THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No. 1624 OF 2009 ORDER: 1. This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) to quash the order dated 29.12.2008 in Crl.M.P. No.294 of 2008 in Criminal Revision Petition No. 62 of 2008 on the file of the III Additional Metropolitan Sessions Judge, Hyderabad. 2. The petitioners herein filed a private complaint against the first respondent herein, before the X Additional Chief Metropolitan Magistrate, Secunderabad, for the offence punishable under Section 500 I.P.C.. The learned Magistrate recorded sworn statement of the complainant, and after considering the material on record, vide order dated 1.2.2008 in S.R. No.7085 of 2007, rejected the complaint as no prima facie case is established. Challenging the said order, the petitioners/complainants filed Criminal Revision Petition No.62 of 2008 before the learned III Additional Metropolitan Sessions Judge, Hyderabad. When notice was ordered in the revision to the first respondent/accused, batta has been paid by the petitioners herein and the first respondent/accused was represented through an advocate, who also advanced arguments on behalf of the accused, and after hearing both sides, the matter was reserved for judgment. At that stage, the petitioners/complainants filed a petition to reopen the matter and the matter was reopened. They also filed another application to eschew the arguments advanced by the counsel for the first respondent/accused. That petition was dismissed on the ground that those submissions can be considered at the final adjudication of the revision. Challenging the same, the present Criminal Petition is filed. 3. The second petitioner/party-in-person contended that in an enquiry under Section 202 Cr.P.C., when summons have not been issued to the accused, he has no right of audience and therefore issuance of notice in the Revision Petition itself, is not in accordance with law, and hence, he prays to set aside the impugned order. 4. In support of his contention, the second petitioner/party-in-person relied on a decision in Chandra Deo Singh v. Prakash Chandra Bose & another[1] wherein it is held thus: “… It seems to us clear from the entire scheme of Ch.XVI of the Code of Criminal Procedure 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 enquiry 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. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so …”. “Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterized as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry” 5. The second petitioner also relied on a decision in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & ors.[2] wherein it is held thus: “In fact, it is well settled that in proceedings under Section 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. ..” 6. The second petitioner also placed strong reliance on a decision in Rarkesh v. State of Haryana[3], wherein it is held thus: “Similarly, under Section 200, Cr.P.C., when the Magistrate before taking cognizance of the offence, that is, before issuing process, holds the enquiry, the accused has no right to be heard.” From the above decisions, it is clear that the accused has no locus standi to appear or represent before the court, especially before taking cognizance of offence. The scope of enquiry under Section 202 Cr.P.C. is for the limited purpose of finding out whether a prima facie case for issuance of process has been made out on the materials placed by the complainant by not all adverting to any defence that the accused may have and the accused is not entitled to be heard. 7. Admittedly, the complaint was not taken on file by the trial Court. No process was issued by the trial Court to the accused to appear before the said Court. Before issuing process itself, the trial court found that no prima facie case is made out for the offence punishable under Section 500 I.P.C. Challenging the said order, the Revision Petition was filed by the petitioners/complainants. Therefore, at that stage, question of issuing notice to the first respondent/accused does not arise in view of the fact no summons were ordered to be issued to the accused therein by the trial Court. Therefore, the Revisional Court ought to have disposed of the Revision Petition as to whether the trial Court committed any illegality or irregularity in arriving at the conclusion in rejecting the complaint. Therefore, issuance of the notice to the first respondent/accused is not in accordance with law. After issuance of the notices, the first respondent/accused was represented by an advocate, who advanced arguments on her behalf. When the accused has no right of audience before issuing the summons, the prayer of the petitioners should have been considered by the revisional court. Hence, the impugned order is set aside. The learned Sessions Judge is directed to dispose of the Revision Petition after hearing the complainants/party-in-person without adverting to the arguments of the learned counsel for the accused. 8. The Criminal Petition is, accordingly, allowed. ---------------- 29.7.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No. 1624 OF 2009 Date: 29.7.2010 Between: Mrs. Nirmala Kale & another …Petitioners And Ms. Anita & another …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No. 1624 of 2009 29.7.2010 [1] 1964 Vol.1 SCR 639 [2] AIR 1976 Supreme Court 1947 [3] AIR 2001 Supreme Court 2521