IMPORTANT POINT
The accused has a right to be heard u/s 401 CrPC which cannot be denied.

JUDGMENT

C. NAGAPPAN, J.

1. Leave granted.

2. This appeal is preferred against the impugned order dated 18.4.2011 passed by the High Court of Judicature at Patna in Criminal Appeal No. 830 of 2009 whereby the High Court allowed the Criminal Revision filed by the respondent No.1 herein.

3. The facts necessary for the disposal of the present appeal are stated as follows: The father of the respondent No.1 herein filed a complaint on 24.5.2003 against five accused persons alleging therein that they had committed murder of son of the complainant by name Anil Paswan by administering poison. A case was registered in First Information Report No.96 of 2003 on the file of Chowk Police Station, Patna City, on 28.5.2003 against 5 accused persons for the alleged offences under Section 328/302/34 IPC. During investigation, the complainant filed a protest-cum-complaint petition on 7.6.2003 which was kept on record.

The investigation officer submitted the final report in the case on 31.5.2008 against accused No.1 Sunita Devi alone under Section 328/302 IPC for the murder of Anil Paswan. The Addl. Chief Judicial Magistrate, Patna City, perused the charge-sheet and the case diary as well as the protest-cum-complaint petition dated 7.6.2003 and took cognizance for the offences under Section 328/302 IPC against accused No.1 Sunita Devi and discharged accused Nos. 2 to 5 in the First Information Report from the case and rejected the protest-cum- complaint petition filed by the complainant by his order dated 4.3.2009.

Aggrieved by the rejection of the protest-cum-complaint petition Sunil Paswan, the son of complainant late Harinandan Paswan filed revision petition in Criminal Revision No.830 of 2009 on the file of the High Court of Judicature at Patna under Section 397 and 401 of the Code of Criminal Procedure. The High Court after hearing the revision petitioner and the respondent State set aside the order dated 4.3.2009 passed by Addl. Chief Judicial Magistrate, Patna City and remanded the matter to the court below for proceeding in accordance with law treating the protest-cum-complaint petition as a complaint. Accused No.4 mentioned in the First Information Report Bal Manohar Jalan has challenged the said order of the High Court in this appeal.

4. This Court issued notice in the matter on 1.8.2011 besides granting stay of the impugned order. Respondent No.1 herein namely, the revision petitioner before the High Court, though served did not choose to appear either in person or through counsel before this Court and that necessitated us to appoint Mr. S.B. Upadhyay, Senior Advocate as Amicus Curiae for respondent No.1 to assist the Court, by order dated 7.4.2014 and both sides were heard on 2.5.2014.

5. The main contention of the learned counsel for the appellant is that though Section 401(2) of the Criminal Procedure Code stipulated that no order in exercise of the power to revision shall be made by the High Court to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his own defence, the High Court in criminal revision did not issue notice to the appellant herein who is accused No.4 in the First Information Report and without providing an opportunity to him has exercised jurisdiction under Section 401 by directing to proceed in accordance with law treating the protest petition as the complaint, to the prejudice of the appellant herein and hence the impugned order of the High Court is liable to be set aside. In support of his submission he relied on the decision of this Court in Manharibhai Muljibhai Kakadia and another vs. Shaileshbhai Mohanbhai Patel and others [(2012) 10 SCC 517]. We also heard the learned amicus curiae on the submissions made by the learned counsel for the appellant.

6. Admittedly the appellant herein is mentioned as accused No.4 in First Information Report No.96 of 2003 dated 28.5.2003. The father of respondent No.1 herein, while alive filed a protest-cum-complaint petition dated