5] In such circumstances, it would be necessary for the petitioner to array the accused persons as party in the criminal revision which he can file before the Sessions Court. With the aforesaid observations, the petition being misconceived is hereby, dismissed with a cost of Rs.5000/- as also with the liberty reserved to the petitioner as aforesaid.
6] The cost of Rs.5,000/- shall be paid by the petitioner in the account of -President and Secretary H.C. Employees Union H.C. (Account No.63006406008, Branch Code No. 30528, IFSC Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 5/27/2024 6:42:09 PM 7 No. SBIN0030528, CIF No. 73003108919) within a period of 60 days from today and obtain a receipt.
(SUBODH ABHYANKAR) JUDGE Bahar Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 5/27/2024 6:42:09 PM