Gujarat High Court
Avi Bhadreshbhai Shah vs State Of Gujarat on 4 November, 2025
NEUTRAL CITATION
R/CR.MA/25108/2017 ORDER DATED: 04/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET
ASIDE FIR/ORDER) NO. 25108 of 2017
With
CRIMINAL MISC.APPLICATION (FOR AMENDMENT)
NO. 1 of 2025
In R/CRIMINAL MISC.APPLICATION NO. 25108 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 24951 of 2017
With
CRIMINAL MISC.APPLICATION (FOR AMENDMENT)
NO. 1 of 2025
In R/CRIMINAL MISC.APPLICATION NO. 24951 of 2017
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AVI BHADRESHBHAI SHAH & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR TATTVAM K PATEL(5455) for the Applicant(s) No. 1,2
MR. VIPUL B SUNDESHA(6689) for the Respondent(s) No. 2
MR. JAY A. MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/11/2025
ORAL ORDER
ORDER IN BOTH CR.M.A.s (FOR AMENDMENT) NO.1 of 2025 Amendment by way of Civil Application No.1 of 2025 in both the matters is allowed. Amendment in the respective matters to be carried out forthwith.
COMMON ORDER IN CR.M.A. NOs. 25108 & 24951 OF 2017
1. Both the petitions arise out of one and the same FIR. In view of the identical issue. Hence, with the consent of learned Page 1 of 8 Uploaded by Raj Subhash Dhobi(HC01779) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:22:10 IST 2025 NEUTRAL CITATION R/CR.MA/25108/2017 ORDER DATED: 04/11/2025 undefined advocates for both the sides, they are taken up and decided analogously by this Court.
2. Heard learned advocate Mr. Tattvam K. Patel appearing for the petitioners, learned advocate Mr. P.P. Majmudar along with learned advocate Mr. Vipul B. Sundesha for the private respondent as well as learned APP Mr. Jay A. Mehta appearing for the State in both the petitions.
3. It is to be noticed that the private respondent has filed the Criminal Misc. Application No.162 of 2012 before the Chief Metropolitan Magistrate, Ahmedabad alleging the offence under Sections 420, 465, 467, 471, 120(B) read with Section 34 of the Indian Penal Code and prayed to direct the concerned Police Officer to register the FIR under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). This application was heard and decided by the learned Chief Metropolitan Magistrate, Ahmedabad, who was pleased to dismiss the application by order dated 27.07.2012.
4. Accordingly, Revision Application under Section 397 read with Section 401 of "the Code" was preferred by the private respondent before the City Civil and Sessions Court, Ahmedabad vide Criminal Revision Application No. 242 of 2012.
5. The Revision Application was allowed by the learned City Civil and Sessions Court, Ahmedabad and the order passed by the Chief Metropolitan Magistrate, Ahmedabad dated 27.07.2012 was quashed and set aside and the revisional Court has directed concerned Police Station to register the FIR under Section 156(3) Page 2 of 8 Uploaded by Raj Subhash Dhobi(HC01779) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:22:10 IST 2025 NEUTRAL CITATION R/CR.MA/25108/2017 ORDER DATED: 04/11/2025 undefined of "the Code" against the petitioners. Thus, this order has become base for filing both the aforesaid petitions.
6. Several contentions are raised in these petitions but the solitary contention, which requires consideration is that the revisional Court, without joining the present petitioners as party respondent, passed adverse order against them, which at the outset, reaches the mandate of Section 401 of "the Code", well explained by the Supreme Court in the case of Manoharbhai Muljibhai Kakadia and another v. Shaileshbhai Mohanbhai Patel & others, reported in 2012 (10) SCC 517 and later on by the Supreme Court in the case of Subhash Sahebrao Deshmukh v. Satish Atmaram Talekar & others, bearing neutral citation 2020 INSC 433, more particularly in para 7, which reads as under:-
"7. The restoration of the complaint by the Additional Sessions Judge was undoubtedly to the prejudice of the appellant. The right of the appellant to be heard at this stage need not detain us any further in view of Manharibhai (supra) observing as follows:
'53.. . . We hold, as it must be, that in a revision petition preferred by the 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 the crime is entitled to hearing by the Revisional Court. In other words, where the 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 Page 3 of 8 Uploaded by Raj Subhash Dhobi(HC01779) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:22:10 IST 2025 NEUTRAL CITATION R/CR.MA/25108/2017 ORDER DATED: 04/11/2025 undefined 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 the crime have, however, no right to participate in the proceedings nor are they 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.'"
6.1 One more judgment which can be relied in case of Chhatradhari Ram Vs State of Jharkhand & Another, reported in (2016) 2 AICLR 673, more particularly para 4 thereof, which reads as under:-
"4. Law on the point stands settled by a judgment of three-Judge Bench of this Court in the case of Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors., (2012) 10 SCC 517. Relevant paras 46, 48 and 53 of the same are quoted hereunder:
"46. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, up to the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs 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. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the Page 4 of 8 Uploaded by Raj Subhash Dhobi(HC01779) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:22:10 IST 2025 NEUTRAL CITATION R/CR.MA/25108/2017 ORDER DATED: 04/11/2025 undefined complaint under Section 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 unless he had an opportunity of being heard either personally or by pleader in his own defence.
xxx xxx xxx
48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203 although it is at preliminary stage nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get the right of hearing before the Revisional Court although such order was passed without their participation. The right given to "accused" or "the other person" under Section 401(2) of being heard before the Revisional Court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Section 200, 202, 203 and 204. In the revision Page 5 of 8 Uploaded by Raj Subhash Dhobi(HC01779) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:22:10 IST 2025 NEUTRAL CITATION R/CR.MA/25108/2017 ORDER DATED: 04/11/2025 undefined petition before the High Court or the Sessions Judge at the instance of 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 express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage. xxx xxx xxx
53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan v. R. Vidhya Sekar, (2004) 13 SCC 472, Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd., (2009) 2 SCC 363 and A. N. Santhanam v. K. Elangovam, (2012) 12 SCC 321. 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 the 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 the crime have, however, no right to participate in the proceedings nor are they 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."Page 6 of 8 Uploaded by Raj Subhash Dhobi(HC01779) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:22:10 IST 2025
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7. In view of the above, since the specific and jurisdictional defect is found in the order passed by the revisional Court, this Court, without entertaining the other merits of the case, deems it fit to allow these petitions directing the learned Sessions Court to hear the revision application after joining the petitioners as party.
8. For the foregoing reasons, these petitions are allowed.
9. Order passed by the Revisional Court in Criminal Revision Application No. 242 of 2012 dated 22.01.2013 is hereby quashed and set aside. Revision is restored back to the proceedings before the City Civil and Sessions Court, Ahmedabad. Petitioners are ordered to be joined as party respondents.
10. The private respondent herein is directed to provide the copy of revision and other documents annexed with the Revision Application to the petitioners herein.
11. Necessary amendment to be carried out in the revisional proceedings within 4 weeks from it being listed before the Sessions Court.
12. Since the issue is raised in the year 2012, on the joint request of the learned advocates for both the sides, the concerned City Civil and Sessions Court is directed to decide the revision afresh within 6 months from the date of order of this Court, without being influenced by any of the orders passed by this Court. It is needless to say that all the rights and contentions of the parties are kept open.
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13. Direct service is permitted. Rule made absolute to the aforesaid extent. Registry is directed to keep the copy of this order in all the matters.
(J. C. DOSHI, J.) Raj Page 8 of 8 Uploaded by Raj Subhash Dhobi(HC01779) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:22:10 IST 2025