Gujarat High Court

Chintan K. Trivedi vs State Of Gujarat on 7 April, 2025

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                             R/SCR.A/5414/2021                                 ORDER DATED: 07/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5414 of 2021

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                                                       CHINTAN K. TRIVEDI
                                                             Versus
                                                    STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR YASH H JOSHI(6495) for the Applicant(s) No. 1
                       NOTICE SERVED for the Respondent(s) No. 2
                       MR SOHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
                       No. 1
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                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 07/04/2025

                                                            ORAL ORDER

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed to quash and set aside order dated 9.7.2015 passed by the learned Sessions Court, Gandhinagar in Criminal Revision Application No.16 of 2015.

2. Heard learned advocates for the respective parties.

3. Heard Learned Advocate Mr. Yash Joshi for the petitioner. Though process was served to Respondent No. 2, he did not remain present. I have also heard Learned APP.

4. What could be noticed that the Respond No. 2 has filed Criminal Inquiry No. 1 of 2015 before the Learned JMFC, Gandhinagar for seeking issuance of the process under Sections

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499 and 500 of the IPC against the petitioner. The inquiry was decided by the learned JMFC on 16 February 2015 by declining to issue process under Sections 499 and 500 of the IPC and accordingly it was dismissed under Section 203 of the Criminal Procedure Code. Against the said order, the complainant preferred Criminal Revision Application No. 16 of 2015 before the Learned Sessions Court, Gandhinagar. Learned Sessions Judge allowed the revision and ordered to issue summons / process against the petitioner accused. This said order is under challenge before this court.

5. Learned Advocate Mr. Joshi raised solitary contention that Learned Sessions Judge cannot issue summons / process without hearing the suspect / petitioner.

6. He referred to the judgment of the Hon'ble Apex Court in case of Manoharibhai, Muljibhai Kakadia and another versus Shaileshbhai Mohanbhai Patel and others reported in 2012(10) SCC 517. What could be noticed that before the Learned Sessions Court, maintainability of the revision was a question and in that regard, the Learned Sessions Court has framed issue No.1 which reads as under:-

"[1] Whether this Revision Application is not maintainable as the accused in complaint before the Trial Court is necessary party ?

7. The Learned Sessions Court while answering the issue No.1 in negative held following reasons which reads as under:

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"5. Learned Advocate for the applicant has relied on the judgment of the Honourable Madras High Court in case of M.C.Ganesan Vs. S.N.Rao, reported in (1987)3 Crimes (HC) 709, wherein, it is held that till the process is issued by the Trial Court, the person do not get the status of the accused and consequently he has no right of audience before the Revisional Authority. The provision to section 398 of Cr.P.C., merely states that no court shall make any direction under this section for inquiry into the case of any person who has been discharged, unless such person had an opportunity of showing cause but that contingency does not arise in this case, as this is not a case of discharge by the trial court and fact that in the reported case, the complaint was about defamation. Considering the above ratio, wherein also the original accused is not made party, the same would squarely applicable to the case.

6. It would be fruitful to refer recent judgment of the Honourable Hyderabad High Court reported in 2014 Cr.L.J. 4145, in case of R. Mahalxmi Vs. Nirmala Reddy, wherein it is held that "In other words, till the process is issued by the trial court, the petitioners do not get the status of the accused. Consequently, they have no right of audience before the revisional authority. The proviso to section 398 Crl. P.C. merely states that no court shall make any direction under this section for enquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause. But, that contingency does not arise in this case, as this is not a case of discharge by the trial court.

