Supreme Court - Daily Orders
Gurdev Singh vs Surinder Singh . on 21 August, 2014
Bench: Ranjana Prakash Desai, N.V. Ramana
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO.6215 OF 2012
Gurdev Singh … Petitioner
Vs.
Surinder Singh & Ors. … Respondents
ORDER
1. The petitioner and respondents 1 and 2 are brothers. Respondents 1 and 2 filed complaint under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code (“the IPC”) in the Court of Additional Chief Judicial Magistrate, Patiala (“the Addl. C.J.M.”) being Complaint No.55 dated 14/6/2008 against the petitioner and respondent 3.
2. In the complaint, the complainants alleged that an agreement of exchange of land was entered into between the complainants and the petitioner wherein land measuring 12 kanals, 3 marlas i.e. 243/852 Signature Not Verified Digitally signed by share out of land measuring 42 kanals 12 marlas belonging to the Gulshan Kumar Arora Date: 2014.08.25 09:50:23 IST Reason: complainants was transferred to the petitioner and in lieu of this, 2 land belonging to the petitioner measuring 12 kanals 3 marlas i.e. 243/730 share out of total land measuring 36 kanals 10 marlas was transferred to the complainants. On execution of the said agreement, the possession of the land was also exchanged on 22/3/2005. Accordingly and as per the exchange agreement, respondent 3 recorded the exchange mutation in the revenue record vide Rapat No.616 dated 30/4/2005 and Exchange Mutation No.14599 was sanctioned by the Tehsildar, Patiala. According to the complainants, respondent 3 and the petitioner hatched a conspiracy and tampered with the revenue record of village Sanaur, Tehsil and District Patiala in respect of the aforesaid land. According to the complainants, respondent 3 and the petitioner wrote the exchanged area as 14 kanals 3 marlas instead of 12 kanals 3 marlas causing wrongful gain to the petitioner and wrongful loss to them. According to the complainants, on the basis of the illegal and fraudulent entries made by respondent 3 in the revenue record, the petitioner is trying to grab 2 kanals of land from the complainant. The petitioner and respondent 3 have, therefore, played a fraud upon the complainants and cheated them. According to the complainants, though they approached the police, the police did not take any action. The complainants, therefore, filed the present complaint before the Addl. 3 C.J.M as aforesaid.
3. By order dated 19/1/2009, the Addl. C.J.M., dismissed the complaint observing that the complainants should approach the revenue authorities for correction of revenue record. The complainants carried a revision to the Additional Sessions Judge, Patiala. By order dated 6/7/2010, the Additional Sessions Judge, Patiala set aside order dated 19/1/2009 and remanded the complaint to the Addl. C.J.M. with a direction to hold further inquiry in the complaint filed by the complainants. The Addl. C.J.M. by order dated 24/2/2011, holding that there are sufficient grounds to proceed against both the petitioner and respondent 3, issued summoning order. Being aggrieved by the remand order passed by the Additional Sessions Judge, Patiala and the summoning order passed by the Addl. C.J.M., the petitioner filed a petition under Section 482 of the Code of Criminal Procedure (“the Code”) for quashing of Complaint No.55 dated 14/6/2008; remand order dated 6/7/2010 passed by the Additional Sessions Judge and the summoning order dated 24/2/2011 passed by the Addl. C.J.M. By the impugned order, the Punjab & Haryana High Court dismissed the said petition. Hence, this special leave petition.
4
4. Before the High Court, only two submissions were advanced. It was argued that since the matter was remitted to the Addl. C.J.M., it was incumbent upon the Addl. C.J.M. to record fresh evidence before passing summoning order. This contention was rejected by the High Court observing that the zimni orders stated that fresh preliminary evidence was led by the complainants and the summoning order was not passed on the basis of the material which was already on record. The High Court also placed reliance on the judgment of this Court in Subrata Das v. State of Jharkhand & Anr. 1 where this Court has held that direction to hold further enquiry does not necessarily oblige the Addl. C.J.M. to record further evidence. The relevant portion of the said judgment reads thus:
“The matter as noticed by us earlier had been remanded back to the Chief Judicial Magistrate to hold a further enquiry. That direction did not necessarily oblige the Magistrate to record any further evidence in the case. The nature of the inquiry was in the discretion of the Magistrate which may or may not have included recording of further evidence on behalf of the complainant. The Magistrate could without recording any further evidence in the matter reappraise the averments made in the complaint and the material already on record to determine whether a prima facie case was made out against the accused persons. In as much as the Magistrate in the instant case summoned the witnesses and examined them afresh, he may have gone 1 AIR 2011 SC 177 5 beyond what was legally necessary to do but that is no reason to hold that the recording of evidence by the Magistrate as a part of the further enquiry directed by the High Court would vitiate the proceedings before him or the conclusion drawn on the basis of any such enquiry. So long as the Magistrate was satisfied that a prima facie case had been made out, he was competent to issue summons to the accused. All told, the alleged error sought to be pointed out by the appellant is not of a kind that would persuade us to interfere with the proceedings at this stage. In the result this appeal fails and is hereby dismissed.” The High Court further held that preliminary evidence led in the shape of C-1 and C-2 as well as the documents Annexures P-1 to P-5 prima facie disclose the commission of offences punishable under Sections 420, 467, 468, 471, 120-B of the IPC and whether wrong entry in the revenue record was mala fide or bona fide is an issue to be determined by the Addl. C.J.M. during the course of trial.
