This application under Section 482 Cr.P.C. has been filed seeking the quashing of impugned order dated 01.09.2017 passed by the Additional District & Sessions Judge, Court No.9, Meerut in Criminal Revision No.281 of 2017 as well as the entire criminal proceedings in Complaint Case No. 6651 of 2016 (Akash Jain Vs. Ramesh Chand & others) under Sections 406, 420, 120B I.P.C., Police Station Lal Kurti, District Meerut pending in the court of A.C.J.M., Court No.5, Meerut and quash the impugned consequential summoning order dated 19.09.2017 passed by the ACJM, Court No.5, Meerut under Sections 420, 406, 120B I.P.C.
Heard learned counsel for the applicant.
Submission of learned counsel for the applicant is that the complaint filed agianst the accused was dismissed on 12.05.2017 under Section 203 Cr.P.C. by the court below. Aggrieved by that order a revision was filed in the lower Revisional Court, where the Court set aside the order passed by the Magistrate and allowed the revision without affording opportunity of hearing to the applicant. There is nothing on record to indicate that the notices that issued to accused, were served upon them at all. The impugned order passed by the lower Revision Court does not contain any finding as to what fate attended the notices that were issued to the accused. Whether they remained unserved or whether the service to the accused was presumed under law to have been effected by the Court under certain circumstances or facts as they might have been. Contention is that there is no finding given in the impugned judgment that the notices were served or that the accused or their legal representatives did not appear in the Court despite service. It has been submitted by the counsel claiming it to be a matter of fact that notices were never served upon the accused and it has been contended that the accused did not have any knowledge about the proceedings that were going on against them in the lower Revisional Court at their back. Submission is that this course adopted by lower Revisional Court was against the law of the land. The Revisional Court ought to have proceeded only after affording opportunity of hearing to the applicant-accused. Counsel in this regard has placed reliance upon provision of Section 401 sub Clause 2 of Cr.P.C. in this regard. Submission is that the subsequent order of the Magistrate in compliance with the lower Revisional Court order also therefore stands vitiated whereby the applicant-accused has been summoned to face the trial.
Heard learned AGA and also counsel appearing on behalf of opposite party No.2.
Learned counsel for opposite party has in all fairness admitted that the notices issued to the accused had remained unserved. Learned counsel for opposite party No.2 has in all fairness also submitted that the matter may be remitted back to the lower Revisional Court directing that notice be issued to the accused and matter may be decided afresh after affording opportunity of hearing to the accused-applicant. Position of law in this regard has not been disputed by the counsel appearing for opposite party.
This Court has perused the record in the light of rival submissions made by both the sides. It may be pertinent to quote the relevant part of the case law of Manharibhai Muljibhai Kakadia & another Vs. Shaileshbhai Mohanbhai Patel & Ors, Criminal Appeal No.1577 of 2012 (SC) 656 that has been relied upon by the applicant's counsel, which is quoted herein below:-
"2. The sole question for consideration is, whether a suspect is entitled to hearing by the revisional court in a revision preferred by the complainant challenging an order of the Magistrate dismissing the complaint under Section 203 of the Criminal Procedure Code, 1973 (for short ''Code').
48. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. Three expressions, "prejudice", "other person" and "in his own defence" in Section 401(2) are significant for understanding their true scope, ambit and width. Black's Law Dictionary [Eighth Edition] explains "prejudice" to mean damage or detriment to one's legal rights or claims. Concise Oxford English Dictionary [Tenth Edition, Revised] defines "prejudice" as under :
"1. Preconceived opinion that is not based on reason or actual experience. unjust behaviour formed on such a basis. 2. harm or injury that results or may result from some action or judgment. v.1 give rise to prejudice in (someone); make biased. 2. cause harm to (a state of affairs)".
58. We are in complete agreement with the view expressed by this Court in P. Sundarrajan1 , Raghu Raj Singh Rousha2 and A. N. Santhanam3 . We hold, as it must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled."
In view of the ratio laid down by the Hon'ble Apex Court there does not appear to be any option than to hold that though the accused persons have not been summoned under Section 204 Cr.P.C. and they were only the proposed accused in the complaint case and even before they could be summoned by the trial court the proceedings going on at the initiation of complainant got dropped, but the order of dismissing the complaint under Section 203 Cr.P.C. would be deemed to be an order passed in favour of so called accused and thereafter the proceedings filed in the Revisional Court were intended against those proposed accused and the unfavourable order passed by the lower Revision Court was to the prejudice of those proposed accused. Even if the applicants may not come in the definition of accused as contemplated under Section 401(2) of Cr.P.C. but they may be brought under the definition of "the other person" as described in the same statute. With this liberal construction of the statute, so far as the proceedings of the Revisional Court are concerned, they must be held to have taken place at the back of the such accused persons without giving them the opportunity of being heard either personally or by pleader in their defence. The distinction between the proceedings that took place in the Court of the Magistrate up till the stage of 204 Cr.P.C. or for that matter up till Section 203 Cr.P.C. shall have to be placed at a different footing than the proceedings that took place in the court of revision where the complainant challenged the order passed by the Court of Magistrate under Section 203 Cr.P.C. The accused before being summoned shall definitely have not any right of being heard and shall also not have any right to participate in the proceedings taking place in the court of Magistrate and he shall have locus to appear and address the Court only after being summoned under Section 204 Cr.P.C.. But when the Court of Revision would hear the matter for the purpose of pronouncing its verdict upon the validity of the Magisterial order dismissing the complaint, there at that stage the proposed accused shall have to be granted an opportunity of being heard. The two stages are distinct and the distinction, according to the Apex Court's interpretation, was recognised by the legislature in its wisdom. Perusal of the impugned judgment passed by the lower Revisional Court does not make any mention about the service of notice to the accused and keeping in view the fact that the service of the notice to the accused has not been even claimed by the counsel appearing on behalf of the accused here before this Court, there does not appear to be any difficulty in disposing of this matter in the light of law that has been laid down by the Hon'ble Apex Court.
In view of the aforesaid discussion, the only proper course which appears apt in this case is to quash the impugned judgment and order and remand the matter back to the Lower Revisional Court to proceed in the matter after affording opportunity of hearing to the accused. The Lower Revisional Court shall take steps to issue notice to the accused and after adopting proper procedure relating to the service of notice shall proceed further in the matter in accordance with law.
The impugned orders dated 01.09.2017 and 19.09.2017 are hereby quashed and the present application, stands disposed off in aforesaid terms.
Order Date :- 22.2.2018 Nitin Verma