"The concept of natural justice has got its own natural limitations. It cannot be too vague and stretched to an extent of breaking of systems of recognised law. No person has a vested right in any course of procedure. It is for the Legislature at any time to change the mode of procedure. In construing a statute, the court is not at liberty to stretch to square with this theory or that theory. The Court has no power to go behind the intention of the Legislature on the pretext of natural'

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justice. Courts are to interpret the laws and not make them and must firmly refuse to fill in a Lacuna even though the refusal may work hardship in an individual case. In a revision filed against an order of dismissal under section 203, Crl. P.C., the Sessions Judge need not give notice to the accused. This is the guideline laid down by the statute. No restraints and conditions, which the Legislature itself did not think proper or necessary to impose can be brought in by the back door on the correct concept of natural justice. The 41st Report of the Law Commission, Para 32. It is relevant to extract Para 32 of the 41st Report of the Law Commission subject: on the "One suggestion made to us regarding section 436 was that before an order dismissing a complaint under section 203 is disturbed, notice should go to the accused person so that he can urge what he likes in support of the dismissal order. This was sought to be supported by the principle of natural justice. We do not, however, see how such an accused person can be called, 'a party to the proceedings' at that stage, and the Supreme Court has ruled at Chandra Deo v. Prakashchandra9, that it is hardly proper to permit him to intervene the proceedings, further, in number of cases it will happen that notice to him will seem unnecessary trouble and expense to a person who may be wholly innocent. If Magistrate has, on considering the facts found that there is no ground for proceeding against any person and therefore dismissed the complaint summarily there is hardly any reason for the revision court to call anyone to court as an accused or as a respondent until, of course, after a further enquiry has been made and that inquiry justifies the issuing of process."

It is held that it is clear from the above report of the Law Commission that the guideline for the statute is that in a revision against the order of dismissal of a complaint under section 203, Crl. P.C.. no notice need be given to the accused.

It is further held that the order passed by the Sessions Judge in the revision setting aside the order passed under section 203 of the Code directing the Magistrate

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to take the case on file and issue process, without serving notice on the petitioner cannot be said to be in any way illegal or improper and it cannot be said that the same should be set aside and the petitioner should be given an opportunity of re-hearing the revision. Hence, issue No.1 is decided in negative."

8. On going through the findings of the Learned Sessions Court, what could be noticed that the Learned Sessions Court believed that the accused has no right of audience at the time of issuance of process. This could be a correct finding on the part of the Learned Sessions Court if the proceeding is going on before the Learned Trial Court under section 200 of the CrPC where inquiry was held for the private complaint. In a case if the order of rejecting issuance of summons / process has been challenged before the Learned Sessions Court in revision, it would be incumbent upon the Learned Sessions Court to join the suspect as a party respondent, and to hear him/her.

9. Section 401 (2) of the CRPC is clear on this aspect which reads as under:

"SECTION 401 : High Court's powers of revision

(1) xxxx (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."

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10. In the present case, while ascribing the reason of maintainability of the Criminal Revision Application, perhaps the learned Sessions Court has failed to read section 401(2) of the Code of Criminal Procedure, 1973, which mandates that the accused should be given an opportunity of hearing before issuance of the process.

10. In Manharibhai Kakadia (supra), the Hon'ble Apex Court addressed the issue after surveying the authorities and settled legal position, which reads as under:-

"37. The question now is, in a matter of this nature where complaint has been dismissed by the Magistrate under Section 203 post-cognizance stage and pre-issuance of process, whether on challenge to the legality of the order of dismissal of complaint being laid by the complainant in a revision application before the High Court, the persons who are arraigned as accused in the complaint have a right to be heard.

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, upto 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

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right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. The 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.

47. Three expressions, "prejudice", "other person" and "in his own defence" in Section 401(2) are significant for understanding their true scope, ambit and width. 47.1 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 :

Prejudice - "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)".

47.2 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.

47.3. 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. 47.4. "Prejudice" is generally defined as meaning "to the harm, to the injury, to the disadvantage of someone". It also means injury or loss.

47.5. 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

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complaint to have been involved in an offence although they may not be termed as accused at a stage before issuance of process.

47.6 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.

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 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

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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.

53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A. N. Santhanam . 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. "

11. In view of above and applying the ratio to the facts of the case on hand, the impugned order passed by the learned Sessions Court is required to be quashed and set aside.

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12. Resultantly, the petition is allowed and the impugned order is hereby quashed and set aside. Criminal Revision Application No.16 of 2015 is remanded / restored to its original file before the concerned learned Sessions Court, Gandhinagar. The learned Sessions Court shall decide the matter afresh after joining the petitioner as party respondent as early as possible, preferably within six months from the date of receipt of this order without being influenced by this order.