Allahabad High Court
Atul Pandey Alias Param Pragyan Pandey vs State Of U.P. And Another on 8 January, 2021
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Case :- APPLICATION U/S 482 No. - 18108 of 2020 Applicant :- Atul Pandey Alias Param Pragyan Pandey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ali Hasan,Istiyaq Ali Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J.
1. The applicant is aggrieved by the order dated 16.10.2020 entered by the Judicial Magistrate II, Bhadohi at Gyanpur, declining to pass an order to register an FIR and directing that the application of the applicant under Section 156 (3) Cr.P.C. be registered as a complaint case.
2. Sri Ali Hasan, learned counsel for the applicant contends that the learned Magistrate erred in law by refusing the prayer to register an FIR in the application under Section 156 (3) Cr.P.C. and instead treating the application as a complaint. He relies on the judgment rendered by this Court in Ashok Kumar Pathak Vs State of U.P. and another in Application U/S 482 No. 43271 of 2018 on 30.11.2018. He then contends that the proposed accused is not entitled to an opportunity of hearing before the registration of FIR. The Magistrate arbitrarily declined to register the FIR even though a cognizable offence was disclosed in the application under section 156 (3) Cr.P.C.
3. Sri Ankit Srivastava, learned counsel for the State resisting the said contentions calls attention to a Full Bench judgment of this Court rendered in Jagannath Verma and others Vs State of U.P. and another reported at 2015 (88) ACC 1 and submits that the impugned order is revisable and further the proposed accused is entitled to be noticed and given an opportunity of hearing.
4. Rejoining the issue, Sri Ali Hasan, learned counsel for the applicant modifies his earlier submissions to state that the application under section 156 (3) Cr.P.C. has not been rejected and the Court has proceeded with the case by adopting the procedure of a complaint case. The application is still pending and hence the impugned order is not revisable.
5. Heard learned counsel for the parties.
6. Prior to entering on the submissions on the merits of the impugned order passed by the learned court below, this Court is inclined to consider the objections raised by the State in light of the law laid down by the learned Full Bench of this Court in Jagannath Verma (supra) to the facts of this case.
7. The facts and circumstances of the case can be prised out from the record before this Court for determination of this issue. The facts are in a narrow compass. The prayer made in the application under section 156 (3) Cr.P.C., by the applicant was for a direction to the Police Station Incharge, Oonjh, District Bhadohi to lodge an FIR under sections 419, 420, 406, 467, 468, 471, 120-B, I.P.C. against accused Janardan Pandey and conduct the investigation accordingly. The learned trial court declined the prayer to register the FIR but instead treating the application as a complaint proceeded under the procedure prescribed in Chapter XV of the Cr.P.C. The learned trial court made the following determination;
"Rather, it appears to be a fit case where the given application be regarded as a complaint and accordingly be proceeded under Chapter XV of the Code of Criminal Procedure. In this regard, it becomes pertinent to cite the judgment of the Hon'ble High Court of Allahabad in Sukhwasi Vs State of Uttar Pradesh 92008 CrLJ 472), wherein was observed that, "it is not always mandatory in each and every case for the Magistrate to pass an order to register an FIR and investigate on receipt of the application under section 156 (3) Cr.P.C. He may treat such application as complaint within the meaning of sec. 2(d) of the Cr.P.C. and may proceed onward in accordance with the procedure as laid down under Chapter XV of CrPC."
8. The relief sought by a party but not granted by the Court in its order is deemed to be a rejection or denial of the aforesaid prayer. In this case, I find that the prayer for lodgment of an FIR has been declined by the impugned order dated 16.10.2020 rendered by the learned trial court.
9. The following questions were posed for determination before the Larger Bench of this Court in Jagannath Verma (supra);
"(1) Whether an order made under Section 156 (3) of the Code rejecting an application for a direction to the police to register and investigate, is revisable under Section 397; and (2) If the answer to Question (1) is in the affirmative, then, whether in a revision filed against an order rejecting an application under Section 156 (3), the prospective accused is also a necessary party and is required to be heard before a final order is passed."
