Delhi High Court
Sp Gupta vs State Of Nct Delhi & Anr. on 6 August, 2021
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 30th July, 2021
Decided on : 06th August, 2021
+ CRL.M.C. 1163/2021 & CRL.M.A.5948/2021; and
+ CRL.M.C. 1186/2021, CRL.M.A.6061 and 6251 of 2021
VIPUL GUPTA; and S. P.GUPTA ..... Petitioner/s
Through : Mr.Sandeep Sethi, Senior
Advocate with Mr.Vijay Kumar
Aggarwal, Mr.Ashul Aggarwal,
Mr.Hardik Sharma, Mr.Shekhar
Pathak, and Mr.Parth Parashar,
Advocates.
versus
STATE & ANR. ..... Respondents
Through : Mr.M.S.Oberoi, APP for the State.
Mr.Dayan Krishnan, Mr.Mohit
Mathur, and Mr.Sidharth
Aggarwal, Senior Advocates with
Mr.Narender Mann, Mr.P.S.
Singhal, Mr.Ashok Kumar Sharma
and Mr.Jai Allagh, Advocates for
respondent No.2.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Through Video Conferencing)
1. These petitions are filed to assail an impugned order dated
05.04.2021 passed in Crl.Revision No.77/2021 (Crl.M.C. No.1163/2021)
and Crl.Revision No.76/2021 (Crl.M.C. No.1186/2021) by the learned
Principal District and Sessions Judge (HQs), Delhi (hereinafter referred
to as the Revisional Court), against the orders dated 01.02.2021,
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22.02.2021 and 06.03.2021 passed by the learned Additional Chief
Metropolitan Magistrate, Tis Hazari Courts, Delhi in case State vs
S.P.Gupta & Others.
2. It is the grievance of the learned senior counsel for the petitioners
vide the impugned order the learned Revisional Court had directed the
petitioner herein to file an amended memo of parties by impleading the
complainant defacto as respondent No.2, whereas the complainant has no
role to play before learned Revisional Court and its only the learned
Public Prosecutor for the State, who has to take realm of the case before
learned Session's Court. It is argued per sub-section 2 to Section 401 Cr
P C no order shall be passed to the prejudice of the accused or other
person unless he has an liberty of being heard either personally or
through pleader. It is argued the words other person refers to person akin
to the accused and it does not include the complainant and hence the
learned Revisional Court erred to make the complainant defacto as
respondent No.2.
3. The main issue thus raised is qua locus standi. It is argued by
respondents the power of revision, admittedly, is a suo moto power of
correction and supervision over the subordinate Courts; to call for the
records and to correct orders. One can say it is discretion of the
revisional Court to hear any one whom it needs to hear. It is argued Cr P
C when amended in 2009, victim was given right to have a say in
criminal proceedings. The question is if such right can be extended to
revisions before the learned Session's Court. Reference was made to
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Pandharinath Tukaram Raut vs. Manohar Sadashiv Thorve
MANU/MH/1823/2014 wherein the Court held:-
7. Before going further, the issue regarding the
maintainability of the Criminal Revision Application, as
raised by Mr. Bhushan Deshmukh, the learned Counsel for
the Respondent Nos. 1, 2, 5 and 9, be dealt with.
Mr.Deshmukh placed reliance on the decision of the
Supreme Court of India in the case of Subramanian Swamy
and Ors. V/s. Raju, Through Member, Juvenile Justice
Board and Anr., reported in MANU/SC/0849/2013 : (2013)
10 SCC 465, to support his contention that in a prosecution
initiated by the State, a third party / stranger would not
have any right to participate. I have gone through the said
reported judgment and I am unable to hold that this
judgment lays down a proposition that in a prosecution
initiated by the State, a private party has no right to
challenge the order passed in the course of said
prosecution by filing an application for revision. Moreover,
in this case, the Applicants are the victims of the alleged
offences and by no stretch of imagination can be said to be
'strangers' to the proceedings. Mr. Deshmukh also placed
reliance on a decision rendered by a learned Single Judge
of the Karnataka High Court in the case of M/s. Kerala
Transport Co. Vs. D.S. Soma Shekar and Ors., reported in
MANU/KA/0027/1981 : 1982 CRI. L.J. 1065, in support of
his contention that the First Informant has no locus standi
to file a revision in a prosecution initiated by the State.