5. Mr. Luthra, learned senior counsel for the petitioner raised only one contention before us. He submitted that the Addl. C.J.M. dismissed the complaint on 19/1/2009. The complainants carried a revision to the Additional Sessions Judge. By order dated 6/7/2010, the Additional Sessions Judge set aside the order dated 19/1/2009 and remanded the complaint to the Addl. C.J.M. with a direction to hold further enquiry. Counsel submitted that the petitioner/accused 6 was, however, not given a hearing at that stage, which was a must. In this connection, he relied on Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors.2. Counsel submitted that it is therefore necessary to quash the proceedings as they are vitiated on account of failure to give a hearing to the petitioner/accused by the revisional court while setting aside the dismissal of the complaint.
6. We find substance in this submission. Dismissal of the complaint terminates criminal proceedings against the accused. If the complainant carries the matter further by filing a revision and the Sessions Court sets aside the dismissal order and remands the matter to the Addl. C.J.M. for fresh enquiry, the complaint is revived. In this connection, it is necessary to refer to Section 401 of the Code which lays down the High Court’s powers of revision. Sub-section (2) thereof states that 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. Section 399 of the Code refers Sessions Judge’s powers of revision. Sub-section (2) thereof states that where any proceeding by way of revision is commenced before a Sessions Judge under 2 (2012) 10 SCC 517 7 sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and reference in the said sub-sections to the High Court shall be construed as reference to the Sessions Judge.
7. Thus, it was obligatory on the Additional Sessions Judge to hear the accused before setting aside the order of dismissal of complaint in his revisional jurisdiction. Of course, once the matter is remanded to the Addl. C.J.M., the accused will have no right of hearing because at pre-process stage, the law does not give him any such right. It is only in the aforementioned situation that the accused is entitled to a hearing. In Manharibhai Muljibhai Kakadia, this Court considered the question whether a suspect is entitled to hearing by the revisional court in a revision filed by the complainant challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code. This Court considered the relevant provisions of the Code and observed as under:
“Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to find out whether there is some material to support the allegations made in the complaint. The Magistrate has a duty to elicit all 8 facts having regard to the interest of an absent accused person and also to bring to book a person or persons against whom the allegations have been made. To find out the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or direct an investigation to be made by a police officer. The dismissal of the complaint under Section 203 is without doubt a pre-issuance of process stage. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate under Section 202.
xxx xxx xxx xxx 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, up to the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. 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.
xxx xxx xxx xxx The dismissal of complaint by the Magistrate under Section 9 203—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.
xxx xxx xxx xxx 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.”
8. In view of this clear legal position, only on the aforementioned ground, we set aside the impugned order. Needless to say that order dated 6/7/2010 passed by the Additional Sessions Judge, Patiala 10 setting aside order dated 19/1/2009 passed by the Addl. C.J.M. and remanding the complaint to the Addl. C.J.M. with a direction to hold further enquiry is set aside. We direct the Additional Sessions Judge, Patiala to hear the revision application afresh after hearing the petitioner/accused and pass appropriate order at the earliest and in any event within two months from today. Needless to say further that in view of the above, summoning order dated 24/2/2011 passed by the Addl. C.J.M. is also set aside. We, however, make it clear that we have not quashed Complaint No.55 dated 14/6/2008 nor have we expressed any opinion on the view expressed by the High Court on the question whether if a complaint is remanded to the Addl. C.J.M. for enquiry, fresh evidence must necessarily be taken. In fact, on the merits of the case, we have expressed no opinion.
9. The special leave petition is disposed of in the aforestated terms.
……………………………………………..J. (RANJANA PRAKASH DESAI) ……………………………………………..J. (N.V. RAMANA) NEW DELHI, August 21, 2014.
11
ITEM NO.1A COURT NO.6 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).6215/2012
(Arising out of impugned final judgment and order dated 18/07/2012 in CRLM No. 30750/2011 passed by the High Court Of Punjab & Haryana At Chandigarh) GURDEV SINGH Petitioner(s) VERSUS SURINDER SINGH & ORS. Respondent(s) Date : 21/08/2014 This petition was called on for orders today.
CORAM : HON'BLE MRS. JUSTICE RANJANA PRAKASH DESAI
HON'BLE MR. JUSTICE N.V. RAMANA
For Petitioner(s) Mr. Amit Kumar, Adv.
Mr. Ankit Rajgarhia, Adv.
For Respondent(s) Mr. Sharan Thakur, Adv.
Mr. Vijay Kumar Pardesi, Adv.
Dr. Sushil Balwada, Adv.
UPON hearing the counsel the Court made the following O R D E R The special leave petition is disposed of in terms of the signed order.
(Gulshan Kumar Arora) (Indu Pokhriyal)
Court Master Court Master
(Signed order is placed on the file)