Monday 23 August 2021

Whether Session court can permit the addition of complainant in criminal revision as per 401(2) Cr.P.C?

It is the grievance of the learned senior counsel for the petitionersvide the impugned order the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2, whereas the complainant has no role to play before learned Revisional Court and its only the learned Public Prosecutor for the State, who has to take realm of the case before learned Session’s Court. It is argued per sub-section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has an liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2.

 Section 401(2) and 403 CrP C are as under:-

“401. High Court' s Powers of revisions.

(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.

(3) to (5) xxxx

403. Option of Court to hear parties. Save as otherwise

expressly provided by this Code, no party has any right to

be heard either personally or by pleader before any Court

exercising its powers of revision; but the Court may, if it

thinks fit, when exercising such powers, hear any party

either personally or by pleader.

8. A bare perusal of Section 401(2) Cr P C would show other personmust be akin to an accused who can participate in the proceedings. The phrase in his own defence in clause 2 of Section 401 Cr P C strengthens this belief. The complainant is never heard in his defence and hence the word „other person‟ referred to in Section 401 Cr P C is a person akin or  similarly placed to an accused. Section 403 Cr P C is also to be read in consonance with Section 401 Cr P C as it starts with the word „otherwise expressly provided by this Code‟.

Thus as is seen above „other person‟ does not include a

complainant in revision. This is a State prosecution and at the highest the complainant can be a witness to the proceedings and can participate through learned APP for the Sate but cannot be a party to the revision petition. The judgments relied upon by the respondents did not consider A.K.Subhaiah‟s (supra). I agree with the petitioner if we allow the complainant to participate before the Session’s it shall change the entire nature of the proceedings from criminal to civil and hence shall hamper independence of prosecution. The complainant can at best assist the prosecution, though prosecution in such a case has to make an independent call.

15. The law laid down in A.K.Subbaiah & Ors (supra) hold good even for today. The judgments referred to by the respondent No.2 are mostly under Section 482 Cr.P.C. wherein the High Court may even implead the complainant in revision. The power under Section 482 Cr.P.C. is quite different than the one under Section 401 Cr.P.C. as nothing limits such power of the Court under Section 482 Cr.P.C. and it is far wider than under Section 401(2) Cr.P.C. but Session’s Court does not have such parallel power and it cannot implead anyone, except those mentioned under Section 401(2) Cr.P.C.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on : 06th August, 2021

+ CRL.M.C. 1163/2021 & CRL.M.A.5948/2021

VIPUL GUPTA; and S. P.GUPTA  Vs STATE 

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J. (Through Video Conferencing)

1. These petitions are filed to assail an impugned order dated

05.04.2021 passed in Crl.Revision No.77/2021 (Crl.M.C. No.1163/2021)

and Crl.Revision No.76/2021 (Crl.M.C. No.1186/2021) by the learned

Principal District and Sessions Judge (HQs), Delhi (hereinafter referred

to as the Revisional Court), against the orders dated 01.02.2021,


22.02.2021 and 06.03.2021 passed by the learned Additional Chief

Metropolitan Magistrate, Tis Hazari Courts, Delhi in case State vs

S.P.Gupta & Others.

2. It is the grievance of the learned senior counsel for the petitioners

vide the impugned order the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2, whereas the complainant has no role to play before learned Revisional Court and its only the learned Public Prosecutor for the State, who has to take realm of the case before learned Session’s Court. It is argued per sub-section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has an liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2.

3. The main issue thus raised is qua locus standi. It is argued by

respondents the power of revision, admittedly, is a suo moto power of

correction and supervision over the subordinate Courts; to call for the

records and to correct orders. One can say it is discretion of the

revisional Court to hear any one whom it needs to hear. It is argued Cr P

C when amended in 2009, victim was given right to have a say in

criminal proceedings. The question is if such right can be extended to

revisions before the learned Session’s Court. Reference was made to


Pandharinath Tukaram Raut vs. Manohar Sadashiv Thorve

MANU/MH/1823/2014 wherein the Court held:-

7. Before going further, the issue regarding the

maintainability of the Criminal Revision Application, as

raised by Mr. Bhushan Deshmukh, the learned Counsel for

the Respondent Nos. 1, 2, 5 and 9, be dealt with.

Mr.Deshmukh placed reliance on the decision of the

Supreme Court of India in the case of Subramanian Swamy

and Ors. V/s. Raju, Through Member, Juvenile Justice

Board and Anr., reported in MANU/SC/0849/2013 : (2013)

10 SCC 465, to support his contention that in a prosecution

initiated by the State, a third party / stranger would not

have any right to participate. I have gone through the said

reported judgment and I am unable to hold that this

judgment lays down a proposition that in a prosecution

initiated by the State, a private party has no right to

challenge the order passed in the course of said

prosecution by filing an application for revision. Moreover,

in this case, the Applicants are the victims of the alleged

offences and by no stretch of imagination can be said to be

'strangers' to the proceedings. Mr. Deshmukh also placed

reliance on a decision rendered by a learned Single Judge

of the Karnataka High Court in the case of M/s. Kerala

Transport Co. Vs. D.S. Soma Shekar and Ors., reported in

MANU/KA/0027/1981 : 1982 CRI. L.J. 1065, in support of

his contention that the First Informant has no locus standi

to file a revision in a prosecution initiated by the State.

