Madras High Court
N. Kalyani vs Venkata Shivakumar on 15 December, 2014
Author: C.T.Selvam
Bench: C.T. Selvam
In the High Court of Judicature at Madras Dated: 15.12.2014 Coram :: The Hon'ble Mr. Justice C.T. Selvam Crl. R.C. No. 1045 of 2014 and Crl. O.P. No: 1885 of 2014 N. Kalyani W/o. K.S. Narayanan No: 23/1, Coats Road T. Nagar ... Petitioner in both the Chennai 600 017. cases -vs- Venkata Shivakumar No: 10/11 Dr. Subbaraya Nagar Main Road Opp. To Samiyar Madam Kodambakkam ... Respondent in both the Chennai - 600 024. cases Criminal Revision filed under section 397 r/w 401 of the Code of Criminal Procedure, to allow this revision petition and set aside the order of XVI Additional Sessions Judge, Chennai, in Crl. R.C. No: 107/2012 dated 01.04.2013 against M.P. No: 6322 of 2012 on the file of the XVII Metropolitan Magistrate Court, Saidapet. Criminal Original Petition filed under Section 482 Cr. P.C. To call for the records in C.C. No: 1962 of 2013 on the file of the III Fast Track Court, Saidapet, and quash the same. For Petitioner : M/s. V.P. Raman For Respondent : M/s. S. Senthil Nathan ****** O R D E R
In Crl. Revision No: 1045 of 2014, challenge is to the order passed in Crl. R.C. No: 107 of 1012 dated 01.04.2013 by the XVI Additional Sessions Judge, Chennai. The respondent preferred a complaint alleging offences undeer Section 138 of the Negotiable Instruments Act. Upon the dismissal thereof by the XIII Additional C.M.M. Court at Bangalore, the Hon;ble High Court at Karnataka returned the complaint and directed it to be presented before the appropriate Court at Tamil Nadu in keeping with Section 201 Cr.P.C. Thereafter, the respondent presented the complaint, in M.P. No: 6322 of 2012, before the XVII Metropolitan Magistrate, Saidapet, Chennai, who was pleased to dismiss the same under Section 203 Cr.P.C. There against the respondent moved a revision in Crl. R.C. No: 107 of 2012 before the XIV additional Sessions Court. Under orders dated 01.04.2013, such Court was pleased to set aside the order of the 17th Metropolitan Magistrate, Saidapet, and directed the case to be taken on file. This revision is filed against such order.
2. The sole ground raised by the learned counsel for the petitioner is that in entertaining and allowing the revision,the Sessions Court has failed to give notice to the petitioner. Though the learned counsel for the respondent submitted that the powers exercised by this Court under Section 401 are greater than that exercised by the Court of Sessions under Section 397 and it is only owing to Sub Section 2 of Section 401 I.P.C. that notice to the accused / petitioner would become necessary, we are unable to accept such a contention. The proposition laid down in Manharibhai Muljiehai Kakadia and another vs. Shaileshbhai Mohanbhai Patel and others, 2012 (10) S.C.C. 517 in paragraphs 53 and 54 are relevant. The observations made therein are as follows:
53. We are in complete agreement with the view expressed by this Court in P.Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. 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.
54. In view of the above position, the impugned order dated 5.8.2005 cannot be sustained and is liable to be set aside and, is set aside. The appellants' application for impleadment in the criminal revision petition stands allowed. The High Court shall now hear the matte and dispose of the criminal revision petition in accordance with law. The appeal is allowed as above.
3. The contention of the learned counsel for the respondent is to be rejected for the reason that Section 399 Cr.P.C. informs that a Sessions Judge while proceeding in exercise of revisional powers would also need to follow Sub Section 2 of Section 401 Cr.P.C. The revision shall stand allowed. The matter now stands remitted back to the Sessions Court for fresh consideration of the challenge to the order of the 17th Metropolitan Magistrate, Saidapet, dated 16.10.2012 after causing notice to the petitioner / accused and hearing both sides.
C.T.SELVAM, J.
4. As a consequence of the above order, the Criminal Original Peition filed in Crl. O.P. No: 1885 of 2012 challenging the cognizance of the complaint of the respondent and taking the same on file in C.C. No: 1962 of 2013 on the file of the Fast Track Court, Saidapet, pursuant to the order of the learned XVI Additional Sessions Judge, Chennai, passed in R.C. No: 107 of 2012 dated 01.04.2013 shall stand allowed. The proceedings in C.C. No: 1962 of 2013 shall stand closed. Connected miscellaneous petitions are closed. There shall be no orders as to the costs.
Index : Yes / No 15.12.2014
Website : Yes / No
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To
1. XVI Additional Sessions Judge,
Chennai.
2. The Presiding Officer
Fast Track Court,
Saidapet,
Chennai.
Crl. R.C. No.1045 of 2014
and Crl. O.P. No:1885 of 2014