2008 (12) TMI 741 - SC - Indian Laws

Whether the High Court in exercise of its jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure (for short the Code ) can pass an order in absence of the accused persons in the facts and circumstances of this case?

Summary

Issues Involved:
1. Whether the High Court can pass an order in the absence of the accused persons in the exercise of its jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure.
2. Whether the learned Magistrate had taken cognizance of the offence.
3. Whether the appellant was prejudiced by the High Court's order and if the principle of audi alteram partem (right to be heard) was violated.

Detailed Analysis:

Issue 1: High Court's Jurisdiction Under Sections 397 and 401 of the Code of Criminal Procedure

The primary issue was whether the High Court could pass an order without the presence of the accused persons under Sections 397 and 401 of the Code of Criminal Procedure. The High Court had set aside the Metropolitan Magistrate's order and directed a preliminary inquiry by police authorities without notifying the accused. The Supreme Court noted that Section 401(2) of the Code mandates that no order shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard. The Court emphasized that the term "any person" includes the accused and if the order affects him, he must be given a chance to be heard. The Court concluded that the High Court's order was prejudicial to the appellant and thus, he was entitled to be heard.

Issue 2: Cognizance of the Offence by the Magistrate

The Court examined whether the learned Magistrate had taken cognizance of the offence. It was found that the Magistrate had indeed applied his mind and decided not to exercise jurisdiction under Section 156(3) of the Code, directing instead that the complainant lead pre-summoning evidence. This indicated that the Magistrate had taken cognizance of the offence. The Supreme Court reiterated that once cognizance is taken, the accused has a right to be heard in any revision application filed against such an order.

Issue 3: Prejudice and Violation of Audi Alteram Partem

The Court addressed whether the appellant was prejudiced by the High Court's order and if the principle of audi alteram partem was violated. The appellant contended that he was prejudiced as he was not given an opportunity to contest the revision application. The Supreme Court agreed, stating that the principle of natural justice requires that any person affected by a judicial order must be given an opportunity to be heard. The Court cited previous judgments emphasizing the importance of this principle, including *Makkapati Nagaswara Sastri v. S.S. Satyanarayan* and *P. Sundarrajan and Others v. R. Vidhya Sekar*. The Court concluded that the High Court's failure to hear the appellant before passing the order violated the principles of natural justice.

Conclusion:

The Supreme Court set aside the High Court's judgment, directing it to implead the appellant as a party in the criminal revision application, hear the matter afresh, and pass an appropriate order. The appeal was allowed, affirming the necessity of adhering to the principles of natural justice and ensuring that the accused or any affected person is given an opportunity to be heard before any prejudicial order is passed.