Delhi High Court
Satish Newar vs State & Anr. on 14 May, 2015
$~34 & 35 (with two connected matters)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: May 14, 2015
+(i) CRL.M.C. 1268/2015 & Crl.M.As.4625/2015, 5851/2015
SATISH NEWAR ..... Petitioner
Through: Mr. Pawan Sharma, Advocate
versus
STATE & ANR .....Respondents
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor for respondent-
State with SI Mahendra Kohli
Mr. Saurabh Sharma, Advocate for
respondent No.2
+ (ii) CRL.M.C. 1275/2015 & Crl.M.As.4637/2015, 5768/2015
HARSH NEWAR ..... Petitioner
Through: Mr. Pawan Sharma, Advocate
versus
STATE & ANR .....Respondents
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor for respondent-
State with SI Mahendra Kohli
Mr. Saurabh Sharma, Advocate for
respondent No.2
+(iii) CRL.M.C. 5509/2014
M/S. SARDA SOLVENT EXTRACTIONS (P) LTD. .....Petitioner
Through: Mr. Saurabh Sharma, Advocate
versus
CRL.M.C. 1268, 1275, 5509 & 5516 of 2015 Page 1
GOVT. OF NCT OF DELHI & ORS. .....Respondents
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor for respondent-
State with SI Mahendra Kohli
Mr. Pawan Sharma, Advocate for
respondent No.2
+(iv) CRL.M.C. 5516/2014
M/S. SARDA SOLVENT EXTRACTIONS (P) LTD. .....Petitioner
Through: Mr. Saurabh Sharma, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. .....Respondents
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor for respondent-
State with SI Mahendra Kohli
Mr. Pawan Sharma, Advocate for
respondent No.2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Vide order of 7th May, 2015 of this Court CRL.M.Cs.5509/2014
and 5516/2014 were directed to be tagged with above-captioned first
petition i.e. CRL.M.C.1268/2015. Today, with the consent of learned
counsel for the parties, these four petitions were heard together and are
being disposed of by this common judgment. The date of 24th July, 2015
in these two connected petitions stands cancelled.
These four petitions arise out of common impugned order of 28th
CRL.M.C. 1268, 1275, 5509 & 5516 of 2015 Page 2
January, 2013 of revisional court vide which trial court has been directed
to frame the charge under Section 420 of IPC read with Sections 120-B of
IPC and 34 of IPC and in the alternative to charge under Section 406 of
IPC read with Sections 120-B and 34 of IPC.
In the above-captioned third and fourth petitions, the short ground
urged by learned counsel for petitioner-M/s. Sarda Solvent Extractions
(P) Ltd. is that the impugned order deserves to be quashed because it has
been passed without any notice to petitioner-M/s. Sarda Solvent
Extractions (P) Ltd., who is complainant party. Whereas the grievance in
the above-captioned first and second petition is that trial court's order
was assailed on the ground that the settlement, as relied upon in the
impugned order, is under challenge by M/s. Sarda Solvent Extractions (P)
Ltd. in the civil litigation and the complainant party cannot be allowed to
travel in two boats.
It is submitted that otherwise also, the ingredients of the offence for
which petitioners-Harsh Newar and Satish Newar have been charged are
lacking and on merits, the impugned order as well as trial court's order
deserves to be quashed. Lastly, learned counsel for petitioners-Harsh
Newar and Satish Newar submits that the very initiation of the
proceedings arising out of the FIR in question is bad in law as it is barred
by time.
Upon hearing and on perusal of the impugned order and the
material on record, I find that M/s. Sarda Solvent Extractions (P) Ltd. has
not been heard by revisional court.
Apex Court in Manharibhai Muljibhai Kakadia v. Shaileshbhai
Mohanbhai Patel (2012) 10 SCC 517 has held as under: -
CRL.M.C. 1268, 1275, 5509 & 5516 of 2015 Page 3
"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 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.
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53. We are in complete agreement with the view
expressed by this Court in P. Sundarrajan [(2004) 13 SCC
472 : (2006) 1 SCC (Cri) 345] , Raghu Raj Singh
CRL.M.C. 1268, 1275, 5509 & 5516 of 2015 Page 4
Rousha [(2009) 2 SCC 363 : (2009) 1 SCC (Cri) 801]
and A.N. Santhanam [(2012) 12 SCC 321 : (2011) 2 JCC
720] . 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 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."
Applying the afore-noted dictum of Apex Court to the instant case,
impugned order cannot be sustained. The challenge to the impugned
order by petitioners-Harsh Newar and Satish Newar has substance
because it does not deal with the pleas taken by them in these two
CRL.M.C. 1268, 1275, 5509 & 5516 of 2015 Page 5
petitions. Therefore, on merits also, the impugned order of 28th January,
2013 is unsustainable and is hereby quashed. Let revisional court pass a
fresh reasoned order within eight weeks, after hearing both the sides and
after dealing with the contentions raised by the respective parties.
With aforesaid directions, the above-captioned four petitions and
the applications are disposed of.
(SUNIL GAUR)
JUDGE
MAY 14, 2015
s
CRL.M.C. 1268, 1275, 5509 & 5516 of 2015 Page 6