9. The learned Full Bench first undertook a comprehensive survey of Chapter XIV of Code of Criminal Procedure. In particular Sections 154, 156 157, 159 were noticed. The discussion was taken forward by examination of contents of Section 190 of Chapter XIV of the Cr.P.C. Attention was also accorded to Chapter XV of the Cr.P.C. in regard to the procedure prescribed for a complaint case. An analysis of the aforesaid provisions was commenced with the consideration of the mandate of Section 154 Cr.P.C. in light of the law laid down by the Hon'ble Supreme Court in Lalita Kumari Vs Government of Uttar Pradesh reported at 2014 (84) ACC 719 (SC).
10. The aforesaid consideration was followed by an exhaustive analysis of provisions of Section 156, Section 190 Cr.P.C. The mandate of the aforesaid provisions was considered in light of the law laid down by the Hon'ble Supreme Court in Gopal Das Sindi Vs State of Assam reported at AIR 1961 SC 986, Mohd. Yusuf Vs Afaq Jahan reported at 2006 (54) ACC 530 (SC) and also in Sakiri Vasu Vs State of Uttar Pradesh reported at 2008 (60) ACC 689 (SC).
11. The distinctive mandate of Chapter XII and Chapter XIV Cr.P.C. was given due weight. Dealing with the scope of Section 156 (3) Cr.P.C. and the consequences of the rejection of application under section 156 (3) Cr.P.C. and procedure to be adopted in a complaint case the learned Full Bench was held as under;
"36. Now it is in this background that it would be necessary for the Court to consider the import of an order passed by the magistrate declining to issue a direction under Section 156 (3) ordering an investigation as specified in sub-section (1). When a written complaint is made before a magistrate disclosing a cognizable offence, the magistrate may send the complaint to the concerned police station under Section 156 (3) for investigation. If this course of action is adopted, the police is required to investigate into the complaint. On the completion of the investigation, a report is submitted under Section 173 (2), upon which a magistrate may take cognizance under Section 190 (1) (b). Alternately, when a written complaint disclosing a cognizable offence is made before a magistrate, he may take cognizance under Section 190 (1) (a), in which event he has to proceed in accordance with the provisions of Chapter XV. The exercise of the power under Section 156 (3) is before the magistrate takes cognizance. Once the magistrate has taken cognizance under Section 190, it is not open to him to switch back to Section 156 (3) for the purposes of ordering an investigation. Section 200 requires that the magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses, if any. Section 202 enables the magistrate to postpone the issuance of process against the accused on receipt of a complaint of an offence of which he is authorised to take cognizance, in which event he may follow one of the following courses:
(i) The magistrate may, either enquire into the case himself; or
(ii) The magistrate may direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purposes of deciding whether or not there is sufficient ground for proceeding. However, the two provisos to Section 202 stipulate that no direction for investigation shall be made (i) where it appears that the offence complained of is triable exclusively by the Court of Session; or (ii) in a complaint which has not been made by a court, unless the complainant and the witnesses present, if any, have been examined on oath under Section 200. The proviso to sub-section (2) stipulates that if it appears to the magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. Under Section 203, upon considering the statements on oath, if any, of the complainant and of the witnesses and the result of the enquiry or investigation, if any, under Section 202, if the magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint recording brief reasons.
37. These provisions amply demonstrate that Chapter XII on the one hand and Chapter XV on the other, operate in two distinct spheres. The duty to investigate into offences is of the State and it is from that perspective that the provisions of Chapter XII including Sections 154 and 156 have been engrafted into legislation. The rejection of an application under Section 156 (3) closes the avenue of an investigation by the police under Chapter XII. For the informant or complainant who provides information in regard to the commission of a cognizable offence, an investigation by the police under Chapter XII is a valuable safeguard which sets in motion the criminal law and ensures that the offender is traced and is made answerable to the crime under the penal law of the land. Closing this avenue of ordering an investigation by the police under Section 156 (1) cannot be treated as a matter of no moment or a matter akin to a procedural direction. Depriving the person who provides information of the safeguard of an investigation under Chapter XII is a serious consequence particularly when we evaluate this in the context of the alternative remedy which is available under Chapter XV of the Code.
