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1994 Supreme(All) 414
IN THE HIGH COURT OF ALLAHABAD
R. R. K. TRIVEDI
MARKANDEY SINGH KUSHAWAHA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Revision 1061 Of 1994
Decided On : 06/27/1994
AJIT SINGH
The accused are not entitled to a hearing before being summoned, as the proceedings at this stage are not between the complainant and the accused, but between the complainant and the court.
Headnote:
CRIMINAL PROCEDURE CODE - SUMMONING ORDER - OPPORTUNITY OF HEARING - ACCUSED NOT ENTITLED TO HEARING BEFORE SUMMONING - PRINCIPLES OF NATURAL JUSTICE NOT VIOLATED.
Fact of the Case:
The applicants were summoned by the Assistant Chief Judicial Magistrate under Sections 364 and 368, I. P. C. based on a complaint filed by the complainant after the police submitted a final report in their favor. The applicants challenged the summoning order, arguing that they were not given an opportunity of hearing before being summoned, which violated the principles of natural justice.
Finding of the Court:
The court held that the accused are not entitled to a hearing before being summoned, as the proceedings at this stage are not between the complainant and the accused, but between the complainant and the court. The court further held that recognizing a right to hearing at this stage would delay the conclusion of inquiries and trials and create serious complications.
Issues: Whether the accused are entitled to a hearing before being summoned.
Ratio Decidendi: The court relied on the following principles and provisions: - The scheme of the Criminal Procedure Code does not recognize a right in the accused to participate in proceedings before the issuance of process. - The purpose of the inquiry under Section 202 of the Code is to ascertain whether there is a valid foundation for the complaint, not to adjudicate the guilt or innocence of the accused. - The accused is not legally called to participate in the proceedings under Section 202 of the Code. - The provisions of Sections 227, 239, and 245 of the Code provide sufficient protection to the accused's interests at various levels before the commencement of the actual trial.
Final Decision: The court dismissed the revision petition, holding that the summoning order was valid and did not violate the principles of natural justice.
( 1 ) HEARD learned counsel for the applicants.
( 2 ) THE facts giving rise to this criminal revision are that on 21/12/1992, a first information report was lodged by Om Prakash Singh Kushwaha to the effect that after school was closed at 4. 00 p. m. his son Vivek Kumar alias Pintoo was coming back to home with, Sudha daughter of his younger brother. He was intercepted by some person and under the pretext that his grand-mother has suffered from a snake bite and everybody is in the hospital and he has also been required there by his family members. Boy Vivek Kumar was thus taken away. Daughter Sudha however, went back to school and informed her teachers about this occurrence. Sudha was ultimately sent to her home by help of school staff. On knowing this happening a search was made but Vivek Kumar could not be traced in spite of the best efforts. On 24/12/1992, the body of the boy was found near Dadri Ghat of river Ganga at Ghazipur. On this information, case crime No. 806 of 1992, under Sections 364, 302, 109, 201 and 120, I. P. C. was registered at Police Station Kotwali, District Ghazipur. A confessional statement was given by accused Ram Bachan Kushwaha. His statement under Section 164, Cr. P. C. was recorded on 16/01/1993 by the Magistrate. The police after investigation filed a report under Section 173, Cr. P. C. against accused Ram Bachan and Radhey Shyam Singh Kushwaha. However it submitted a final report so far as present applicants are concerned. The complainant then filed a criminal complaint against applicants registered as criminal case No. 898 of 1993 before the Chief Judicial Magistrate, Ghazipur. It appears that the case was transferred to the Court of Assistant Chief Judicial Magistrate, Ghazipur where it has been renumbered as criminal case No. 1255 of 1993. The complainant examined himself under Section 200, Cr. P. C. and also examined three witnesses under Section 202, Cr. P. C. and also filed an affidavit of the Medical Official (Doctor) and other documentary evidence namely statement of Ram Bachan under Section 164, Cr. P. C. recorded by the court. The learned Assistant Chief Judicial Magistrate on basis of this material felt satisfied and summoned the applicants by his order dated 1/06/1994 under Section 364 and 368, I. P. C. which has been challenged in the present revision.
( 3 ) LEARNED counsel for the applicants has challenged the order on the ground that the applicants were not given any opportunity of hearing before summoning and the order is violative of principles of natural justice. It has been submitted that as final report was submitted by the police so far as the applicants are concerned, they ought to have been given an opportunity of hearing before passing the summoning order. Reliance has been placed on a decision of this Court in case of Gajendra Kumar Agarwal v. State of U. P. , reported in 1994 ACC 341.
( 4 ) I have seriously considered the submission of the learned counsel for the applicants and I have also perused the view expressed by the learned single Judge in case of Gajendra Kumar Agarwal.
( 5 ) IT would be very appropriate at this place to discuss the position of the accused in a criminal case at different stages of investigation, enquiry and trial and his right to appear and participate in criminal proceedings. Honble Supreme Court through a constitutional bench consisting of five Judges in case of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose reported in AIR 1963 SC 1430 : (1963 (2) Cri LJ 397) expressed its view in the following words :"taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on.
