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TMI Blog2012 (10) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... e CJM, there remains no doubt that on 18.06.2004, he had taken cognizance although he postponed issue of process by directing an investigation to be made by Police Officer. The submission of the learned counsel for the respondent no.1 that the CJM had not taken cognizance in the matter and the complaint was dismissed under Section 203 at the pre-cognizance stage has no substance and is rejected - In the revision petition filed under Section 397 read with Section 401 and Section 482 of the Code, it was contended on behalf of the complainant that the Metropolitan Magistrate erred in taking into consideration possible defence of the accused instead of ascertaining whether on a consideration of the complaint and the pre-summoning evidence, a prima facie case had been made out for summoning the accused for the offence mentioned in the complaint. It was also argued on behalf of the complainant before the High Court that the accused persons have not yet been summoned and even cognizance of the case has not been taken by the Metropolitan Magistrate and, therefore, there was no occasion at all for the accused persons to be heard In a case where the complaint has been dismissed by the Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant : LAWYER S KNIT CO For The Respondent : MS. HEMANTIKA WAHI JUDGMENT Leave granted. 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 ). 3. It is not necessary to set out the facts in detail. Suffice it to say that Shaileshbhai Mohanbhai Patel, respondent no. 1, filed a criminal complaint on 15.5.2004 in the Court of Chief Judicial Magistrate, Surat (for short CJM ) against Manharibhai Muljibhai Kakadia and Paresh Lavjibhai Patel, appellants, alleging that they had pre-planned a conspiracy; created forged documents bearing signatures of the complainant, his father and uncle, two sons of his uncle and his elder brother and have used the said documents as true and genuine by producing the same before the District Registrar, Cooperative Society, Nanpura, and by making false representation obtained registration of Indoregency Cooperative Housing Society Limited and by doing so the accused (appellants) have caused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is accepted, that would have the effect of revival of the complaint and setting the criminal process back in motion which would be definitely prejudicial to the appellants and before any such prejudicial order is passed, the appellants ought to be heard. In support of the above contentions, learned senior counsel relied upon decisions of this Court in P. Sundarrajan and others v. R. Vidhya Sekar[(2004) 13 SCC 472], Raghu Raj Singh Rousha v. Shivam Sundaram Promoters Private Limited and another[(2009) 2 SCC 363] and A. N. Santhanam v. K. Elangovan[2011 (2) JCC 720 (SC)]. 11. Mr. Shyam Divan, learned senior counsel would also argue that expression, in his own defence in Section 401 (2) is a comprehensive expression which also means in defence of the order under challenge in revisional jurisdiction. Learned senior counsel submitted that prejudice may cover wide range of situations and must be considered in wider sense. Section 401 does not make any distinction between pre-process stage and post-process stage. Sub-section (2) of Section 401 is applicable regardless and whether or not process has been issued under Section 204 of the Code. 12. It was also submitted on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008) decided on 12.2.2009 wherein decision of this Court in Raghu Raj Singh Rousha2 has been distinguished. 15. Learned counsel for the respondent no. 1 would submit that decision of this Court in P. Sundarrajan1 was not applicable to the fact situation of the present case inasmuch as in that case, the accused were party in the revision petition whereas in the subject revision the appellants have not been allowed to be impleaded as party respondents and the impugned order has been passed on the application for impleadment. While referring to A. N. Santhanam3, learned counsel for the respondent no. 1 submitted that this case too was not applicable to the facts of the present case as in that case the complainants were examined under Section 200 of the Code whereas in the present case the CJM has accepted the C Summary Report under Section 173 after the investigation was done by the police. 16. In order to appreciate the rival submissions, some of the provisions of the Code need to be referred to. Section 156 deals with Police Officer s power to investigate cognizable case. It reads as follows: S. 156. Police Officer s power to investigate cognizable case. - (1) Any offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. 201. Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, - (a) If the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect; (b) If the complaint is not in writing, direct the complainant to the proper court. S. 202. Postponement of issue of process.-- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct 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: Provided that no such direction for investigation shall be made- (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. 