38. In Chapter XV of the Code, the complainant is subject to the burden of producing evidence before the court. This distinction between the procedure which is enunciated in Chapter XII and the provisions of Chapter XV has been noted in several decisions of the Supreme Court from Devarapalli Lakshminarayana Reddy (supra) to the more recent decision in Samaj Parivartan Samudaya (supra). A magistrate who takes cognizance under Section 200 has to examine the complainant and his witnesses on oath. Though, under Section 202 the magistrate may postpone the issuance of process and direct an investigation to be made by a police officer, it is well settled that this investigation under Section 202 is for the purpose of deciding whether or not there is sufficient ground for proceeding. The object of an investigation under Section 202 is not to initiate a fresh case on a police report but to assist the magistrate in completing proceedings already instituted on a complaint before him.
12. The discussion of the remedy available to a litigant upon rejection of such application was taken up in paragraphs 39 to 46. The remedy of revision was against an order declining the registration of an FIR under section 156 (3) Cr.P.C. was provided on the foot of full reasons:
"Section 397
39. Section 397 (1) empowers the High Court and a Sessions Judge to call for and examine the record of any proceeding before an inferior criminal court situated within the local jurisdiction, for the purpose of satisfying itself or himself of the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. Sub-section (2) of Section 397, however, excludes the exercise of the revisional power in relation to an interlocutory order passed in an appeal, inquiry, trial or other proceeding. Section 397 (2) provides as follows:
"397. Calling for records to exercise powers of revision. (1) ... ...
(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."
40. The issue which falls for determination is the meaning of the expression "interlocutory order" in Section 397 (2). In Amar Nath Vs State of Haryana19, an FIR was registered in relation to an incident in a village where three persons had died. The appellants were named in the FIR as having participated in the event. After investigation, the police submitted a charge sheet against the other accused except the appellants in relation to whom the police opined that no case was made out. A final report under Section 173 was submitted, which came to be accepted by the judicial magistrate. The revision petition filed by the complainant was dismissed by the Additional Sessions Judge, upon which a regular complaint was filed before the judicial magistrate against all the accused, including the appellants. The magistrate dismissed the complaint on being satisfied that no case was made out against the appellants, whereupon the complainant took the matter in revision before the Sessions Judge. The Sessions Judge allowed the revision and remanded the case to the judicial magistrate for further enquiry, upon which the latter issued summons to the appellants straightaway. This order was challenged unsuccessfully by the appellants before the High Court, inter-alia, under Section 397: the High Court dismissed the petition on the ground that the order of the judicial magistrate summoning the appellants was interlocutory in nature and hence the revision was barred. The Supreme Court observed that the bar on a revision against interlocutory orders was introduced because High Courts were flooded with revisions of all kinds against interlocutory orders resulting in a delay in the disposal of cases. Explaining the ambit of the expression "interlocutory order", the Supreme Court observed as follows:
"The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious diffident. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court." (emphasis supplied)
41. The test to be applied is whether an order is purely interim or temporary in nature which does not decide or touch upon important rights or liabilities of parties. In distinction, an order which substantially affects the rights of the accused or decides certain rights of the parties is not an interlocutory order. An order which deals with matters of moment and which affects or adjudicates upon rights or a particular aspect of the trial is not an interlocutory order so as to be outside the pale of revision. Interlocutory orders are purely procedural orders which do not affect rights and liabilities of parties and are steps towards the process of final adjudication. An interlocutory order merely regulates the procedure and does not affect rights or liabilities. Bearing in mind these principles, the Supreme Court noted that in that case, the appellants had been released by the judicial magistrate upon the submission of a final report by the police and a revision to the Additional Sessions Judge had failed. The appellants were held to have acquired a valuable right of not being put on trial unless a proper order was made against them. When a complaint was thereafter filed which again was dismissed by the judicial magistrate, the Sessions Judge remanded the proceedings. In pursuance of the remand, when the judicial magistrate summoned the appellants, the question of the appellants being put to trial arose for the first time. This was held to be a valuable right which the appellants possessed and which was being denied to them by the order of the judicial magistrate. The order of the judicial magistrate was, in the circumstances, a matter of moment in the view of the Supreme Court and a valuable right was regarded as having been taken away by the magistrate in passing an order, prima facie, in a mechanical fashion without application of mind. Hence, the revision was held to be maintainable.
