Patna High Court - Orders
Gunjari Devi vs State Of Bihar & Anr on 7 July, 2014
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.347 of 2014
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1. Gunjari Devi W/o Meharchand Prasad resident of village Haiderpur, P.S.
Hilsa, District - Nalanda.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Meharchand S/o Late Rama Prasad resident of Harderpur, P.S. Hilsa,
District - Nalanda.
.... .... Opp. Parties
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Appearance :
For the Petitioner/s : Mr. Mrityunjay Kumar, Advocate
For the Respondent/s : Mr. Uma Shankar Pd. Singh, APP
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR
SINGH
ORAL ORDER
4 07-07-2014I.A. No. 852 of 2014 has been filed with a prayer to condone the delay in filing the revision application.
On the grounds mentioned in the Interlocutory Application, the delay in filing the revision application is condoned.
I.A. No. 852 of 2014 is allowed.
Heard learned counsel for the petitioner, state and the O.P. No. 2.
The present Criminal Revision application is directed against the order dated 21.12.2013 passed by the learned Sessions Judge, Nalanda Camp Court, Hilsa in Cr. Revision No. 120 of 2013 / 498 of 2013 setting aside the order dated 16.10.2013 Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 2/17 passed by the learned Judicial Magistrate Ist Class, Hilsa in Complaint Case No. 462 C of 2013 whereby processes were directed to be issued after cognizance being taken for the offences punishable under Section 498A IPC.
The factual matrix of the case is that Complaint Case no. 1069C of 2012 was filed by the petitioner being complainant that she was married with O.P. No. 2, about 35-36 years prior to filing of complaint and from the wedlock, a female child was born, but subsequently, O.P. No. 2, the husband of the petitioner, developed illicit relationship with his sister-in-law (brother's wife), hence, she was driven out from the matrimonial house and thereby torture was inflicted. Though prior to the present complaint case, Complaint Case No. 1069C of 2012 was filed with similar accusation which was dismissed by the learned Sub Divisional Judicial Magistrate, Hilsa vide order dated 5.6.2013 but the said order of dismissal has never been challenged by the petitioner.
After examining the complainant and enquiry witnesses, the learned S.D.J.M., Hilsa vide order dated 16.10.2013 directed for issuance of summon against the O.P. No. 2 after cognizance being taken under Section 498A IPC. O.P. No. 2 being the husband of the petitioner, challenged the order of issuance of Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 3/17 process dated 16.10.2013 passed by the learned S.D.J.M., Hilsa in Cr. Revision No. 120 of 2013 / 498 of 2013. The learned Sessions Judge, Nalanda, Camp Court, Hilsa vide order dated 21.12.2013 set aside the order of issuance of process dated 16.10.2013 passed by the learned S.D.J.M., Hilsa in Complaint Case No. 462C of 2013 on the ground that earlier Complaint Case No. 1069C of 2012 was filed with accusation under Sections 323, 498A and 504 IPC which was dismissed by the learned S.D.J.M., Hilsa vide order dated 5.6.2013 but with the same accusation the present Complaint Case No. 462C of 2013 has been filed on 12.6.2013, which is not sustainable in the eyes of law.
The petitioner being the complainant has challenged the revisional order dated 21.12.2013 passed by the learned Sessions Judge, Nalanda, Camp Court at Hilsa in the present proceeding on the ground that on finding prima facie case, process was directed to be issued after cognizance being taken. More over, although the petitioner was made party in the criminal revision petition but neither notices were issued nor the petitioner was heard and the order of cognizance was set aside while exercising the revisional jurisdiction, which is contrary to the provisions stipulated under Sections 399(2) and 401(2) of the Cr.P.C.
Learned counsel for the petitioner basically confines his Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 4/17 argument to the effect that the revisional order was passed without giving her an opportunity of being heard which is prejudicial to her.
Learned counsel for opposite party no.2 does not dispute the claim of the petitioner, that the petitioner was not noticed by the learned Sessions Judge, while allowing the revision application. Though, it is submitted that earlier, Complaint Case No. 1069 of 2012, bearing similar accusations, was dismissed by learned S.D.J.M., Hilsa vide order dated 05.06.2013, but the same has never been challenged.
After considering the submissions of the parties, it is required that firstly reference may be made to some of the relevant provisions of the Code of Criminal Procedure for adjudicating the question involved in the present proceeding.
Section 397 of Cr. P.C. confers powers of revision on the High Court or any Sessions Court, which reads as under:-
"397. Calling for records to exercise powers of revision.-- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 5/17 regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this Sub-Section and of Section 398.
(2) The powers of revision conferred by sub-Section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
Sections 399 and 401 deal with the power of revision of the Sessions Judge and the High Court which read as follows:
"399. Sessions Judge's powers of revision.----- (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-Section (1) of Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 6/17 Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under subSection (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 references in the said subSections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court."
