CRLR 1311/07 (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur O R D E R In S.B. Criminal Revision Petition No.1311/2007 B.B. Mohanti Vs. The State of Rajasthan and another Date Of Order :: 8.2.08 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. N.A. Naqvi, counsel for petitioner. Ms. Nirmala Sharma, PP for State. Mr. S.S. Hora, counsel for non-petitioner. ............. By the Court :- This revision petition under section 397 read with 401 of the Code of Criminal Procedure (hereinafter to be referred as 'the Code') is directed against the order dated 4/12/2007 passed by Additional Sessions Judge No.1, Jaipur City, Jaipur in Criminal Revision No.23/2007 CRLR 1311/07 (2) whereby the revision was accepted and the order dated 22/5/2007 passed by Additional Chief Judicial Magistrate No.10, Jaipur City, Jaipur was quashed and set aside and the learned Additional Chief Judicial Magistrate was directed to register the case against the accused petitioner B.B. Mohanti for the offences under sections 420 & 506 IPC. 2. Brief facts of the case giving rise to this revision petition are that the complainant-non-petitioner Narayan Padi filed a complaint in the court of Additional Chief Judicial Magistrate No.10, Jaipur City, Jaipur stating therein that he and B.B. Mohanti are the residents of Orissa; his employer Sh. S.S. Sharma who was also known to Sh. B.B. Mohanti agreed and thereupon handed over his sharma building, situated at Bhuvaneshwar, to Sh. B.B. Mohanti free of CRLR 1311/07 (3) rent for a period of three years to run a school by Mohanti's wife; it was also alleged that two blank stamp papers were also taken by the petitioner from Sh. S.S. Sharma on the pretext of need for getting the electricity and water connection and lateron Sh. B.B. Mohanti demanded Rs.7.5 lacs for handing over the possession of the building and blank stamp papers; ultimately a sum of Rs.5.5 lacs was settled and the same was paid to Sh. B.B. Mohanti by Sh. S.S. Sharma through the complainant, and on that possession of the building was handed over by Sh. Mohanti and an assurance was given to remove the furniture from the building within two-three days and to hand over the blank papers after his arrival at Jaipur but the stamp papers were not handed over by Sh. Mohanti even on his return to Jaipur; CRLR 1311/07 (4) thereafter a notice was served by Sh. S.S. Sharma to the complainant regarding the amount paid to Mohanti and unreturned stamp papers; on this the complainant went to the house of the petitioner B.B. Mohanti and asked him to return the blank papers or the amount then allegedly B.B. Mohanti abused and also threatened him to implicate in some false cases. 3. The complainant was examined under section 200 of the Code and statement of witnesses were recorded under section 202 of the Code, thereafter, learned Judicial Magistrate sent the complaint for inquiry to the Police Station Gandhi Nagar after framing three points. Police submitted its report and after hearing to the complainant the learned Magistrate declined to take cognizance and accordingly the complaint was CRLR 1311/07 (5) dismissed. Against that order the complainant filed a revision petition and the revisional court while allowing the revision petition directed the learned Magistrate to register the case for the offences under sections 420 & 506 IPC against the petitioner B.B. Mohanti. Therefore, this revision petition has been filed by the petitioner before this Court. 4. Heard learned counsel for petitioner as well as complainant-non- petitioner and Public Prosecutor for the State and perused the material placed during the course of arguments. 5. It was inter alia contended that the learned Magistrate has passed the detailed and reasoned order and formed an opinion that prima facie no case is made out against the accused petitioner, therefore, no CRLR 1311/07 (6) interference by the revisional court was required when there was no material on record for taking the cognizance. It was then contended that learned revisional court contrary to the scope of revision directed the learned Magistrate to register the case against the petitioner for the offences under sections 420 & 506 IPC while at the most the matter could have been referred back for further inquiry. Reliance was placed on Lalita (Smt.) Vs. State of Rajasthan & Anr., reported in 2004 (2) Cr.L.R. (Raj.) 1004, Niku Ram & Ors. Vs. State of Rajasthan & Anr., reported in 2006 (1) Cr.L.R. (Raj.) 668 and Sheetal & Anr. Vs. State of Rajasthan & Anr., reported in 2005 (2) Cr.L.R. (Raj.) 1429. The next limb of the submissions was that without affording any opportunity to the petitioner, the impugned order was passed CRLR 1311/07 (7) whereas opportunity of hearing to the accused or other person is essential pre-condition to exercise revisional jurisdiction in accordance with the provision of sub-section (2) of section 401 of the Code. Reliance was placed on Kishan Lal Vs. State of Raj., reported in RCC 1991 page 619, Parmeshwar Lal & Ors. Vs. Dilip Sharma & Anr., reported in 1997 Cr.L.R. (Raj.) 426 and Bodu Ram Vs. State & Ors., reported in 2002(1) Cr.L.R. (Raj.) 344. 