42. The submission which has been urged on behalf of the petitioners, however, is that while the police ought to register an FIR whenever facts brought to their notice show that a cognizable offence has been made out, a remedy is provided by the Code in the event that the police fail to do so. In such an event, it has been urged that the modalities to be adopted are those which are specified in Section 190 read with Section 200. The submission is that since an alternate remedy is available, the rejection of an application under Section 156 (3) does not result in the doors being shut to the complainant who can avail of the remedy provided in Chapter XV by submitting a complaint to the magistrate.
43. Since this submission is based on the judgment of the Supreme Court in Aleque Padamsee (supra), the judgment in that case would have to be analyzed. In Aleque Padamsee, a petition was filed under Article 32 of the Constitution before the Supreme Court because of the inaction of police officials in failing to register an FIR and in according sanction in terms of Section 196 IPC. It was alleged that the fifth and sixth respondents made speeches which were likely to disturb the communal harmony and to create hatred against persons belonging to minority communities. The police authorities in Maharashtra found that since speeches were delivered outside the State, action could be taken by the authorities in that latter State. The report which was lodged was, accordingly, forwarded to officials in the other State. The submission was that though the FIR ex facie disclosed the commission of a cognizable offence, the police were not justified in registering it. It was in this background that the Supreme Court held as follows:
"(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.
(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions."
44. These observations would not determine the issue as to whether a revision under Section 397 is barred where an application made to the magistrate under Section 156 (3) is rejected. That was not the matter in issue before the Supreme Court. Whether an order rejecting an application under Section 156 (3) would constitute an interlocutory order did not fall for determination and hence the judgment in Aleque Padamsee does not deal with this aspect. On the contrary, it is clear that for a revision to be barred under Section 397 (2), an order must fulfill the description of being an interlocutory order. An interlocutory order is in the nature of a procedural order which is a step taken towards final adjudication of the case. An interlocutory order is an order which does not affect or adjudicate upon the substantial rights of parties.
45. An order which determines matters of moment or which affects valuable rights is not an interlocutory order. An order passed by the magistrate declining to entertain an application under Section 156 (3) is a matter of moment for the complainant or the informant because such an order has the effect of declining to issue a direction to the police to register an FIR and investigate the case. That avenue of a police investigation is foreclosed by the passing of an order under Section 156 (3). The remedy of a complainant under Section 200 stands in a distinct and independent sphere and is subject to the discharge of statutory obligations which a complainant, who brings focus on the commission of a cognizable offence, may not be able to bear. In the referral order of 13 December 2013, the learned Single Judge has emphasized that it is a primary constitutional mandate of the State, under the Directive Principles of State Policy, to ensure that opportunities for securing justice are not denied to a citizen by reason of economic and other disabilities. The learned Single Judge has cited two telling illustrations, which we may extract hereafter only to emphasize the serious consequences that are liable to emerge if the remedy of a revision under Section 397 (2) is shut out to a complainant against an order of the magistrate declining to order the registration of a case or registration of an FIR and declining to direct an investigation under Section 156 (3):
"To elucidate the point: where a son of a maid servant, who had gone to demand his wages from a doctor in a nursing home on the occasion of the doctor's daughter's marriage is found drowned in a pond and the body discovered had blood oozing from the mouth and nostrils and the Magistrate on the application under Section 156(3) CrPC refuses to order registration and investigation of the case, can the maid servant be expected to get justice by lodging a private complaint and collecting evidence against the influential doctor. Similarly, where in an open assault, the husband of the complainant is felled and killed at the spot, the victim being the near relation of the accused, say brother of the accused, the widow having been first withheld from going to police station to lodge a report and when after some time she reaches the police station, the police turning her away and not registering a case and when the woman resorts to her parental house and then moves an application along with post mortem report under Section 156 (3) CrPC and the Magistrate treats the same as complaint, can the lady be expected to collect evidence from a village where she is not residing, the persons who are powerful and resourceful (both the illustrations cited happen to be the real cases which came to my notice while working as District and Sessions Judge)."
