ORDER :

Leave granted.

Pursuant to petition dated 01.04.2008 filed by the complainant under Section 156(3) of Code of Criminal Procedure (for short 'CrPC), appropriate directions were issued by the Judicial Magistrate and crime was registered against the present appellant, for having committed offence under Section 376 of the Indian Penal Code (for short 'the Code').In the investigation that ensued thereafter, a final report under Section 173(8) of CrPC was filed by the investigating officer on 30.06.2008 stating inter alia that the allegations made by the complainant were found to be false. In the circumstances, the complainant preferred a protest petition, which was treated as Complaint Case No.1439 of 2008 and the same was transferred to the Court of Judicial Magistrate, 1st Class, Giridih.

2. The complainant had filed list of witnesses, which he proposed to be examined in trial. It reflects from the record that pre-summoning evidence was recorded by the Magistrate, who thereafter dismissed the complaint holding that there were material contradictions in the statements of witnesses and that the case appeared to be a false case.

3. This order of the Magistrate was challenged by the complainant by preferring Criminal Revision No. 98 of 2010 before the Additional Sessions Judge, Giridih. The revision was accepted and the order passed by the Magistrate was set aside and the Magistrate was directed to conduct further inquiry and to record a fresh order on the basis of the material available on record. In the revision application, the accused was not made a party and the order of the revisional court was passed without even hearing the accused. This order, in a further challenge, has been sustained by the High Court, which is presently under challenge before us.

4. Law on the point stands settled by a judgment of three-Judge Bench of this Court in the case of Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors., (2012) 10 SCC 517. Relevant paras 46, 48 and 53 of the same are quoted hereunder:

"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 matter 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 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.

xxx xxx xxx

48. 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,