Back
2021 Supreme(Del) 469
IN THE HIGH COURT OF DELHI AT NEW DELHI
YOGESH KHANNA, J.
Vipul Gupta and S.P. Gupta - Petitioner
Versus
State & Anr. - Respondents
Crl. M.C. No.1163 of 2021 & Crl. M.A. No.5948 of 2021; and Crl. M.C. No.1186 of 2021, Crl. M.A. No.6061 and 6251 of 2021
Decided On : 06-08-2021
For the Petitioner:Mr. Sandeep Sethi, Senior Advocate with Mr. Vijay Kumar Aggarwal, Mr. Ashul Aggarwal, Mr. Hardik Sharma, Mr. Shekhar Pathak, and Mr. Parth Parashar, Advocates.
For the Respondents:Mr. M.S. Oberoi, A.P.P., Mr. Dayan Krishnan, Mr. Mohit Mathur, and Mr. Sidharth Aggarwal, Senior Advocates with Mr. Narender Mann, Mr. P.S. Singhal, Mr. Ashok Kumar Sharma and Mr. Jai Allagh, Advocates.
Point of Law: High Court's Powers of revisions - Scope of revisional jurisdiction of High Court as we have discussed earlier clearly indicates that High Court is only expected to see legality, correctness or propriety of order, which is an order of issue of process, these things could only be seen by looking into the complaint and accompanying papers and evidence if any which were before court below.
Headnote:
Criminal Procedure Code, 1973 - Section 401(2), 401 (2) and 403 - Qua locus standi - Power of revision - Suo moto power of correction and supervision over subordinate Court - Option of Court to hear parties - Grievance of counsel for petitioners vide impugned order learned Revisional Court had directed petitioner herein to file an amended memo of parties by impleading complainant defacto as respondent No.2, whereas complainant has no role to play before learned Revisional Court and its only Public Prosecutor for State, who has to take realm of case before learned Session’s Court. It is argued per sub-section 2 to Section 401 Cr P C no order shall be passed to prejudice of accused or other person unless he has an liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to accused and it does not include the complainant and hence the learned Revisional Court erred to make complainant defacto as respondent No.2.
Finding of the Court: A bare perusal of Section 401(2) Cr P C would show other person must be akin to an accused who can participate in the proceedings. The phrase in his own defence in clause 2 of Section 401 Cr P C strengthens this belief. Complainant is never heard in his defence and hence word “other person” referred to in Section 401 Cr P C is a person akin or similarly placed to an accused. Section 403 Cr P C is also to be read in consonance with Section 401 Cr P C as it starts with word 'otherwise expressly provided by this Code' - as is seen above “other person” does not include a complainant in revision. This is a State prosecution and at highest complainant can be a witness to proceedings and can participate through learned APP for Sate but cannot be a party to revision petition. Court agree with petitioner if we allow complainant to participate before Session’s it shall change entire nature of proceedings from criminal to civil and hence shall hamper independence of prosecution. Complainant can at best assist the prosecution, though prosecution in such a case has to make an independent call.
Result: Petition(s) stand disposed of.
JUDGMENT :
Yogesh Khanna, J.
(Through Video Conferencing)
1. These petitions are filed to assail an impugned order dated 05.04.2021 passed in Crl. Revision No.77/2021 (Crl. M.C. No.1163/2021) and Crl. Revision No.76/2021 (Crl. M.C. No.1186/2021) by the learned Principal District and Sessions Judge (HQs), Delhi (hereinafter referred to as the Revisional Court), against the orders dated 01.02.2021, 22.02.2021 and 06.03.2021 passed by the learned Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi in case State vs. S.P. Gupta & Others.
2. It is the grievance of the learned senior counsel for the petitioners vide the impugned order the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2, whereas the complainant has no role to play before learned Revisional Court and its only the learned Public Prosecutor for the State, who has to take realm of the case before learned Session’s Court. It is argued per sub-section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has an liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2.
3. The main issue thus raised is qua locus standi. It is argued by respondents the power of revision, admittedly, is a suo moto power of correction and supervision over the subordinate Courts; to call for the records and to correct orders. One can say it is discretion of the revisional Court to hear any one whom it needs to hear. It is argued Cr P C when amended in 2009, victim was given right to have a say in criminal proceedings. The question is if such right can be extended to revisions before the learned Session’s Court. Reference was made to Pandharinath Tukaram Raut vs. Manohar Sadashiv Thorve, MANU/MH/1823/2014 wherein the Court held:-
7. Before going further, the issue regarding the maintainability of the Criminal Revision Application, as raised by Mr. Bhushan Deshmukh, the learned Counsel for the Respondent Nos. 1, 2, 5 and 9, be dealt with. Mr. Deshmukh placed reliance on the decision of the Supreme Court of India in the case of Subramanian Swamy and Ors. V/s. Raju, Through Member, Juvenile Justice Board and Anr., reported in MANU/SC/0849/2013 : (2013) 10 SCC 465, to support his contention that in a prosecution initiated by the State, a third party / stranger would not have any right to participate. I have gone through the said reported judgment and I am unable to hold that this judgment lays down a proposition that in a prosecution initiated by the State, a private party has no right to challenge the order passed in the course of said prosecution by filing an application for revision. Moreover, in this case, the Applicants are the victims of the alleged offences and by no stretch of imagination can be said to be 'strangers' to the proceedings. Mr. Deshmukh also placed reliance on a decision rendered by a learned Single Judge of the Karnataka High Court in the case of M/s. Kerala Transport Co. Vs. D.S. Soma Shekar and Ors., reported in MANU/KA/0027/1981 : 1982 Cri.L.J. 1065, in support of his contention that the First Informant has no locus standi to file a revision in a prosecution initiated by the State. Indeed, it appears that, the observations made by the learned Single Judge support the contention advanced by Mr. Deshmukh, but, with respect, I am unable to agree with the view expressed by the learned Judge in the said judgment. It is clear from the scheme of the relevant provisions that the revisional power belongs basically to the Court. The Court can call for the record and proceedings even 'suomotu' and revise the order. When the court has been given powers to revise an order 'suo-motu', it would be rather futile to rais