46. To expect a complainant who suffers from grave social disabilities occasioned by the widespread societal discrimination on grounds of gender and caste, which prevail in our society more than six decades after independence, to effectively prosecute a complaint before the magistrate under Chapter XV of the Code, would be to shut our eyes to social reality. The well settled distinction between a police investigation falling within the ambit and purview of Chapter XII and an enquiry or investigation ordered by the magistrate under Section 202 have already been noticed earlier following the decision of the Supreme Court in Devarapalli Lakshminarayana Reddy (supra). The power of the magistrate under Section 202 to postpone the issuance of process and to direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding, is distinct from an order under Section 156 (3). This distinction is part of the well settled principle of our law. Hence, in our view, where an order is passed by the magistrate declining to order an investigation under Section 156 (3), such an order affects the valuable rights of the complainant and is a matter of moment. Access to the remedy of a revision under Section 397 (1) is not barred since such an order is not an interlocutory order under sub-section (2). Nor can access to the statutory remedy of a revision under Section 397 (1) be defeated on the ground that the complainant may avail of the procedure prescribed in Chapter XV of the Code.
13. Thereafter the narrative in Jagannath Verma (supra) turned to the all important issue of a right of prospective accused person to be heard after a revision is filed against a rejection of an application under section 156 (3) Cr.P.C. The right of opportunity of hearing of an accused person was upheld by holding as under:
48. "Now it is in this background, that we deal with the next issue in the present reference which is, whether in a revision under Section 397 filed against the rejection of an application under Section 156 (3) for the registration of a case and for investigation, the prospective accused has a right to be heard. While considering this question, it would be appropriate to refer to some of the leading decisions of the Supreme Court which have a bearing on the issue. In P Sundarrajan Vs R Vidhya Sekar20, a Bench of two learned Judges considered a situation where a complaint under Section 420 IPC had been dismissed by the judicial magistrate. Against the dismissal of the complaint, the complainant preferred a revision before the High Court. Holding that no notice to the suspects for the disposal of the revision was necessary, the High Court set aside the order of the magistrate and directed him to proceed afresh in accordance with law. The Supreme Court granted leave in a Special Leave Petition under Article 136 and while setting aside the order of the High Court, remanded the proceedings with a direction to issue proper notice to the persons accused of the crime in the complaint and to proceed after affording them a reasonable opportunity of being heard. The Supreme Court held that the order of the High Court was "ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case" and 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"21.
49. In Raghu Raj Singh Rousha (supra), the first respondent filed a complaint before the Additional Chief Metropolitan Magistrate under Section 200 in respect of offences punishable under Sections 323, 382, 420, 465, 468, 471, 120-B, 506 and 34 IPC together with an application under Section 156(3). The Metropolitan Magistrate declined to direct an investigation by the Station House Officer under Section 156 (3) and dismissed the application. However, the Magistrate held that the complaint can be conveniently dealt with under Section 200 and, if necessary, the assistance of the police could be taken under Section 202. The complainant was called upon to lead pre-summoning evidence and to furnish the list of witnesses. The first respondent filed a revision impleading only the State as a party. The High Court, on hearing counsel for the parties, noted that it was agreed that the order of the Metropolitan Magistrate be set aside with a direction to examine the matter afresh after calling for a report from the police. The police was directed to hold a preliminary enquiry on the basis of the complaint and to submit a report to the magistrate. The Supreme Court held 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."
The judgment of the High Court was set aside with a direction to implead the appellant as a party in the criminal revision and to hear the proceedings afresh. The decision in Raghu Raj Singh Rousha (supra) dealt with a situation where, as the Supreme Court noted, the magistrate had taken cognizance, and had applied his mind while, at the same time, refusing to exercise his jurisdiction under Section 156 (3).
50. In a subsequent decision in A N Santhanam Vs K Elangovan22, a Bench of two learned Judges of the Supreme Court considered whether the High Court had committed an error in disposing of a criminal revision petition filed by the complainant without notice to the accused. Relying upon the provisions of Section 401 (2) of the Code, the Supreme Court observed that the High Court in the exercise of its revisional power cannot pass any order which may cause prejudice to the accused or to other persons unless an opportunity of being heard is granted. While setting aside the decision of the High Court, the Supreme Court restored the criminal revision for disposal afresh after notice to the appellant. In that context, the Supreme Court observed as follows:
"In the instant case it cannot be said that the rights of the appellant have not been affected by the order of revision. The complaint filed by the respondent which was rejected for whatsoever reasons has been resurrected with a direction to the Magistrate to proceed with the complaint. Undoubtedly, whether the appellant herein was an accused or not but his right has been affected and the impugned order has resulted in causing prejudice to him."