"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 Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 7/17 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 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."
From the bare reading of the aforesaid provisions, it is clear that in exercise of revisional power, the Sessions Judge or the High Court can call for the records of any criminal court for examining the correctness, legality and propriety of any finding, sentence or order recorded or passed as to the regularity of any proceeding of such inferior court. However, sub-section (2) of Section 397 Cr.P.C. puts a restriction on such power in relation to an interlocutory order passed by the criminal court in an appeal, Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 8/17 inquiry, trial or other proceeding. Similarly, Section 401 empowers the High Court to call for any record in order to examine the correctness, legality or propriety of any order, finding or sentence passed by the inferior courts, however, sub- Section(2) categorically provides that no order shall be made by the High Court in exercise of revisional jurisdiction prejudicing the right of accused or other person unless he has been given opportunity of hearing, either personally or by pleader in his own defence. Section 399(1) Cr.P.C. empowers the Sessions Judge to exercise any of the powers which may be exercised by the High Court under sub-section (1) of Section 401 Cr.P.C. Sub-Section (2) of Section 399 Cr.P.C. provides that where any proceeding by way of revision is commenced before the Sessions Judge under sub-section (1), the provisions of sub-section (2)(3),(4) and (5) of Section 401 Cr.P.C. shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
The bare perusal of the aforementioned provisions suggest that the Sessions Judge also while exercising the revisional jurisdiction cannot pass any order which is prejudicial to the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 9/17
Three expressions: "prejudice", "other person" and "in his own defence" in Section 401(2) are significant for understanding their true scope, ambit and width which has been dealt with by the Apex Court in Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others (2012) 10 Supreme Court Cases 517. Paragraph 47 of the judgment reads as follows:
"47. Three expressions: "prejudice", "other persons" and "in his own defence" in Section 401(2) are significant for understanding their true scope, ambit and width:
47.1. Black's Law Dictionary (8th Edn.) explains "prejudice" to mean damage or detriment to one's legal rights or claims. Concise Oxford English Dictionary (10th Edn., Revised) defines "prejudice"
as under:
Prejudice.- n. (1) preconceived opinion that is not based on reason or actual experience. unjust behaviour formed on such a basis. (2) chiefly Law harm or injury that results or may result from some action or judgment. V.(1) give rise to prejudice in (someone); make biased. (2) cause harm to (a state of affairs)."
47.2. Webster Comprehensive Dictionary (International Edn.) explains "prejudice" to mean
(i) a judgment or opinion, favourable or unfavourable, formed beforehand or without due Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 10/17 examination ... detriment arising from a hasty and unfair judgment; injury; harm.
47.3. P. Ramanatha Aiyar; the Law Lexicon (The Encyclopaedic Law Dictionary) explains "prejudice" to mean injurious effect, injury to or impairment of a right, claim, statement, etc. 47.4. "Prejudice" is generally defined as meaning "to the harm, to the injury, to the disadvantage of someone". It also means injury or loss.
47.5. The expression "other person" in the context of Section 401(2) means a person other than the accused. It includes suspects or the persons alleged in the complaint to have been involved in an offence although they may not be termed as accused at a stage before issuance of process. 47.6. The expression "in his own defence"
comprehends, inter alia, for the purposes of Section 401(2), in defence of the order which is under challenge in revision before the Sessions Judge or the High Court."
The Apex court in the case of P. Sundarrajan and others Vs. R. Vidhya Sekar, (2004) 13 Supreme Court Cases 472 dealt with the application of sub-section (2) of Section 401 Cr.P.C. where the complaint with accusation under Section 420 IPC came to be dismissed by the Judicial Magistrate under Section 203 Cr.P.C. Against the order of dismissal of the complaint, the Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 11/17 complainant preferred revision petition before the High Court. The High Court was of the view that no notice was required to be issued to the suspects for disposal of the revision and set aside the order of the Magistrate, while directing the Magistrate to proceed with the complaint afresh in accordance with law. The order of the High Court was challenged by the suspects before the Apex Court under Article 136 of the Constitution of India. The Apex Court granted leave, allowed the appeal, set aside the order of the High Court and remitted the matter back to the High Court with a direction to issue proper notice to the persons accused of the crime in the complaint and proceed with the revision petition after affording them a reasonable opportunity of hearing. Paragraphs 5 and 6 read as follows:
"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.
6. We have, therefore, no hesitation in allowing this appeal, setting aside the impugned judgment and remanding the matter to the High Court to issue proper notice to the appellant herein who is the respondent in the criminal revision petition before it and afford him a reasonable opportunity of Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 12/17 hearing and to pass appropriate orders. The appeal is allowed."
