Accused individuals in a criminal revision challenging a dismissal of a complaint under Section 203 entitled to a hearing as per Section 401(2) of the Criminal Procedure Code.

ORDER :

J. C. DOSHI, J.

1. Heard learned advocate Mr. Nandish H. Thackar appearing for the petitioners. Respondent No.2 though served initially was represented by learned senior advocate Mr. H. S. Tolia, however, later on he withdrew his representation, therefore, a fresh notice was issued to Respondent No.2 and he did not choose to remain present and to contest the present application. I have also heard learned APP Mr. Chintan Dave.

2. Essentially, this petition under Section 226 and 227 of Constitution of India read with Section 482 of Code of Criminal Procedure questions the legality and propriety of Judgment and Order passed in Criminal Revision No. 24 of 2017 by the Principal District and Sessions Judge, Veraval, whereby the learned Sessions Judge quash and set aside the order passed by the Judicial Magistrate First Class, Talala in Criminal Inquiry No.3 of 2016 and remanded the matter to the trial Court for fresh hearing. In Criminal Inquiry No.3 of 2016, the learned JMFC has refused to issue process in a private complaint filed for the offence punishable under Section 406 , 420, 465, 467, 468, 547, 219, 114 and 120(b) of the INDIAN PENAL CODE .

3. Learned advocate Mr. Nandish H. Thackar made twofold submissions. Firstly, he submits that the learned Sessions Court has committed serious mistake and gross error in allowing the revision, ignoring the provision of Section 401(2) of the Code of Criminal Procedure. The present petitioners who are proposed accused have not been joined as party in the revision and have not been given an opportunity of hearing. Therefore, the statutory breach committed by the learned Sessions Court is sufficient enough to quash and set aside the impugned judgment and order. Secondly, he would submit that, as of now, the dispute between the parties is settled on the civil side and in Regular Civil Appeal No.10 of 2015, party has placed on record the compromise and pursuant to that, aggrieved persons have withdrawn the appeal. Learned advocate Mr. Nandish H. Thackar has placed on record the order passed by the learned 3rd Additional District Judge, Veraval in Regular Civil Appeal No.10 of 2015.

4. Learned advocate Mr. Nandish H. Thackar to fortify his argument, refers to the judgment of Hon’ble Apex Court in case of Manharbhai Muljibhai Kakadiya and others Vs. Shaileshbhai Mohanbhai Patel and others 2012 (10) SCC 517 .

5. Mainly, on above submissions, he submits to allow this petition.

6. Learned APP in his utter fairness submits to remand the matter for breach of the provision of Section 401(2) of Code of Criminal Procedure.

7. Heard the learned advocates from both the sides and considered the ratio laid down by the Apex Court in Manharbhai Muljibhai Kakadiya and others (supra) and more particularly in para 48 to 53 which are extracted here under:

“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, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed the offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203-although it is at preliminary stage nevertheless res