51. The earlier decisions and the provisions of Section 401 (2) of the Code came up for consideration before a Bench of three learned Judges of the Supreme Court in Manharibhai Muljibhai Kakadia Vs Shaileshbhai Mohanbhai Patel23. Before we analyze the decision, it would be necessary to advert to the provisions of sub-sections (1) and (2) of Section 401 of the Code:
"401. High Court's powers of revisions. (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."
52. Sub-section (1) of Section 401 deals with the power of the High Court in revision and stipulates that where the record of a proceeding has been called for by the High Court or comes to its knowledge, it may, in its discretion, exercise any of the powers, inter-alia, conferred on a Court of Session by Section 307 or on a Court of Appeal by Sections 386, 389, 390 and 391. Sub-section (2) of Section 401 stipulates that no order under the section shall be made to the prejudice of the accused "or other person" unless an opportunity of being heard has been furnished.
53. In Manharibhai Muljibhai Kakadia Vs Shaileshbhai Mohanbhai Patel (supra), the first respondent filed a criminal complaint in the court of the Chief Judicial Magistrate against the appellants alleging that they had entered into a conspiracy and had created forged documents in the name of the complainant and his relatives and had used them as genuine documents before the District Registrar of Cooperative societies and by making false representations, thereby causing a financial loss. The appellants were alleged to have committed offences punishable under Sections 420, 467, 468, 471 and 120-B IPC. The Chief Judicial Magistrate, in exercise of the power under Section 202 of the Code, directed an enquiry to be made by the police Inspector. The Investigating Officer, upon investigation, submitted a C Summary Report stating that the dispute was of a civil nature and no offence was made out. The Chief Judicial Magistrate accepted the report of the Investigating Officer. That order was challenged by the complainant in a criminal revision under Section 397. The appellants made an application for joining them as respondents and to be heard but the learned Single Judge of the High Court dismissed the application. The Supreme Court granted leave in petitions under Article 136 of the Constitution and disposed of the appeals by its decision. The Supreme Court observed that under Section 202, the magistrate may himself hold an enquiry or direct an investigation by a police officer. The dismissal of the complaint under Section 203 is at the stage of pre-issuance of process. The Code does not permit an accused person to intervene at the stage of inquiry by the Magistrate under Section 202. The Supreme Court formulated the issue as whether, when a complaint has been dismissed by the magistrate under Section 203 at the post-cognizance stage and pre-issuance of process, on a challenge to the legality of the order of dismissal of a complaint being laid by the complainant in a revision before the High Court, persons who are arraigned as accused had a right to be heard. The Supreme Court observed as follows:
"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, upto 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."
54. The Supreme Court noted, in the course of the decision, that three expressions which have been used in Section 401 (2) are significant, namely (i) "prejudice"; (ii) "other person"; and (iii) "in his own defence". It was held that the expression "other person" in the context of Section 401 (2) means a person other than the accused and includes suspects or persons alleged in the complaint to have been involved in the offence, although they may not be termed as accused at a stage before the issuance of process. The expression "in his own defence" was held to comprehend for the purposes of Section 401 (2), in defence of the order which is under challenge in the revision before the Sessions Judge or the High Court. The principle of law which has been formulated by the Supreme Court is as follows:
"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 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 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 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." (emphasis supplied) Expressing its agreement with the principles which were formulated in the earlier decisions in P Sundarrajan, Raghu Raj Singh Rousha, and A N Santhanam, the Supreme Court held thus:
"... 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."
