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TMI Blog2014 (6) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... his ground, the impugned order of the High Court is liable to be set aside and the matter has to be remitted. Though other grounds such as charge-sheet having been filed and the cognizance has been taken against accused No.1, the protest petition cannot be treated as a complaint warranting an independent inquiry, have been raised in this appeal, we do not deem it necessary to consider the same since we are remitting the matter for fresh consideration and it is open to the appellant to raise them before the High Court. In the result the impugned order of the High Court dated 18.4.2011 is set aside and the matter is remitted and the High Court shall issue notice to all the concerned accused and thereafter hear and dispose of the crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 328/302 IPC against accused No.1 Sunita Devi and discharged accused Nos. 2 to 5 in the First Information Report from the case and rejected the protest-cum-complaint petition filed by the complainant by his order dated 4.3.2009. Aggrieved by the rejection of the protest-cum-complaint petition Sunil Paswan, the son of complainant late Harinandan Paswan filed revision petition in Criminal Revision No.830 of 2009 on the file of the High Court of Judicature at Patna under Section 397 and 401 of the Code of Criminal Procedure. The High Court after hearing the revision petitioner and the respondent State set aside the order dated 4.3.2009 passed by Addl. Chief Judicial Magistrate, Patna City and remanded the matter to the court below for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission he relied on the decision of this Court in Manharibhai Muljibhai Kakadia and another vs. Shaileshbhai Mohanbhai Patel and others [(2012) 10 SCC 517]. We also heard the learned amicus curiae on the submissions made by the learned counsel for the appellant. 6. Admittedly the appellant herein is mentioned as accused No.4 in First Information Report No.96 of 2003 dated 28.5.2003. The father of respondent No.1 herein, while alive filed a protest-cum-complaint petition dated 7.6.2003 in the said case and on the filing of the final report, cognizance was taken by the Addl. Chief Judicial Magistrate against accused No.1 Sunita Devi alone for the alleged offences under Section 328 and 302 IPC and the other four accused mentioned in the Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint u/s. 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. 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the 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 the express provision contained in S. 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage. 8. In the present case challenge is laid to order dated 4.3.2009 at the instance of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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