Manharibhai Muljibhai Kakadia & Anr vs Shaileshbhai Mohanbhai Patel & Ors

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 financial loss and physical and mental agony to the complainant and his family members and have deceived the complainant and his family members by obtaining huge financial advantage by taking possession of the complainant’s property. It was, thus, alleged that the appellants have committed offences punishable under Sections 420, 467, 468, 471 and 120-B, IPC.

4. The CJM in exercise of his power under Section 202 of the Code by his order dated 18.6.2004 directed the enquiry to be made by the Police Inspector, Umra Police Station, into the allegations made in the complaint and submit his report within thirty days therefrom.

5. The Investigating Officer investigated into the matter and submitted ‘C’ Summary Report. In the opinion of the Investigating Officer, the disputes between the parties were of civil nature and no offence was made out.

8. On 5.8.2005, the Single Judge of the Gujarat High Court dismissed the application made by the appellants. It is from this order that present appeal has arisen.

(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

41. Before we deal with the above question further, some of the decisions of the High Courts upon which heavy reliance was placed by the counsel for the respondent no. 1 may be noticed. In Panatar Arvindbhai Ratilal12, a Single Judge of the Gujarat High Court had an occasion to consider locus standi of the suspects at the stage of grant of ‘C’ Summary. That was a case where the police did not initiate any investigation for quite some time in respect of an offence registered with the police station. The complainant approached the CJM wherein direction for investigation by the police was made. The police after investigation submitted report and sought ‘C’ Summary. The complainant objected to the report submitted by the police as to ‘C’ Summary. The Magistrate allowed the suspects to be heard against which the complainant filed the criminal revision before the Sessions Judge. The Sessions Judge agreed with the complainant and overruled the order of the Magistrate allowing the accused to make submission. There were seven accused in the complaint and two of them approached the High Court against the order of the Sessions Judge. The Single Judge of the High Court confirmed the order of Sessions Judge. The Magistrate thereafter heard the complainant and granted ‘C’ Summary. Against that order, the complainant filed a revision before the Sessions Judge. Two accused who had earlier challenged the order of the Sessions Judge before the High Court applied to the Sessions Judge for permission to make submission in support of the order of the Magistrate. The Sessions Judge allowed the application made by the accused against which order the complainant filed criminal revision before the High Court. The High Court noted the provisions contained in Sections 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 :

46. The above decision of the Delhi High Court in Tata Motors Limited came up for consideration of that Court in Prakash Devi and others v. State of Delhi and another [Criminal Miscellaneous Case No. 2626/2009 decided on February 5, 2010]. The Single Judge, on facts of the case which were under consideration before him, observed that the Magistrate had dismissed the complaint filed by the complainant after taking into consideration the status report filed by the police. The Magistrate had not examined the complainant and other witnesses under Section 202 of the Code and in the revision filed by the complainant the revisional court had remanded the matter 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:

S. 203. Dismissal of complaint.—If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.”

(5) Where under this Code an 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.”

27. The procedural scheme in respect of the complaints made to Magistrates is provided in Chapter XV of the Code. On a complaint being made to a Magistrate taking cognizance of an offence, he is required to examine the complainant on oath and the witnesses, if any, and then on considering the complaint and the statements 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 warrant or a summons for causing the accused to be brought or to appear before him.

36. We shall immediately advert to the aspect whether or not CJM had taken cognizance of the offence and whether the dismissal of the complaint under Section 203 in the matter was post-taking cognizance.

cognizance but pre-summoning stage and those at the post- summoning stage.

49. Webster Comprehensive Dictionary [International Edition] explains “prejudice” to mean (i) a judgment or opinion, favourable or unfavourable, formed beforehand or without due examination …….; detriment arising from a hasty and unfair judgment; injury; harm.

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) of the Code. If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.

59. In view of the above position, the impugned order dated 5.8.2005 cannot be sustained and is liable to be set aside and, is set aside. The appellants’ application for impleadment in the criminal revision petition stands allowed. High Court shall now hear the matter and dispose of the criminal revision petition in accordance with law. The appeal is allowed as above.