Indeed, it appears that, the observations made by the
learned Single Judge support the contention advanced by
Mr. Deshmukh, but, with respect, I am unable to agree
with the view expressed by the learned Judge in the said
judgment. It is clear from the scheme of the relevant
provisions that the revisional power belongs basically to
the Court. The Court can call for the record and
proceedings even 'suomotu' and revise the order. When the
court has been given powers to revise an order 'suo-motu',
it would be rather futile to raise the issue of locus standi. In
fact, a party applying for revision is only drawing the
attention of the court to a particular alleged illegality,
impropriety or irregularity. Moreover, as aforesaid, in this
case the Applicants are not 'strangers' to the prosecution,
in as much as, though the prosecution has been initiated by
the State, the Applicants are the victims of the offence. The
Applicant No. 1 is the one who initiated the process of
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criminal law against the accused persons. The contention
that the Criminal Revision Application is not maintainable
as the Applicants have no 'locus standi' to file the same is,
therefore, untenable and is rejected.
Gyan Singh vs. Respondent: State of M.P. and Ors.
MANU/MP/0212/2017 wherein the Court noted:-
10. In view of the specific provision of section 401 (2) of
CrPC, it is clear that no order prejudicial to the interest of
any other person shall be passed unless he had an
opportunity of being heard either personally or through his
Counsel. Thus, when a criminal revision is filed by an
accused against the order taking cognizance or against the
order framing charges, the complainant is required to be
heard. Whenever, any order which is in favor of the
complainant is challenged by the accused, then the
complainant is required to be heard.
Himanshu Adya vs. State of MP & Ors. MANU/MP/0213/2017
wherein the Court noted:-
"12. This Court in the case of Gyan Singh v. State of M.P.
[2017(2) JL J 71 : Criminal Revision No. 1215 of 2015,
order dated 28.2.2017], has held as under:
In view of the specific provision of section 401
(2) of CrPC, it is clear that no order prejudicial
to the interest of any other person shall be
passed unless he had an opportunity of being
heard either personally or through his Counsel.
Thus, when a criminal revision is filed by an
accused against the order taking cognizance or
against the order framing charges, the
complainant is required to be heard. Whenever,
any order which is in favor of the complainant
is challenged by the accused, then the
complainant is required to be heard.
Isa Khan & Ors. vs. State of Rajasthan & Ors.
MANU/RH/0985/2006 wherein the Court noted:-
8. xxxx
The expression "other person" in Sub-section (2) of Section
401 of the Code includes a complainant. Learned Counsel
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has placed reliance on a decision of this Court in Hazi
Mohd. Shafi v. State of Rajasthan & Anr., 2002 (1) RCrD
172 (Raj.), wherein this Court held that no order under
Section 401 (2) of the Code shall be made to prejudice the
accused or other person unless he has had an opportunity
of being heard either personally or through Counsel in his
own defence. The word "other person" includes the
complainant. Thus, without affording an opportunity of
hearing to the complainant, the revisional Court committed
apparent error in setting aside the order passed by the
learned trial Court.
Niranjan Lal vs. Attar Singh (1990) Supp SCC 57 wherein the
Court noted:-
2. We are distressed that the High Court has allowed the
revisional application preferred by Attar Singh and Satvir
Singh s/o Mani Ram - respondents 1 and 2 and reduced the
sentence imposed on them by the lower appellate court from
one of rigorous imprisonment of 18 months to that of
sentence undergone (respondents had not remained in jail
for a single day). It passes our comprehension how the High
Court has persuaded itself to pass such an order without
even issuing a notice to the State or the original
complainant. We can only hope that what has been done by
the High Court in this case will not be repeated in future.
The High Court which day in and day out quashes orders
passed by the executive officials without complying with
principles of natural justice has un understandably allowed
this revisional application without hearing the other side.
The appeal is, therefore, allowed. The order passed by the
High Court is set aside. Both the shall surrender to the
custody in order to undergo the sentence imposed by the
lower appellate court subject to any order for bail or final
order that may be passed by the High Court upon hearing
the parties. The High Court will list the matter for hearing
only after respondents 1 and 2 surrender to custody. The
High Court will thereafter dispose of the matter in
accordance with law with expedition.
4. Hence, the arguments of the respondent is the impugned order is
perfectly justified and petitions need to be dismissed at the outset.
5. Heard.
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6. I have gone through the decisions referred to above. Pandharinath
Takaram Rout (supra) is the judgment on a revision pending before the
High Court and not before the Session's Court. Further, Gian Singh
(supra) and Himanshu Adya (supra) were the orders in the revision in
private cases and not in the cases filed by the State, but whereas present
one is a State case. No doubt, when this Court has to deal with the
revision under Section 482 Cr P C, the victim can, of course, join the
proceedings, but this position of law is different in revision before the
Session's Court, viz in a State case because of bar under Sections 401(2)
Cr.P.C.
7. Section 401(2) and 403 CrP C are as under:-
"401. High Court' s Powers of revisions.
(1) xxxx
(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) to (5) xxxx
403. Option of Court to hear parties. Save as otherwise
expressly provided by this Code, no party has any right to
be heard either personally or by pleader before any Court
exercising its powers of revision; but the Court may, if it
thinks fit, when exercising such powers, hear any party
either personally or by pleader.
