1. Complaint under SC/ST Act dismissed by Magistrate; High Court in revision set aside dismissal without notice to accused. (Para 1 , 2 )
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2011 Supreme(SC) 1544
SUPREME COURT OF INDIA
B. Sudershan Reddy, Surinder Singh Nijjar, JJ.
A.N. Santhanam - Appellant
Vs.
K. Elangovan - Respondent
Criminal Appeal No(s). 12 Of 2005
Decided On : 15-02-2011
Advocates Appeared:
For the Appellants : Mr. R. Anand Padmanabhan, Adv. Mr. Prithvi Raj B.N., Adv. Mr. Plato Aristotle, Adv. Mr. Pramod Dayal,Adv.
For the Respondents: Mr. G. Sivabalamurugan, adv. Mr. Anis Mohd., Adv. Mr. L.K. Pandey,Adv.
For the Appellants : Mr. R. Anand Padmanabhan, Adv. Mr. Prithvi Raj B.N., Adv. Mr. Plato Aristotle, Adv. Mr. Pramod Dayal,Adv.
For the Respondents: Mr. G. Sivabalamurugan, adv. Mr. Anis Mohd., Adv. Mr. L.K. Pandey,Adv.
Under Section 401(2) of the Code of Criminal Procedure, 1973, a High Court cannot pass any order in revision that prejudices the accused or another person without providing them an opportunity to be heard personally or through a pleader.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 401(2) - High Court’s powers of revision - Order causing prejudice to the accused - Mandatory requirement of opportunity of being heard - A plain reading of Clause (2) makes it clear that the High Court in exercise of its revisional power cannot pass any order which may 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. (Paras 7, 8)
Facts of the case:
A complaint was filed against the appellant for an offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. After recording statements of the complainant and witnesses, the Magistrate dismissed the complaint. The respondent filed a Criminal Revision before the High Court, which subsequently set aside the Magistrate's order and directed the complaint to proceed. However, the High Court disposed of the revision without issuing any notice to the appellant.
Findings of Court:
The court found that the High Court committed an error in allowing the revision without notice to the appellant. Since the dismissed complaint was resurrected and the direction to proceed was given, the appellant's rights were affected and the order resulted in causing prejudice to him.
Issues: Whether the High Court could legally pass an order in a criminal revision that prejudices the accused without providing the accused a notice or an opportunity to be heard.
Ratio Decidendi: The court held that under Section 401(2) of the Code of Criminal Procedure, 1973, no order under the revisional jurisdiction of the High Court shall be made to the prejudice of the accused or other person unless they have had an opportunity of being heard either personally or by a pleader in their own defence.
Result: Impugned order set aside and the Criminal Revision Case restored for hearing and disposal on merits after notice to the appellant.
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2. Appellant argued no notice was error; respondent contended no notice required at cognizance stage. (Para 4 , 5 )
3. High Court under Section 401(2) CrPC cannot pass prejudicial order without hearing; cited precedent inapplicable. (Para 6 , 7 , 8 , 9 , 10 )
4. Under Section 401(2) CrPC, no order prejudicial to accused can be made without affording opportunity of hearing. (Para 8 , 9 , 10 )
5. Impugned order set aside; revision restored to file for hearing on merits after notice to appellant. (Para 11 , 13 )
6. Is notice to accused required under Section 401(2) CrPC before setting aside dismissal of complaint in revision?
Yes. Section 401(2) prohibits the High Court from passing any order prejudicial to the accused without affording an opportunity of being heard. (Para 8 , 9 )
7. Does the precedent in Raghu Raj Singh Rousha apply when complaint was dismissed by Magistrate?
No. That precedent applied where cognizance was already taken, not where complaint was dismissed. It does not apply here. (Para 10 )
8. What is the consequence of High Court allowing revision without notice to accused?
The order prejudicially affects the accused by resurrecting a dismissed complaint, violating Section 401(2) CrPC. (Para 9 , 10 )
ORDER :
1. The respondent in this appeal filed complaint against the appellant herein for the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The learned Judicial Magistrate, Tambaram dismissed the complaint after recording the statement of the complainant and as well as five witnesses.
2. Being aggrieved by the dismissal of the complaint, the respondent herein had filed Criminal Revision Case No. 1045 of 2003 in the High Court of Madras. The High Court, upon appreciation of material available on record, found that the complaint filed by the respondent and the statements of the witnesses clearly make out a case against the appellant for the offence punishable under Section 3(1)(x) of the said Act and accordingly, allowed the revision duly setting aside the order passed by the Magistrate dismissing the complaint.
3. Be it noted, the Criminal Revision Case filed by the respondent was heard and disposed of without any notice whatsoever to the appellant.
4. Learned counsel for the appellant raised a short question that the High Court committed an error in disposing of the Criminal Revision without any notice to the appellant. Admittedly, no notice has been issued to the appellant before disposing of the Criminal Revision filed by the complainant-respondent.
5. On the other hand, learned counsel for the respondent relying on judgment of this Court in Raghu Raj Singh Rousha versus Shivam Sundaram Promoters Pvt. Ltd. and Anr. reported in 2009 (2) SCC 363 submitted that no notice as such was required to be issued to the appellant herein since it was at the stage of taking cognizance.
6. We have considered the submissions made by the learned counsel appearing for the respective parties.
7. Section 401 of the Code of Criminal Procedure, 1973 which deals with the High Court’s power of revision reads as under :-
"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 discreti 401. High Court’s powers of revision.-(1) In the case of any proceeding the record of which has been called for bon, 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.
(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."
8. 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 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.
9. 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