The Apex court in the case of Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd. (2009) 2 SCC 363 dealt with the application of the provision of sub-section (2) of Section 401 of the Cr.P.C. in a different situation where the complaint was filed with the accusation under Sections 323,382,420,465,468,471,120B and 506/34 IPC. Along with the complaint, an application under Section 156(3) was also made for transmitting the complaint to the police for investigation. The Metropolitan Magistrate passed an order refusing to direct investigation under Section 156(3) and the complainant was asked to lead pre-summoning evidence. The complainant aggrieved by the order of the Metropolitan Magistrate filed a revision petition before the High Court. The High Court, after hearing the learned APP appearing for the State, set aside the order of the Metropolitan Magistrate with a direction to him to examine the matter afresh after calling for a report from the police authorities. The order of the High Court was challenged before the Apex Court. The Apex Court observed that by refusing to exercise the jurisdiction under Section 156(3) of the Cr.P.C. Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 13/17 the learned Metropolitan Magistrate has taken cognizance by applying his mind to the accusation made in the complaint petition, hence, held that the accused were entitled to be heard by the High Court. Paragraphs 22 and 23 read as follows:
"22. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156(3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code.
23. We, therefore, are of the opinion that the impugned judgment cannot be sustained and is set aside accordingly. The High Court shall implead the appellant as a party in the criminal revision application, hear the matter afresh and pass an appropriate order."
Similar view was taken by the Apex Court in the case of A.N. Santhanam v. K. Elangovan (2012) 12 SCC 321 where it has been held that a plain reading of clause (2) of the said provision makes it abundantly clear that the High Court in exercise of its revisional power cannot pass any order which may Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 14/17 cause prejudice to the accused or other persons unless he has an opportunity of being heard either personally or by pleader in his own defence.
The right of hearing given to an accused under Section 401(2) Cr.P.C. was elaborately dealt with by the Apex Court in the case of Manharibhai Muljibhai Kakadia (supra). Paragraph 46 reads as follows:
"46. 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 mater 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 enquiry 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 Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 15/17 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."
The question of applicability of sub-section (2) of Section 401 of the Cr.P.C. has also been considered in the case of Mohit alias Sonu and another Vs. State of Uttar Pradesh and another (2013) 7 Supreme Court Cases 789. Paragraph 13 reads as follows:
"13. Similarly, Section 401 empowers the High Court to call for any record in order to examine the correctness, legality or propriety of any order, finding or sentence passed by the inferior courts. However, sub-Section (2) categorically provides that no order shall be made by the High Court in exercise of revisional jurisdiction affecting and prejudicing the right of the accused or other person, unless he has been given opportunity of hearing Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 16/17 either personally or by pleader in his own defence."
In the present case, the learned Magistrate vide order dated 16.10.2013 took cognizance against the O.P. No. 2 for the offence under Section 498A of the IPC and directed for issuance of process and the said order was set aside by the learned Sessions Judge, Nalanda without giving an opportunity to the complainant/ petitioner of being heard nor her pleader was given opportunity to defend the order of issuance of process, which is definitely prejudicial to the petitioner. The revisional order dated 21.12.2013 passed by the learned Sessions Judge, Nalanda, Camp Court Hilsa in Cr. Revision No. 120 of 2013/ 498 of 2013 does not suggest that any notice was issued to the petitioner i.e., complainant of the case. Hence, the revisional order is violative of the provision of sub-section (2) of Section 401 and 399(2) Cr.P.C., and cannot be sustained.
Moreover, giving a prudent thought to the said circumstances, it is unthinkable that a person, who seeks a remedy before the court of law, is ousted at the pre-trial stage itself, without being accorded an opportunity of hearing. The case of the complainant may or may not be upheld finally, but once the learned Magistrate has applied his mind and has taken cognizance of the offence and thereafter, issued summon, the complainant Patna High Court CR. REV. No.347 of 2014 (4) dt.07-07-2014 17/17 has every right to be noticed and heard, if the order issuing summons is challenged by the accused before any superior court. The requirement of notice and the requirement of giving an opportunity of being heard to the complainant cannot be negated, while setting aside the order issuing summons to the accused.
In view of the discussions made above, the order dated 21.12.2013 passed by the learned Sessions Judge, Nalanda Camp Court, Hilsa in Cr. Revision No. 120 of 2013 / 498 of 2013 is hereby set aside. The Criminal Revision is remitted back to the docket of the learned Sessions Judge, Nalanda to issue notice to the affected persons including the petitioner and re-hear the matter and dispose of the Cr. Revision in accordance with law.
Accordingly, this application is allowed.
It is made clear that this Court has not expressed any opinion on the merit of the complaint.
(Dinesh Kumar Singh, J) Anil/-
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