6. Per contra, learned counsel appearing for the complainant submitted that the revisional court considering the entire material on record, passed just and lawful order. It was also submitted that the revisional court was competent to give directions to register the case and proceed with the matter keeping in view the fact CRLR 1311/07 (8) situation of a particular case. It was then contended that in the instant case learned Magistrate dismissed the complaint at the stage of section 203 of the Code, therefore, accused has no locus standi to make his submissions in the matter until process is issued against him and as such notice to accused was not required in the revision petition filed against the order dismissing the complaint under section 203 of the Code. In support of the contentions, learned counsel for non-petitioner drew my attention to the decisions of various High Courts as well as the Hon'ble Apex Court. In the case of Dr. S.S. Khanna Vs. Chief Secretary, Patna and another, reported in AIR 1983 Supreme Court 595 it was held that process against a person against whom a complaint is filed does not become an accused until it is decided to CRLR 1311/07 (9) issue process against him, even if he participated in the proceedings under section 202 of the Code he does so not as an accused but as a member of the public. Similar view was also taken by the Hon'ble Apex Court in the case of Chandra Deo Singh Vs. Prakash Chandra Bose alias Chabi Bose and another, reported in AIR 1963 Supreme Court 1430 wherein it was held that the entire scheme of Chapter XVI of the Code shows that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an inquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. In the case of Vali and others Vs. Vali Mohd. and others, reported in WLN 1979 page 120 a single bench of this CRLR 1311/07 (10) Court while considering the provisions of section 398 of the Code observed that when the learned Magistrate dismissed the protest petition, it cannot be said that the petitioners were discharged. It was further observed that it was not necessary for the Additional Sessions Judge to have afforded opportunity of showing cause to the petitioners as envisaged by section 398 of the Code. In J.K. International Vs. State, reported in 2002 CRI.L.J. 2601 it was held by Delhi High Court that accused has no right to participate in the inquiry at pre-summoning stage. It was further held that co-joint reading of proviso to section 398 of the Code and sub-section (2) of section 401 makes it abundantly clear that in the case where the complaint is dismissed in default for non- appearance of the complainant during inquiry CRLR 1311/07 (11) at the pre-summoning stage, notice in revision against such order to the accused persons is not mandatory. Similar view was also taken by Madras High Court in the case of S. Thiyagrajan, B. SC. B.L. Vs. Ayyamperumal and another, reported in Crimes X-1983(2) page 765. 7. I have given my thoughtful consideration to the rival submissions made at the bar. In the instant case, the complaint was dismissed by the Additional Chief Judicial Magistrate No.10, Jaipur City, Jaipur and thereafter Additional Sessions Judge No.1, Jaipur City, Jaipur allowed the revision petition filed by the complainant and directed to the Additional Chief Judicial Magistrate to register the case against the accused petitioner B.B. Mohanti for the offences under sections 420 & 506 IPC. In CRLR 1311/07 (12) this backdrop of fact situation, it is to be adjudged whether by virtue of the provisions of section 401(2) of the Code it was mandatory upon the revisional court to serve upon a notice to the petitioner accused and to afford an opportunity of hearing prior to acceptance of the revision petition. 8. In order to resolve the above legal controversy it would be relevant to have a look over certain provisions of the Code. 9. Chapter XV of the Code prescribes procedure for private complaints. Section 200 of the Code provides that Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, then section 202 of the Code provides postponement of issue of process and if he thinks fit, may CRLR 1311/07 (13) 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, after considering the statements and the result of inquiry or investigation, if any, under section 202 of the Code. On the other hand, if the Magistrate is of the opinion that there is sufficient ground for proceeding then process is issued against accused as provided under section 204 of the Code. 10. Thus, it is abundantly clear that in a case of private complaint an accused person does not come in the picture at all till process is issued against him. He may remain present in person or through a counsel or agent with a view to be informed of the CRLR 1311/07 (14) proceedings but he has no right to participate in it nor the Magistrate has jurisdiction to permit him to do so. It is also settled proposition of law that the order of dismissal of the complaint under section 203 of the Code, and alike an order passed under section 204 of the Code for issuance of process against the accused is a judicial order determining the rights of the parties by the concerned Judicial Magistrate after due application of mind, therefore, the same can be challenged in the revision under section 397 of the Code before the High Court or the Court of Sessions. 11. To ascertain whether an accused has a right of being heard in revision petition preferred against the order of dismissal of the complaint, it would also be appropriate to consider the provisions of CRLR 1311/07 (15) sections 398 & 401 of the Code which are as under :- 398. Power to order inquiry.-On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 of sub- section (4) of section 204 or into the case of any person accused of an offence who has been discharged : Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. 401. High Court's power of revision.-(1) In the case of CRLR 1311/07 (16) any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an CRLR 1311/07 (17) appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. 