Back
2019 Supreme(Pat) 551
IN THE HIGH COURT OF JUDICATURE AT PATNA
BIRENDRA KUMAR, J.
Roshan Kumar Yadav, son of Ram Narayan Yadav - Petitioners
Versus
The State of Bihar & Ors. - Opposite Partys
Criminal Miscellaneous No.22498, 52489 of 2016
Decided On : 18-07-2019
For the Petitioner:Mrs. Shama Sinha, Advocate
For the Opposite Partys :Mr. Jagarnath Singh, Advocate, Mr. Rakesh Kumar, Advocate, Mr. Rajindra Narain, Sr. Advocate, Mr. Kr. Virendra Narayan, APP
Headnote:
Revisional Court - Criminal Procedure - Indian Penal Code - Sections 406, 409, 420, 120(B), 467 and 468 - The court discussed the provisions of Section 398 Cr.P.C. and the right of the accused to be heard in a revision application preferred by the complainant against the order of dismissal of the complaint. The court also highlighted the legal position that the accused or suspects are not entitled to be heard on the question of whether the process should be issued against them until the issuance of process under Section 204. The judgment of the Hon’ble Supreme Court in the case of Manharibahi Muljibhai Kakadia & Anr. vs. Shaileshbai Mohanbhai Patel & Ors. was referred to in order to establish the right of the accused to be heard in a revision petition before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code.
Fact of the Case:
The petitioners were put in the column of accused in Complaint Case No. 217 of 2014. The complaint petition was dismissed by the learned Sub-Divisional Judicial Magistrate, Biraul, and the dismissal was challenged by the complainant before the learned Sessions Judge, Benipur. The learned Sessions Judge set aside the order of dismissal and directed the learned court below to take cognizance for offences prima facie made out under Sections 406, 409, 420, 120(B), 467 and 468 of the Indian Penal Code.
Finding of the Court:
The court found that the order of the revisional court was not sustainable in law as it was passed without giving the accused an opportunity of being heard, and the subsequent order of cognizance dated 28.01.2016 also stood vitiated. The matter was remitted back to the court of learned Sub-Divisional Judicial Magistrate/Judicial Magistrate, Biraul, to enter into fresh inquiry and pass fresh order in accordance with law, giving opportunity of hearing to the accused.
Issues: The issues included the right of the accused to be heard in a revision application preferred by the complainant against the order of dismissal of the complaint, and the validity of the subsequent order of cognizance dated 28.01.2016.
Ratio Decidendi: The court held that the accused or suspects are not entitled to be heard on the question of whether the process should be issued against them until the issuance of process under Section 204, but they have the right to be heard in a revision petition before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code.
Final Decision: The order of the revisional court as well as the order of cognizance dated 28.01.2016 were quashed, and the matter was remitted back to the court of learned Sub-Divisional Judicial Magistrate/Judicial Magistrate, Biraul, to enter into fresh inquiry and pass fresh order in accordance with law, giving opportunity of hearing to the accused.
JUDGMENT :
Heard learned counsel for the parties.
2. The petitioners along with others were put in the column of accused in Complaint Case No. 217 of 2014. By order dated 23.04.2015, the complaint petition was dismissed by the learned Sub-Divisional Judicial Magistrate, Biraul. The dismissal was challenged by the complainant (opposite party no. 2 herein)- Deo Shankar Singh before the learned Sessions Judge, Benipur in Cr. Revision No. 54 of 2015. By the impugned order dated 08.07.2015, the learned Sessions Judge set aside the order of dismissal of complaint and directed the learned court below to take cognizance for offences prima facie made out. According to the opinion of the learned Sessions Judge offences under Sections 406, 409, 420, 120(B), 467 and 468 of the Indian Penal Code were prima facie there. Thereafter, the learned Sub-Divisional Judicial Magistrate, Biraul took cognizance for the referred offences by the impugned order dated 28.01.2016.
3. Both the orders have been challenged in both the criminal miscellaneous applications aforesaid by different accused persons.
4. The order of the revisional court has been challenged on the ground that the petitioners were not noticed while the learned Sessions Judge passed the impugned order in the criminal revision aforesaid, whereas it is well settled principle of law that though the accused has no right to participate in the inquiry under Section 202 Cr.P.C. However, once the complaint petition was dismissed, a right accrued in favour of the accused that whenever dismissal is interfered with by any superior court, the accused must have opportunity of hearing. Reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of Manharibahi Muljibhai Kakadia & Anr. vs. Shaileshbai Mohanbhai Patel & Ors. reported in 2013(2) PLJR (SC) 22.
5. The order of the revisional court has been challenged on the ground that Section 398 Cr.P.C. empowers the revisional court to direct the Magistrate subordinate to it to make further inquiry into the complaint and in this case, the revisional court sat over the matter as a Magistrate and disclosed its mind as to under which provision cognizance of the offences was to be taken.
6. Submission is that since order of the revisional court is itself bad in law, the subsequent order of cognizance dated 28.01.2016 in pursuance of the revisional courts’ order is also not sustainable in law.
7. The complainant opposite party no. 2 appeared in Cr. Misc. No. 22498 of 2016, however, no notice was sent to the complainant separately in Cr. Misc. No. 52489 of 2016 as this Court by order dated 03.07.2019 passed in Cr. Misc. No. 22498 of 2016 directed listing of Cr. Misc. No. 52489 of 2016 along with the aforesaid criminal miscellaneous for the reason that the same orders were challenged by the accused persons of the same case separately, in the above applications under Section 482 Cr.P.C.
8. Learned counsel for the opposite party no. 2 submits that the accused has no right of hearing, during inquiry, under Section 202 Cr.P.C., and the complaint was dismissed after inquiry. Therefore, there was no opportunity for hearing of the accused before the learned Sessions Judge because no right had accrued to them. Only the complainant was aggrieved by the impugned order. He further submits that the impugned order dated 28.01.2016 was challenged by co-accused Ram Narayan Yadav before the learned Sessions Judge, Darbhanga in Cr. Revision No. 117 of 2016 and the learned Sessions Judge dismissed the criminal revision aforesaid against order of cognizance dated 28.01.2016 passed in the referred Complaint Case No. 217 of 2014.
9. It is evident that the learned Sessions Judge passed order dated 08.07.2015 in Cr. Revision No. 54 of 2015 without notice to the petitioners, who were arrayed as opposite party nos. 2 to 6 in the criminal revision. Sub-section 2 of Section 401 Cr.P.C. requires that no order under this section shall be made to the prejudice of the accused o
