Saturday, 20 June 2020

Supreme Court: Session Court should hear accused in revision petition against the dismissal of the protest petition

 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 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.”
8. The impugned orders dated 6.03.2009 and 08.10.2007 are
held to be unsustainable in their present form. They are therefore
set aside. The matter is remanded to the Additional Sessions Judge,
Greater Mumbai to hear the revision application afresh after notice
to the appellant also and then pass a fresh reasoned and speaking
order to his satisfaction.

NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2183 OF 2011

SUBHASH SAHEBRAO DESHMUKH Vs  SATISH ATMARAM TALEKAR

NAVIN SINHA, J.
Dated:June 18, 2020

The petitioner, an accused in the complaint case, is aggrieved
by the refusal of the High court to interfere with the order of the
Additional Sessions Judge, setting aside the order of the Special
Metropolitan Magistrate, dismissing the complaint under Section
203 of the Code of Criminal Procedure (hereinafter referred to as
"the Cr.P.C.”)

2. Learned counsel for the appellant submits that respondent
no.l filed a complaint under Section 156(3) Cr.P.C. alleging offences
under Sections 420, 467, 468, 120B,
114 and 34 of the Indian
Penal Code. The Magistrate called for a report from the police. The
police, after investigation submitted report that the allegations were
false. Notice was issued to the complainant, who then filed a protest
petition seeking an order of cognizance and issuance of process.
The Magistrate, after hearing the respondent and not being satisfied
dismissed the complaint. Aggrieved, the complainant preferred a
criminal revision before the Additional Sessions Judge in which the
appellant was impleaded as a party respondent. No notice was
issued to the appellant. The revision application was allowed and
the matter remanded to the Magistrate. Relying upon Sections 399
and 401(2) Cr.P.C, it was submitted that no order to the prejudice
of the appellant could have been passed without hearing him after
dismissal of the complaint. The Additional Sessions Judge erred in
passing the remand order in exercise of revisional jurisdiction
placing reliance on Section 398 Cr.P.C. to direct further

investigation by the Magistrate. The High Court further erred in
holding that no opportunity of hearing was required under Section
398 Cr.P.C. if the direction for further inquiry was being passed
after dismissal of the complaint as opposed to a discharge.
Effectively, the complaint case was therefore restored to the
prejudice of the appellant. Reliance was placed on Manharibhai
Patel and others, 2012 (10) SCC 517.
3. Learned counsel for respondent no.l submitted that the
dismissal of the application under Section 156(3) Cr.P.C. at the precognizance
stage, does not vest any right in the accused to be heard
at the stage of remand in revision for further inquiry. Merely
because the Magistrate may have called for a police report, it does
not tantamount to taking cognizance. There has been no dismissal
of the complaint under Section 203 Cr.P.C., entitling the appellant
to be heard in the revisional jurisdiction.

4. We have considered the submissions on behalf of the parties.
The complaint filed by respondent no.1 before the Magistrate under
Section 156(3) Cr.P.C. alleged that by cheating and forging his
signatures on blank papers, he had been shown as the sole
proprietor of M/s Shivam Wines, when in fact he was a partner and
his resignation from the partnership had also been forged.
Consequentially, in the recovery suit filed by the Bank leading to
the grant of recovery certificate, his private property came to be
auctioned.
5. The Magistrate, under Section 156(3) Cr.P.C. directed the
police to register a criminal case, investigate and submit police
report in 90 days. The police after investigation submitted a report
dated 05.04.2006 under Section 173(2) that the accusations were
false. The Magistrate did not consider it necessary to proceed
under Section 173(8) and issued notice to the complainant as to
why the final report by the police be not accepted. The respondent
filed a protest petition which was registered as a complaint case.

The Magistrate, after hearing the respondent, and not being
satisfied, dismissed the complaint under Section 203 Cr.P.C. on
13.07.2006. It was therefore not a rejection of an application under
Section 156(3) Cr.P.C. as was sought to be urged on behalf of the
respondent. The Additional Sessions Judge, in a revision preferred
by the respondent against the dismissal of his complaint, set aside
the dismissal order on 08.10.2007, effectively restoring the
complaint case arising out of a protest petition and directed further
inquiry by the Magistrate. The High Court declined to interfere with
the order.
6. In B. Chandrika vs. Santhosh, (2014) 13 SCC 699, this
Court observed as follows:
“5. The power of the Magistrate to take cognizance
of an offence on a complaint or a protest petition
on the same or similar allegations even after
accepting the final report, cannot be disputed. It is
settled law that when a complaint is filed and sent
to police under Section 156(3) for investigation and
then a protest petition is filed, the Magistrate after
accepting the final report of the police under
Section 173 and discharging the accused persons
has the power to deal with the protest petition.
However, the protest petition has to satisfy the

ingredients of complaint before the Magistrate
takes cognizance under Section 190(1)(a) CrPC.”
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 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.”
8. The impugned orders dated 6.03.2009 and 08.10.2007 are
held to be unsustainable in their present form. They are therefore
set aside. The matter is remanded to the Additional Sessions Judge,
Greater Mumbai to hear the revision application afresh after notice
to the appellant also and then pass a fresh reasoned and speaking
order to his satisfaction. The appeal is allowed.
…….………………………..J.
(NAVIN SINHA)
……………………………….J.
(INDIRA BANERJEE)
New Delhi,
June 18, 2020

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