8. A bare perusal of Section 401(2) Cr P C would show other person
must be akin to an accused who can participate in the proceedings. The
phrase in his own defence in clause 2 of Section 401 Cr P C strengthens
this belief. The complainant is never heard in his defence and hence the
word „other person‟ referred to in Section 401 Cr P C is a person akin or
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similarly placed to an accused. Section 403 Cr P C is also to be read in
consonance with Section 401 Cr P C as it starts with the word „otherwise
expressly provided by this Code‟.
9. I may here refer to submissions made by the learned senior counsel
for the petitioners stating interalia Section 401(2) Cr P C does not give
any right to the complainant to be heard in revision before the learned
Session's Court and hence the impugned order suffers from illegality. In
support of their arguments, they relied upon Kerala Transport Co. vs.
D.S.Soma Shekar and Ors. MANU/KA/0027/1981; Indu Bala & Ors. vs.
Delhi Administration and Ors. 1991 CRL.J.1774; L.K.Jain and another
vs. State 2001 CRL.J. 259; Shiv Kumar vs. Hukam Chand & Anr. 1999
(2) JCC (SC) 466; Mahabunnisa Begum vs. State of Telangana and Ors.
MANU/AP/1128/2017; The State of Andhra Pradesh vs. Mahabunnisa
Begum and Ors. Special Leave to Appeal (Crl.) 2240/2018; and
Dhariwal Industries Ltd. vs. Kishore Wadhwani & Ors. 2016(8) SCALE
735.
10. The crux of the aforesaid decisions is (i) the word other person
under Section 401(2) Cr P C is either an accused or a person similarly
placed to the accused; (ii) in a Session's trial, the complainant can only
assist the learned Public Prosecutor at the stage of enquiry, trial or appeal
and may submit written arguments only after the evidence is closed; (iii)
the complainant cannot be given an opportunity of being heard in an
anticipatory bail application; (iv) in a case filed on a police report, the
public person has no locus standi after the cognizance is taken; (v) in a
Magistrate triable case, permission may be granted to the person
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concerned to appoint any counsel to conduct the prosecution on his
behalf; (vi) the prosecution in Session's case cannot be conducted by any
person other than the learned Public Prosecutor; and (vii) the reason need
be given if an order Section 401(2) Cr PC is passed to the prejudice of
the accused.
11. Further I may also refer to A.K.Subbaiah & Ors vs. State of
Karnataka & Ors. 1987 SCC (4) 557 wherein the Court held as under:
12. It is not in dispute that these two respondents Nos. 2
and 3 were not parties before the court below. Learned
counsel for the appellants contended that the proceedings
have been launched by the State Govt. on behalf of
respond- ent No. 2 and therefore indirectly respondent No.
2 being the complainant is a party to the proceedings.
That is too tall a proposition. The prosecution is launched
by the State Government and before the court below i.e.
the trial court the only parties are the petitioners who are
accused persons and the State Govt. which stands in the
place of a complain- ant. There are prosecution witnesses
and there may even be defence witnesses. But the
witnesses are not parties to the proceedings and
admittedly these two respondents who have been deleted
by the impugned order of the High Court were not parties
before the court below.
13. xxxx
Sub-clause 2 of this Sec. talks of a situation where an
order is being passed against any person and it was
contended by the learned counsel that the section not only
talks of accused persons but also of "or other person
unless he has had an opportunity of being heard."
Apparently this sub- clause contemplates a situation
where a person may not be an accused person before the
court below but one who might have been discharged and
therefore if the revisional court after exercising
jurisdiction under Sec. 401 wants to pass an order to the
prejudice of such a person, it is necessary that that person
should be given an opportunity of hearing but it does not
contemplate any contingency of hearing of any person
who is neither party in the proceedings in the court below
nor is expected at any stage even after the revision to be
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joined as party. Learned counsel for the appellants was
not in a position to contend that even if any contention of
the appellants is accepted and the High Court accepts the
revision petition as it is, there will be any situation where
an order may be passed against these two respondents or
they may be joined as parties to the proceed- ings.
Reference to Section 401 clause 2 is of no consequence so
far as these two respondents are concerned.
16. In the light of the discussions above therefore it is
clear that the question about anyone else being
instrumental in getting the prosecution launched or
questions which are foreign are not to be considered in a
revision where the issue of process is being challenged
and therefore the further question as to whether the party
against whom an allegation is made is or is not a
necessary party in the proceedings also is of no avail. The
scope of the revisional jurisdiction of the High Court as
we have discussed earlier clearly indicates that the High
Court is only expected to see the legality, correctness or
the propriety of the order, which is an order of issue of
process, these things could only be seen by looking into
the complaint and the accompanying papers and evidence
if any which were before the court below. In our opinion,
the High Court was right in deleting the names of the two
respondents."
