Brij Kishore Verma vs The State Of U.P.& Another.
2018 Latest Caselaw 328 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 28
 

 
Case :- CRIMINAL REVISION No. - 623 of 2005
 

 
Revisionist :- Brij Kishore Verma
 
Opposite Party :- The State Of U.P.& Another.
 
Counsel for Revisionist :- Arun Sinha,Adarsh Dixit
 
Counsel for Opposite Party :- Govt.Advocate,Sardar Alok Singh,V.N. Singh
 

 

 
Hon'ble Abdul Moin,J.

1. Heard Sri Arun Sinha, learned counsel for the revisionist and Sri Dharmendra Singh, learned Additional Government Advocate for the respondent No.1.

2. On 13.4.2018, the learned counsel for the revisionist had filed fifth supplementary affidavit bringing on record the death certificate of respondent No.2 Parasnath son of Ram Ratan and this Court had required the concerned Chief Judicial Magistrate to verify the death of respondent No.2 and submit a report in this regard. In pursuance thereof report dated 30.4.2018 has been submitted by the learned Chief Judicial Magistrate, Barabanki certifying the death of respondent No.2 Parasnath son of Ram Ratan on 13.8.2011. The said report is taken on record and this revision stands abated as against respondent No.2.

3. By means of the present revision, the revisionist has challenged the order dated 30.11.2005 passed by the learned Additional Sessions Judge, Court No.10, Barabanki by which the revisional Court set-aside the order dated 12.8.2005 and required the lower Court to register a case and order for investigation. It is pertinent to mention that by means of the order dated 12.8.2005 the application filed by the respondent No.2 under Section 156(3) of the Cr.P.C. against the revisionist had been dismissed.

4. The learned counsel for the revisionist has argued that while preferring the revision against the order dated 12.8.2005 before the learned Additional Sessions Judge, the respondent No.2 had not impleaded the revisionist as a party despite the fact that the order dated 12.8.2005 was in his favour. He has drawn the attention of this Court towards the fact that once the order dated 12.8.2005 was in favour of the revisionist and the application preferred by the respondent No.2 was rejected, consequently at the time when the revision was preferred by the respondent No.2 it was necessary that the revisionist should have been impleaded as a party but the learned revisional Court without taking into consideration non impleadment of the revisionist wrongly proceeded to set-aside the order dated 12.8.2005 and directed registration of the case against the revisionist. Moreover, the revisionist also points out that by means of the second supplementary affidavit dated 13.5.2009 the memo of revision as filed by the respondent No.2 has been brought on the record from a perusal of which it transpires that the revisionist Brij Kishore Verma was not even impleaded as a party in the said revision. In this regard, learned counsel for the revisionist has placed reliance on a judgment of Hon'ble Supreme Court in the case of Raghu Raj Singh Rousha vs. Shivam Sundaram Promoters Private Limited and another reported in (2009)1 SCC (Crl.) 801 to contend that no order can be passed to the prejudice of a person without either impleading him as a party and without hearing him and consequently Sri Sinha reiterates that once the order dated 12.8.2005 was set-aside without hearing the revisionist, consequently the order dated 30.11.2005 is illegal and cannot be sustained in the eyes of law.

5. On the other hand, learned Additional Government Advocate concedes to the law laid down by the Hon'ble Supreme Court in the case of Raghu Raj Singh Rousha (supra) and contends that it being a question of law obviously he cannot argue contrary to law and states that in fact an opportunity of hearing was a must prior to the order dated 12.8.2005 being set-aside by the learned revisional Court.

6. This Court has considered the arguments advanced on behalf of the revisionist as well as the judgment of the Hon'ble Supreme Court. A revision before the Sessions Judge is filed under the provisions of Section 397 read with Section 399 of the Cr.P.C. Section 399(2) of the Cr.P.C. reads as under:-

"399. Sessions Judge' s powers of revision. (1) .......

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub- section (1), the provisions of sub- sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) .............."

7. It thus comes out from the perusal of Section 399(2) that the provisions of Sub-section (2), (3), (4) and (5) of Section 401 of the Cr.P.C. shall also apply to such proceedings and references in the said sub-sections to the High Court are to be construed as the references to the Sessions Judge.

8. Section 401 of the Cr.P.C. reads as under:-

"401. High Court's Powers of revisions. (1) In the case of 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 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.

9. From a perusal of Section 401(2) of the Cr.P.C. it clearly comes out that no order under this section shall be made to the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Consequently, what thus clearly comes out is that the learned Additional Sessions Judge could not have passed the impugned order dated 30.11.2005 setting aside the order dated 12.8.2005 by which the application under Section 156(3) of the Cr.P.C. against the revisionist had been rejected inasmuch as the order dated 12.8.2005 was in favour of the revisionist. The learned Additional Sessions Judge proceeded in gross violation of Section 401(2) of the Cr.P.C. inasmuch as the memo of revision filed before him, as has been brought on record by means of the second supplementary affidavit, indicates that the revisionist was not even impleaded as a party. Thus the impugned order dated 30.11.2005 is in the teeth of Section 401 of the Cr.P.C. and consequently merits to be set-aside.