21. Section 397 of the Code empowers the High Court or the Sessions Judge to call for and examine the record of any proceeding before any inferior court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety, inter alia, of any order passed by such inferior court. The powers of revision are concurrent with the High Court and the Sessions Judge. By virtue of Section 399, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401 and while doing so the provisions of sub-sections (2),(3),(4) and (5) of Section 401 apply to such power as far as possible. Section 401 deals with High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate under Section 202. The legal position is no more res integra in this regard. More than five decades back, this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker and another[(1961) 1 SCR 1] with reference to Section 202 of the Criminal Procedure Code, 1898 (corresponding to Section 202 of the present Code) held that the inquiry under Section 202 was for the purpose of ascertaining the truth or falsehood of the complaint, i.e., for ascertaining whether there was evidence in support of the complaint so as to justify the issuance of process and commencement of proceedings against the person concerned. 24. In Chandra Deo Singh7, a four-Judge Bench of this Court had an occasion to consider Section 202 of the old Code. The Court referred to the earlier decision of this Court in Vadilal Panchal14 and few previous decisions, namely, Parmanand Brahmachari v. Emperor[AIR (1930) Patna 30], Radha Kishun Sao v. S.K. Misra and Anr. [AIR (1949) Patna 36], Ramkisto Sahu v. The State of Bihar[AIR (1952) Patna 125], Emperor v. J.A. Finan[AIR (1931) Bom 524], Baidya Nath Singh v. Musprat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er inquiry and the complaint, the evidence adduced at that stage have materials to proceed, he can proceed to issue process under Section 204 of the Code. 13. Section 202 contemplates postponement of issue of process . It provides that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself 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, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code. 14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements on oath, if he is of the opinion that there is no sufficient ground for proceeding, the complaint shall be dismissed after recording brief reasons. The Magistrate may also on receipt of a complaint of which he is authorised to take cognizance proceed with further inquiry into the allegations made in the complaint either himself or direct an investigation into the allegations in the complaint 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. In that event, the Magistrate in fact postpones the issue of process. On conclusion of the inquiry by himself or on receipt of report from the police officer or from such other person who has been directed to investigate into the allegations, if, in the opinion of Magistrate taking cognizance of an offence there is no sufficient ground for proceeding, complaint is dismissed under Section 203 or where the Magistrate is of the opinion that there is sufficient ground for proceeding, then a process is issued. In a summons case, summons for the attendance of the accused is issued and in a warrant case the Magistrate may either issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression, taking cognizance of an offence has been explained in paragraph 43 of the Report which reads as follows: 43. Similarly, when Section 20-A(2) of TADA makes sanction necessary for taking cognizance - it is only to prevent abuse of power by authorities concerned. It requires to be noted that this provision of Section 20-A came to be inserted by Act 43 of 1993. Then, the question is as to the meaning of taking cognizance. Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word cognizance indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. 34. The ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if the order of the CJM passed on 18.6.2004 is seen, it becomes apparent that he had applied judicial mind on the complaint that day. The order records, on perusing the complaint and the accompanying documents, in the said matter it is necessary to take into custody the documents mentioned in the complaint. It is necessary to find out the persons who have forged signatures on such documents, and record their statements, and to compare the said signatures with the signatures of the family members of the complainant, and in this regard obtain the opinion from the Handwriting Expert, in view of all this such investigations cannot be done by the Court, in view of this fact below Section 156(3) of Cr.P.C. in the matter of the said complaint for police investigations it is hereby ordered to send the said inquiry to the P.I., Umra, Police Station. And, he is ordered to investigate thoroughly in this matter and within 30 days present the report before this Court . 39. From the above order passed by the CJM, there remains no doubt that on 18.06.2004, he had taken cognizance although he postponed issue of process by directing an investigation to be made by Police Officer. The submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 397(2) and 403 of the Code and then held that allowing the suspects to be heard at this stage would amount to permitting them to have their say at the stage which is not contemplated by the Code and it would be giving a premature hearing to the accused. The High Court was persuaded by the submission of the complainant that an accused cannot be given pre-trial hearing. The High Court observed as follows : 6. The views consistently expressed by this Court as well as by the Supreme Court about the hearing of the suspects at the stage of granting of 'C summary or not is clearly to the effect that they have no locus standi. 