IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3642/2013 BETWEEN:
Sri. P. Manjunath, S/o. Late Puttaswamy, Aged about 46 years, R/at No.19, 5th Cross, Avalahalli New Extension, Bengaluru – 560 026. …Petitioner (By Sri. V. Manjunath, Advocate) AND:
Sri. B.V. Manjunath, S/o. Late T.R. Veeranna, Aged about 52 years, Residing at No.C-81, G.B. Lane, Cottonpet, Bengaluru – 560 053. ...Respondent (By Sri. S.R. Rajendra Reddy, Advocate – absent) This Criminal petition is filed under Section 482 of Cr.P.C. praying to (a) quash the order dated 26.02.2011 in Crl.R.P.No.96/2010 passed by the Presiding Officer, Fast Track Court – VIII, Bengaluru and quash the order dated 22.11.2011 in C.C.No.35219/2011 passed by the I Addl. Chief Metropolitan Magistrate, Bengaluru and (b) confirm the order dated 08.12.2009 in PCR No.17107/2008 passed by the I Addl. Chief Metropolitan Magistrate, Bengaluru.
This Criminal petition coming on for Hearing, this day, the Court made the following:
O R D E R Petitioner is aggrieved by the order dated 26.02.2011 passed by the Presiding Officer, Fast Track Court – VIII, Bengaluru, in Crl.R.P.No.96/2010 whereby the Criminal Revision Petition filed by the respondent herein under Section 397 of Cr.P.C. was allowed thereby setting aside the order passed by the learned I Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.17107/2008 dated 08.12.2009.
2. The principal contention urged by the learned counsel for the petitioner is that the impugned order has been passed without notice to the petitioner and without affording an opportunity of hearing which is patently illegal and has impinged upon the legal rights of the petitioner and therefore, the order is liable to be quashed.
3. Learned counsel for the respondent is absent and has not addressed any argument.
4. Undisputed facts are that the respondent herein filed a private complaint against the petitioner and other accused seeking their prosecution for the alleged offences punishable under Sections 494, 495, 497, 193, 196, 199, 500, 506, 114 r/w 34 of IPC r/w Section 17 of Hindu Marriage Act.
5. Learned Magistrate upon recording the sworn statement of the complainant and on considering the same, dismissed the complaint by order dated 08.12.2009. Respondent herein challenged the said order before the Revisional Court in Crl.R.P.96/2010 and by order dated 26.02.2011, the Sessions Court allowed the Revision Petition and remitted the matter to the trial Court with a direction to take the file on its original number and to afford an opportunity to the Revision Petitioner/complainant to produce additional documents and evidence in support of his case and thereafter to dispose of the matter in accordance with law.
6. A reading of the impugned order reveals that notice of the Revision Petition was dispensed with since the petitioner herein/accused did not appear before the trial Court. This procedure in my view cannot be countenanced. The Hon’ble Supreme Court in the case of Maharibhai Muljibhai Kakadia and Anr. Vs. Shaileshbhai Mohanbhai Patel and Ors reported in 2013 Crl.L.J.144(1) has held that:
“In a case where the complaint has been dismissed by the Magistrate under Section 203 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. The dismissal of complaint by the Magistrate under Section 203 although it is at preliminary stage nevertheless results in termination of proceedings in a compliant against the persons who are alleged to have committed crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court of Sessions Judge, by virtue Section 401(2) of the Code, the suspects get right of hearing before revisional court although such order was passed without their participation. The right given to “accused” or “the other person” under Section 401(2) of being heard before the revisional court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2). The stage is not important whether it is pre- process stage or post process stage. It is, therefore, clear that upon challenge to the legality of the order under Section 203 dismissing a complaint 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.”
7. In the instant case, trial Court having found that the allegations made in the complaint did not disclose commission of any offence by the petitioner and other accused, dismissed the said complaint. The said order has the effect of acquittal of the petitioner. This order should not have been reversed without affording an opportunity of hearing to the petitioner. That apart, when the petitioner herein is arrayed as a party to the Revision Petition, petitioner has a right to be heard. Since the impugned order has been passed in violation of the basic principles of natural justice, the same cannot be sustained.
Consequently, petition is allowed. Impugned order dated 26.02.2011 passed by the Presiding Officer, Fast track Court – VIII, Bengaluru, in Crl.R.P.96/2010 is quashed. Matter is remitted to the Revisional Court for re- consideration of the Revision Petition after affording an opportunity of hearing to the petitioner in accordance with law.
Until disposal of the Criminal Revision Petition, further proceedings in C.C.No.35219/2011 shall stand stayed.
Sd/- JUDGE SV