12. In Hindustan Times Limited vs Ashok Kumar Aggarwal and
Others (1990) 96 Crl L J 1563 wherein the Court noted as under:-
"7 In M/s. Kerala Transport Co .v.D.S.Soma Shekar and
others, 1982 Cr. L. J. 1065, the question which was
considered was whether the complainant in a police case
could seek revision of the sentence. It was held by a Single
Judge of the Karnataka High Court that after filing the
final report under Section 173 of the Code of Criminal
Procedure, the State is the complainant before the
Magistrate and it becomes the duty of the State to prosecute
the accused. While analysing the provisions of Sections 397
to 401 of the Code of Criminal Procedure, it was observed
that the complainant has no right whatsoever beyond the
right to bringing it to the notice of the court the facts as to
whether there has occurred any illegality or impropriety
in the finding, sentence or order recorded by a criminal
court and while referring to Section 403 of the said Code,
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it was held that there is no right of hearing to be given to a
complainant. There is no legal right of hearing conferred
on the complainant. However, the question which has
arisen for decision before this Court was not raised in this
judgment. It is true that if the sentence awarded by the
Magistrate is to be held to be totally wrong, this Court has
power to modify the order of the Magistrate. I have come
across a judgment of the Punjab & Haryana High Court in
Harjinder Singh v. State of Punjab, 1980 PLR 435 where a
Single Judge for offences punishable under Sections 408
and 409 of the Indian Penal Code thought it fit to give
benefit of Probation of Offenders Act. However, in that
case the accused was aged about 25 years at the time of
commission of the offence.
13. Now, Babloo Pasi vs. State of Jharkhand and Ors. 2008 (13) SCC
133 relied upon by the respondent is also misplaced as revision in Babloo
Pasi (supra) case was filed under Section 53 of the Juvenile Justice Act
and not under Section 401 Cr.P.C. The relevant paras of the judgment
would clarify this :
"8. Section 52 of the Act provides that any person
aggrieved by an order made by a competent authority
under the Act may prefer an appeal to the Court of
Sessions. Section 53 of the Act confers on the High Court
the revisional jurisdiction to satisfy itself as to the legality
or propriety of any order passed by the competent
authority or Court of Sessions. The Section reads as
under:
53. Revision.- The High Court may, at any time,
either of its own motion or on an application
received in this behalf, call for the record of any
proceeding in which any competent authority or
Court of Session has passed an order for the purpose
of satisfying itself as to the legality or propriety of
any such order and may pass such order in relation
thereto as it thinks fit:
Provided that the High Court shall not pass an order
under this section prejudicial to any person without
giving him a reasonable opportunity of being heard.
9. From a bare reading of proviso to the Section, it is
plain that in exercise of its revisional jurisdiction the High
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Court cannot pass an order, prejudicial to any person
without affording him a reasonable opportunity of being
heard. At this juncture, it would be profitable to note that
Section 54 of the Act also prescribes the procedure to be
followed while dealing with inquiries, appeals and
revisions under the Act. Sub-section (2) thereof stipulates
that save as otherwise expressly provided under the Act,
the procedure to be followed in hearing revisions under
the Act, shall be as far as practicable in accordance with
the provisions of the Code of Criminal Procedure, 1973
(for short `the Code'). Sub-section (2) of Section 401 of the
Code contemplates that no order under the said 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."
14. Thus as is seen above „other person‟ doesnot include a
complainant in revision. This is a State prosecution and at the highest the
complainant can be a witness to the proceedings and can participate
through learned APP for the Sate but cannot be a party to the revision
petition. The judgments relied upon by the respondents did not consider
A.K.Subhaiah‟s (supra). I agree with the petitioner if we allow the
complainant to participate before the Session's it shall change the entire
nature of the proceedings from criminal to civil and hence shall hamper
independence of prosecution. The complainant can at best assist the
prosecution, though prosecution in such a case has to make an
independent call.
15. The law laid down in A.K.Subbaiah & Ors (supra) hold good even
for today. The judgments referred to by the respondent No.2 are mostly
under Section 482 Cr.P.C. wherein the High Court may even implead the
complainant in revision. The power under Section 482 Cr.P.C. is quite
different than the one under Section 401 Cr.P.C. as nothing limits such
power of the Court under Section 482 Cr.P.C. and it is far wider than
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under Section 401(2) Cr.P.C. but Session's Court does not have such
parallel power and it cannot implead anyone, except those mentioned
under Section 401(2) Cr.P.C.
16. Thus, in the circumstances, the impugned order passed by the
learned Revisional Court is set aside. However, this shall not disentitle
the complainant to appear before the learned Revisional Court in the
pending revision petitions and to assist the learned APP for the State and
/ or plead their case through the learned APP.
17. The petition(s) stand disposed of in above terms. Pending
application, if any, also stands disposed of.
YOGESH KHANNA, J.
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