55. The decision of the Supreme Court in Manharibhai Muljibhai Kakadia holds that where a complaint is dismissed under Section 203, the accused or a person who is suspected to have committed the crime is entitled to a hearing before the revisional court. This has been held to be a consequence of the requirement in Section 401 (2) that no order under sub-section (1) shall be made to the prejudice of the accused or other persons unless he has had an opportunity of being heard in his own defence. The stage, whether it be pre-process or post-process has been held not to matter. The issue has been looked at from two perspectives. Firstly, the dismissal of a complaint by a magistrate under Section 203 results in a termination of the proceedings in a complaint against a person who is alleged to have committed the crime. Once a challenge is made to such an order at the instance of the complainant, the suspects get a right of hearing before the revisional court, although such an order was passed in the first instance by the magistrate without their participation. The right to be heard is one which emanates from Section 401 (2). Secondly, if the revisional court overturns the order of the magistrate dismissing the complaint and the complaint is restored to the file of the magistrate for fresh consideration, the persons who are alleged in the complaint to have committed the crime have no right to participate in the proceedings before the magistrate until the consideration of the matter by the magistrate for issuance of process. The fact that the persons who are suspected of having committed the crime have not been heard when the original order of dismissal has been passed under Section 203 and will not be heard upon the restoration of the proceedings following the allowing of the revision, has been held not to affect their right to be heard in the revision under Section 397 (2).
56. As we have noted earlier, once an application has been filed before the magistrate upon the refusal of the police to investigate under Section 156 (1), the Supreme Court has observed that the magistrate has an option of either proceeding under Section 156 (3) or under Section 200. If the magistrate were to proceed under Section 200 and the complaint is dismissed under Section 203, whether pre- or post-process, the persons who are suspected of having committed the crime have been held to be entitled to be heard in a revision by the complainant under Section 397 against the order of rejection. That being the position, there is no reason or justification to exclude an opportunity of being heard to the persons suspected of having committed the crime when a revision is filed under Section 397 against the rejection of an application under Section 156 (3) for the registration of a case involving a cognizable offence and for investigation by the police. The provisions of Section 401 (2) have been held to require a hearing to a person suspected of having committed a crime when a criminal revision is laid against an order of dismissal of the complaint under Section 203, irrespective of the stage at which the complaint had been dismissed. Equally, there would be no justification to exclude the right of a hearing for, to use the language of Section 401 (2), a hearing has to be afforded to the accused or other person and no order can be made to his prejudice unless he has an opportunity of being heard in his own defence.
57. The decision in Manharibhai Muljibhai Kakadia has been followed in a subsequent judgment of the Supreme Court in Mohit alias Sonu Vs State of Uttar Pradesh24. In that case, an order passed by the Additional Sessions Judge rejecting an application moved by the complainant under Section 319 of the Code was set aside by the High Court and the trial Court was directed to examine the accused-appellants. The accused were named in an FIR of having committed offences under Sections 147, 323, 504, 506 and 304 IPC. The Investigating Officer submitted a charge sheet against five accused leaving out the names of two accused who were the appellants before the Supreme Court. After the committal of the case for trial, the complainant in his examination-in-chief specifically stated the role of the appellants and moved an application under Section 319 for summoning them. The trial Court disposed of the application on the ground that the cross-examination had been not completed. This Court found no error in the order passed by the trial Court which had simply postponed the issue pending the cross-examination of the witnesses. A second application under Section 319 was thereafter rejected by the trial court, against which an application under Section 482 was allowed by this Court. This Court held that the trial Court was in error in rejecting the application for summoning the appellants and directed the trial Court to summon them under Section 319. The Supreme Court observed as follows:
"25. In the light of the ratio laid down by this Court referred to herein above, we are of the considered opinion that the order passed by the trial court refusing to issue summons on the application filed by the complainant under Section 319 of CrPC cannot be held to be an interlocutory order within the meaning of sub-section (2) of Section 397 of CrPC. Admittedly, in the instant case, before the trial court the complainant's application under Section 319 of CrPC was rejected for the second time holding that there was no sufficient evidence against the appellants to proceed against them by issuing summons. The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. As held by this Court in Amar Nath's case, an order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) of CrPC.
26. In the instant case as noticed above, when the complainant's application under Section 319 of CrPC was rejected for the second time, he moved the High Court challenging the said order under Section 482 of CrPC on the ground that the Sessions Court had not correctly appreciated the facts of the case and the evidence brought on record. The complainant wanted the High Court to set aside the order after holding that the evidence brought on record is sufficient for coming to the conclusion that the appellants were also involved in the commission of the offence.
27. In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section 397 of CrPC and not by invoking inherent jurisdiction of the High Court under Section 482 of CrPC Maybe, in order to circumvent the provisions contained in sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 CrPC. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 of CrPC, the High Court before passing the order would have given notice and opportunity of hearing to the appellants."