10. In this regard, this Court refers to the judgment of Hon'ble Supreme Court in the case of Raghu Raj Singh Rousha (supra) wherein the Hon'ble Supreme Court held as under:-

"11. One of the questions which arises for consideration is as to whether the learned Magistrate has taken cognizance of the offence. Indisputably, if he had taken cognizance of the offence and merely issuance of summons upon the accused persons had been postponed; in a criminal revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court.

12. Section 397 of the Code empowers the High Court to call for records of the case to exercise its power of revision in order to satisfy itself as regards correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. Sub-section (2) of Section 397 of the Code, however, prohibits exercise of such power in relation to any interlocutory order passed in any proceeding.

13. Whereas Section 399 of the Code deals with the Sessions Judge's power of revision; Section 401 thereof deals with the High Court's power of revision. Sub-section (2) of Section 401 of the Code reads, thus:

"(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."

14. Submission of Mr. Jaspal Singh that by reason of the impugned order the appellant was not prejudiced and in any event at the pre-summoning stage, he was not an accused, cannot be accepted. Sub-section (2) of Section 401 of the Code refers not only to an accused but also to any person and if he is prejudiced, he is required to be heard. An order was passed partially in his favour. The learned Metropolitan Magistrate has refused to exercise its jurisdiction under Section 156(3) of the Code. Had an opportunity of hearing been given to the appellant, he could have shown that no revision application was maintainable and/ or even otherwise, no case has been made out for interference with the impugned judgment.

15. In Makkapati Nagaswara Sastri v. S.S. Satyanarayan [(1981) 1 SCC 62], this Court opined that the principle of audi alteram partem is applicable in a proceeding before the High Court.

16. Yet again in P. Sundarrajan and Others v. R. Vidhya Sekar [(2004) 13 SCC 472], this Court held:

"4. On the above basis, it proceeded to consider the material produced by the petitioner before it and without taking into consideration the defence that was available to the respondent proceeded to set aside the order of the Magistrate, and directed the said court to take the complaint on file and proceed with the same in accordance with law.

5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order."

11. Similarly, the Hon'ble Supreme Court in the case of A.K. Subbaiah and others vs. State of Karnataka and others reported in (1987)4 SCC 557 has held as under:-

"Sub-clause 2 of this Section talks of a situation where an order is being passed against any person and it was contended by the learned counsel that the section not only talks of accused persons but also of "or other person unless he has had an opportunity of being heard." Apparently this sub- clause contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Sec. 401 wants to pass an order to the prejudice of such a person, it is necessary that that 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 proceedings in the court below nor is expected at any stage even after the revision to be joined as party............."

12. Likewise the Hon'ble Supreme Court in the case of Manharibhai Muljibhai Kakadia and another vs. Shaileshbhai Mohanbhai Patel and others reported in 2012(10) SCC 517 held as under:-

"40. ...... Three expressions, "prejudice", "other person" and "in his own defence" in Section 401(2) are significant for understanding their true scope, ambit and width. Black's Law Dictionary [Eighth Edition] explains "prejudice" to mean damage or detriment to one's legal rights or claims. Concise Oxford English Dictionary [Tenth Edition, Revised] defines "prejudice" as under :

"1. Preconceived opinion that is not based on reason or actual experience. > unjust behaviour formed on such a basis. 2. harm or injury that results or may result from some action or judgment. v.1 give rise to prejudice in (someone); make biased. 2. cause harm to (a state of affairs)".

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.

50. P. Ramanatha Aiyar; the Law Lexicon [The Encyclopaedic Law Dictionary] explains "prejudice" to mean injurious effect, injury to or impairment of a right, claim, statement etc.

51. "Prejudice" is generally defined as meaning "to the harm, to the injury, to the disadvantage of someone". It also means injury or loss.

52. The expression "other person" in the context of Section 401(2) means a person other than accused. It includes suspects or the persons alleged in the complaint to have been involved in an offence although they may not be termed as accused at a stage before issuance of process.

53. The expression "in his own defence" comprehends, inter alia, for the purposes of Section 401(2), in defence of the order which is under challenge in revision before the Sessions Judge or the High Court.

54. 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 underSection 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 right of hearing before 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 Sections 200, 202, 203 and 204. In the revision 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."

13. Further, the Hon'ble Supreme Court in the case of P. Sundarrajan and others vs. R. Vidhya Sekar reported in (2004)13 SCC 472 held as under:-

"5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order.

6. We have, therefore, no hesitation in allowing this appeal, setting aside the impugned judgment and remanding the matter to the High Court to issue proper notice to the appellant herein who is the respondent in the criminal revision petition before it and afford him a reasonable opportunity of hearing and to pass appropriate orders. The appeal is allowed."

15. Keeping in view the aforesaid facts and the settled proposition of law as laid down by the Hon'ble Supreme Court in the case of Raghu Raj Singh Rousha, A.K. Subbaiah and others, Manharibhai Muljibhai Kakadia and another and P. Sundarrajan and others (supra), this Court holds that the learned Additional Sessions Judge patently erred in law in not hearing the revisionist either personally or by the pleader in his defence while passing the impugned order dated 30.11.2005 and thus the order impugned is patently violative of Section 401(2) of the Cr.P.C.

16. Consequently, this revision is allowed and the order dated 30.11.2005 passed by the learned Additional Sessions Judge, Court No.10, Barabanki is set-aside.

Order Date :- 3.5.2018

Rakesh

(Abdul Moin)