12. According to section 398 of the Code, the High Court or the Court of Sessions on examination of any record under section 397 or otherwise may direct the Chief Judicial Magistrate or any Judicial Magistrate to make further inquiry into any complaint which has been dismissed under section 203 of the Code or sub-section (4) of section 204 of the Code or into the case of any person accused of an offence who has been CRLR 1311/07 (18) discharged. The proviso to section 398 of the Code further provides the rider that no Court shall make any direction for inquiry into the case of any person who has been discharged unless such person is given opportunity of showing cause. On the other hand section 401 of the Code empowers the High Court in revisional jurisdiction to exercise in its discretion any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 of the Code or on a Court of Sessions by section 307 of the Code. Only rider has been imposed under section 401 (3) of the Code that finding of acquittal into one of conviction cannot be converted. However, sub-section (2) of section 401 of the Code further imposes restriction that no order under this section shall be made to the prejudice of the accused or other person CRLR 1311/07 (19) unless he has had an opportunity of being heard either personally or by pleader in his own defence. The powers of section 401 of the Code have also been conferred on the Court of Sessions and the Court of Additional Sessions Judge by virtue of sections 399 & 400 of the Code. Therefore, it is amply clear that section 398 of the Code gives the power to the revisional court to order for further inquiry if complaint has been dismissed by the Chief Judicial Magistrate or any Judicial Magistrate subordinate to him, however the High Court while exercising the revisional jurisdiction under section 397 read with 401 of the Code, in its discretion, can exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 of the Code except converting a finding of acquittal into one of conviction and CRLR 1311/07 (20) similar powers can be exercised by the Court of Sessions or Additional Sessions Judge under section 397 read with 399 and 400 of the Code but sub-section (2) of section 401 of the Code further imposes restriction that no order prejudicial to the accused or other person can be passed under section 397 read with 401 of the Code without affording an opportunity of being heard to such person. In Kishan Lal and Parmeshwar Lal and others' case (both supra) this Court also happened to consider the similar controversy wherein it was observed that a reasonable opportunity for the accused or any other person to be heard is an essential condition precedent to the exercise of jurisdiction under section 401 of the Code and any order passed in contravention of sub-section (2) of section 401 is null and void. Hon'ble the Apex Court CRLR 1311/07 (21) in the case of A.K. Vyas and others Vs. State of Karnataka and others, reported in 1987 (4) SCC 57 has also clarified though in different context that “if the revisional court, after exercising jurisdiction under section 401 of the Code wants to pass an order to the prejudice of such a person, it is necessary that the person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceeding in the Court below nor is accepted at any stage even after the revision to be joined as a party”. 13. In the case in hand, the revisional court while allowing the revision petition did not direct the Magistrate to conduct further inquiry which could be ordered under section 397 read with 398 of CRLR 1311/07 (22) the Code but while setting aside the order Additional Chief Judicial Magistrate was directed to register a case against the accused petitioner for the offence under section 420 & 506 IPC and to proceed in accordance to law. This order clearly appears to have been passed while exercising the powers under section 400 read with 401 of the Code. Since the order of dismissal of the complaint passed by Additional Chief Judicial Magistrate was virtually exoneration of the accused petitioner from being proceeded in the criminal case, which has not only been set aside by the revisional court but further ordering to register a criminal case is definitely prejudicial to his interest as he is compelled to face the trial, therefore, in my considered opinion in view of sub-section (2) of section 401 of CRLR 1311/07 (23) the Code it was obligatory on the part of the revisional court to afford an opportunity of hearing to the accused petitioner before passing of impugned order. 14. The point of necessity of notice in revision under section 401(2) of the Code may also be viewed from another angle. In a situation where the High Court, without affording any opportunity of hearing to the affected party, while exercising revisional jurisdiction under section 397 read with 401 of the Code passes an order for taking cognizance and register a case under certain offences then in that situation accused/affected person shall not have any opportunity to get that order screened by revisional court. Therefore, to meet such a situation, it appears that the legislature in its wisdom has incorporated section 401(2) of CRLR 1311/07 (24) the Code wherein prior to passing any order prejudicial to the accused or another person under section 401(1) of the Code opportunity of hearing was made mandatory. 15. In the instant case, as it has been noticed that impugned order was passed by Additional Sessions Judge No.1, Jaipur City, Jaipur by invoking the provisions of section 397 read with 400 & 401 of the Code and no notice was given to the accused petitioner by the revisional court while setting aside the order of the learned Additional Chief Judicial Magistrate No.10, Jaipur City, Jaipur and thereby ordered to register the case against the accused petitioner for the offences under section 420 & 506 IPC. Therefore, for the reasons mentioned here-in-above, order of the learned Additional Sessions Judge No.1, Jaipur City, CRLR 1311/07 (25) Jaipur is in contravention to sub-section (2) of section 401 of the Code, hence this order cannot sustain in the eyes of law. 16. Consequently, I allow this revision petition and set aside the order dated 4/12/2007 passed by Additional Sessions Judge No.1, Jaipur City, Jaipur and remand the matter back to his court to decide the revision afresh after giving an opportunity of hearing to the petitioner. (J.R. Goyal),J VS Shekhawat/- Jr. P.A.