7. In this background we turn to the submission made under Section 403 of the Code of Criminal Procedure, by learned Advocate Shri J.R. Nanavati. There again at first sight it might appear that party referred to in the said section could be a party other than one arrayed before the Court on either side, but when we realise that the matter to be dealt with under Chapter 30 of the Code of Criminal Procedure wherein occurs Section 403 power is that of a Revision and it being the power exercised by the Court, a party may or may not be heard as the Court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to scrutinise the justifiability of the order refusing to take cognizance. This being the position of law disposal of revision by the revisional Court without issuing notice to the non-applicant is not infirm or pregnable. Once it has been held that the accused persons have no role to play before process is issued the revision at their instance challenging the order of the revisional Court directing the Magistrate to reconsider the matter is not tenable as they cannot raise grievance in regard to the same as yet there is no direction for issuance of process. 43. A Single Judge of Punjab and Haryana High Court in Gurdeep Singh11 was concerned with a petition under Section 482 of the Code filed by the accused seeking quashment of the order passed by the Sessions Judge setting aside the order of the CJM whereby the complaint was dismissed for want of prosecution. The dismissal of complaint by the CJM for want of prosecution was at the initial stage. The challenge to the order of the Sessions Judge by the accused was on the ground that the Sessions Judge while allowing the revision application had infringed the provisions of Section 401(2) of the Code inasmuch as no opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been taken by the Metropolitan Magistrate and, therefore, there was no occasion at all for the accused persons to be heard. It was also argued on behalf of the complainant that at the pre- cognizance stage, there was no question of the accused being given an opportunity even in a revision petition filed by the complainant against the order of dismissal of complaint. On the contrary, on behalf of the accused persons it was argued that under Section 401(2) of the Code, if adverse order is going to be passed in revision petition which might prejudice either the accused or any other person then such a person has to be mandatorily given an opportunity of being heard either personally or by pleader in defence. The Single Judge of that Court on consideration of the submissions of the parties and the decisions cited before him culled out the legal position as follows : 20. xxx xxx xxx 1) There is a distinction to be drawn between the criminal complaint cases which are at the pre-cognizance stage and those at the post-cognizance stage. There is a further distinction to be drawn between the cases at the post- cognizance but pre-summoning stage and those at the post- summoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter to the Magistrate to grant another opportunity to the complainant to lead pre summoning evidence and to proceed in the matter in accordance with law and, therefore, there was no occasion for the Sessions Judge to accord hearing to the accused persons. The High Court held as under: 16. .As already discussed above, the character of the petitioner was still not that of an accused as the complaint filed by the respondent was dismissed under Section 203 Cr.P.C. and since the matter was remanded back to the Magistrate to grant opportunity to the complainant to lead pre-summoning evidence, therefore, the said order does not cause any prejudice to the rights of the petitioner. Even after the said remand, the fate of the complaint case could either be dismissal under Section 203 or under 204 Cr.P.C., if the Court with the fresh material before it, comes to the conclusion to proceed against the respondent. Since in the present case the process was not yet issued against the petitioner and the complaint was dismissed under S. 203 of Cr.P.C., therefore, preceding the said stage, the petitioner had no right to seek opportunity of hearing before the Revisional Court in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hinks 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings in a complaint 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 or Sessions Judge, by virtue of 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) of the Code. The stage is not important whether it is pre-process stage or post process stage. 55. In P. Sundarrajan1, a two-Judge Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Metropolitan Magistrate filed a revision petition before the High Court. The High Court with the consent of the APP appearing for the State set aside the order of the Metropolitan Magistrate with a direction to him to examine the matter afresh after calling for a report from the police authorities. It is from this order that the matter reached this Court at the instance of the suspect/accused. The Court observed that if the Metropolitan Magistrate had taken cognizance of the offence and issuance of summons upon the accused persons had been merely postponed, in a criminal revision filed on behalf of complainant, the accused was entitled to be heard before the High Court. Sections 397, 399 and 401 were noticed by this Court and so also few earlier decisions including Chandra Deo Singh, Vadilal Panchal, P. Sundarrajan and then in paragraphs 22 and 23 (Pg. 369) of the Report, the Court held as under : 22. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156(3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. For the aforesaid reasons, the impugned order is set aside and the Criminal Revision Case No. 1045 of 2003 shall stand restored to its file for hearing and disposal on merits after notice to the appellant herein. 58. We are in complete agreement with the view expressed by this Court in P. Sundarrajan1 , Raghu Raj Singh Rousha and A. N. Santhanam . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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