The conclusion which was arrived at was as follows:
"34. Indisputably, a valuable right accrued to the appellants by reason of the order passed by the Sessions Court refusing to issue summons on the ground that no prima facie case has been made out on the basis of evidence brought on record. As discussed herein above, when the Sessions Court order has been challenged, then it was incumbent upon the revisional court to give notice and opportunity of hearing as contemplated under sub-section (2) of Section 401 of CrPC. In our considered opinion, there is no reason why the same principle should not be applied in a case where such orders are challenged in the High Court under Section 482 of CrPC."
The appeal was, accordingly, allowed and the proceedings were remitted back to the High Court for a decision afresh after furnishing an opportunity of being heard to the appellants. The principle underlying Section 401 (2) has been extended by the Supreme Court also to a proceeding under Section 482.
58. The test as to whether a person is entitled to an opportunity of being heard in a challenge to an order passed in an original proceeding by another is not dependant necessarily on whether such a person had a right to be heard in the original proceeding. A person who is entitled to be heard in an original proceeding may legitimately assert a right to be heard when a substantive right created by an order passed in that proceeding is sought to be assailed before a higher forum at the behest of another person. But a right to be heard in revision is not excluded because a person who claims such a right was not entitled to be heard before the original order, which is assailed, was passed in the first instance or merely because a right of a hearing will not be available in the original proceedings on remand. The entitlement of a hearing at a particular stage has to be assessed independently, by considering the consequences of the proceeding in which a hearing is sought. Where a substantial right will be affected, a prejudice is likely to result or a result which has enured to the benefit of a person is sought to be negated, a hearing can legitimately be claimed when the order is assailed in a higher forum. Natural justice in our jurisprudence is not merely a matter of statutory entitlement but is an emanation or recognition of the constitutional right to fair procedure, fair treatment and objective decision making. Hence, a prospective accused is entitled to be heard in revision under Section 397 when an order rejecting an application under Section 156 (3) is assailed. For, such a person would have a legitimate entitlement to defend the order as having been correctly made. The fact that in the event of a remand by the revisional court to the Magistrate, for fresh consideration of an application under Section 156 (3), such a person has no right of a hearing does not preclude a right of a hearing in revision when the original order rejecting an application under Section 156 (3) is assailed."
14. Finally the following conclusions were recorded by the learned Full Bench;
"(ii) An order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397; and
(iii) In proceedings in revision under Section 397, the prospective accused or, as the case may be, the person who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the criminal revision."
15. Before parting it is pertinent to consider the law laid down by the learned Single Judge in Ashok Kumar Pathak Vs State of U.P. and another in Application U/S 482 No. 43271 of 2018 on 30.11.2018 and relied upon by the learned counsel for the applicant. The reliance on the judgment rendered by the learned Single Judge in Ashok Kumar Pathak Vs State of U.P., by the applicant is misconceived. The case is clearly distinguishable on facts of the case. The issue of maintainability of the revision and the rights of the perspective accused were not in consideration before the learned Single Judge in Ashok Kumar Pathak Vs State of U.P. and another (supra). Further the judgment did not have the benefit of the law laid down by the Full Bench in Jagannath Verma (supra) as apparently it was not brought to the notice of the Court. I was almost led into error till the judgment of the Full Bench was brought to my attention.
16. In the light of the law laid down by the Full Bench of this Court in Jagannath Verma (supra), I find that the impugned order is revisable in nature. The appropriate remedy against the impugned order available to the applicant is to file a revision under Section 397 Cr.P.C. instead of approaching this Court in its extraordinary jurisdiction by commencing an application under section 482 Cr.P.C. The prospective accused in the case is entitled to be heard.
17. In the wake of the preceding narrative, I find that the law laid down by the Full Bench in Jagannath Verma (supra) is fully applicable to the facts of this case. Judicial discipline prohibits me from entering into the merits of the case made by learned counsel for the applicant.
18. The application under section 482 Cr.P.C. is accordingly dismissed on the ground of existence of alternative remedy of filing a revision under section 397 Cr.P.C. available to the applicant.
Office is directed to return the certified copy of the impugned order to the applicant.
Order Date :- 08.01.2021 Pravin