Indeed, it appears that, the observations made by the

learned Single Judge support the contention advanced by

Mr. Deshmukh, but, with respect, I am unable to agree

with the view expressed by the learned Judge in the said

judgment. It is clear from the scheme of the relevant

provisions that the revisional power belongs basically to

the Court. The Court can call for the record and

proceedings even 'suomotu' and revise the order. When the

court has been given powers to revise an order 'suo-motu',

it would be rather futile to raise the issue of locus standi. In

fact, a party applying for revision is only drawing the

attention of the court to a particular alleged illegality,

impropriety or irregularity. Moreover, as aforesaid, in this

case the Applicants are not 'strangers' to the prosecution,

in as much as, though the prosecution has been initiated by

the State, the Applicants are the victims of the offence. The

Applicant No. 1 is the one who initiated the process of


criminal law against the accused persons. The contention

that the Criminal Revision Application is not maintainable

as the Applicants have no 'locus standi' to file the same is,

therefore, untenable and is rejected.

Gyan Singh vs. Respondent: State of M.P. and Ors.

MANU/MP/0212/2017 wherein the Court noted:-

10. In view of the specific provision of section 401 (2) of

CrPC, it is clear that no order prejudicial to the interest of

any other person shall be passed unless he had an

opportunity of being heard either personally or through his

Counsel. Thus, when a criminal revision is filed by an

accused against the order taking cognizance or against the

order framing charges, the complainant is required to be

heard. Whenever, any order which is in favor of the

complainant is challenged by the accused, then the

complainant is required to be heard.

Himanshu Adya vs. State of MP & Ors. MANU/MP/0213/2017

wherein the Court noted:-

“12. This Court in the case of Gyan Singh v. State of M.P.

[2017(2) JL J 71 : Criminal Revision No. 1215 of 2015,

order dated 28.2.2017], has held as under:

In view of the specific provision of section 401

(2) of CrPC, it is clear that no order prejudicial

to the interest of any other person shall be

passed unless he had an opportunity of being

heard either personally or through his Counsel.

Thus, when a criminal revision is filed by an

accused against the order taking cognizance or

against the order framing charges, the

complainant is required to be heard. Whenever,

any order which is in favor of the complainant

is challenged by the accused, then the

complainant is required to be heard.

Isa Khan & Ors. vs. State of Rajasthan & Ors.

MANU/RH/0985/2006 wherein the Court noted:-

8. xxxx

The expression "other person" in Sub-section (2) of Section

401 of the Code includes a complainant. Learned Counsel

has placed reliance on a decision of this Court in Hazi

Mohd. Shafi v. State of Rajasthan & Anr., 2002 (1) RCrD

172 (Raj.), wherein this Court held that no order under

Section 401 (2) of the Code shall be made to prejudice the

accused or other person unless he has had an opportunity

of being heard either personally or through Counsel in his

own defence. The word "other person" includes the

complainant. Thus, without affording an opportunity of

hearing to the complainant, the revisional Court committed

apparent error in setting aside the order passed by the

learned trial Court.

Niranjan Lal vs. Attar Singh (1990) Supp SCC 57 wherein the

Court noted:-

2. We are distressed that the High Court has allowed the

revisional application preferred by Attar Singh and Satvir

Singh s/o Mani Ram - respondents 1 and 2 and reduced the

sentence imposed on them by the lower appellate court from

one of rigorous imprisonment of 18 months to that of

sentence undergone (respondents had not remained in jail

for a single day). It passes our comprehension how the High

Court has persuaded itself to pass such an order without

even issuing a notice to the State or the original

complainant. We can only hope that what has been done by

the High Court in this case will not be repeated in future.

The High Court which day in and day out quashes orders

passed by the executive officials without complying with

principles of natural justice has un understandably allowed

this revisional application without hearing the other side.

The appeal is, therefore, allowed. The order passed by the

High Court is set aside. Both the shall surrender to the

custody in order to undergo the sentence imposed by the

lower appellate court subject to any order for bail or final

order that may be passed by the High Court upon hearing

the parties. The High Court will list the matter for hearing

only after respondents 1 and 2 surrender to custody. The

High Court will thereafter dispose of the matter in

accordance with law with expedition.

4. Hence, the arguments of the respondent is the impugned order is

perfectly justified and petitions need to be dismissed at the outset.

5. Heard.


6. I have gone through the decisions referred to above. Pandharinath

Takaram Rout (supra) is the judgment on a revision pending before the

High Court and not before the Session’s Court. Further, Gian Singh

(supra) and Himanshu Adya (supra) were the orders in the revision in

private cases and not in the cases filed by the State, but whereas present

one is a State case. No doubt, when this Court has to deal with the

revision under Section 482 Cr P C, the victim can, of course, join the

proceedings, but this position of law is different in revision before the

Session’s Court, viz in a State case because of bar under Sections 401(2)

Cr.P.C.

7. Section 401(2) and 403 CrP C are as under:-

“401. High Court' s Powers of revisions.

(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.

(3) to (5) xxxx

403. Option of Court to hear parties. Save as otherwise

expressly provided by this Code, no party has any right to

be heard either personally or by pleader before any Court

exercising its powers of revision; but the Court may, if it

thinks fit, when exercising such powers, hear any party

either personally or by pleader.

8. A bare perusal of Section 401(2) Cr P C would show other person

must be akin to an accused who can participate in the proceedings. The phrase in his own defence in clause 2 of Section 401 Cr P C strengthens this belief. The complainant is never heard in his defence and hence the word „other person‟ referred to in Section 401 Cr P C is a person akin or  similarly placed to an accused. Section 403 Cr P C is also to be read in consonance with Section 401 Cr P C as it starts with the word „otherwise expressly provided by this Code‟.

9. I may here refer to submissions made by the learned senior counsel

for the petitioners stating interalia Section 401(2) Cr P C does not give

any right to the complainant to be heard in revision before the learned

Session’s Court and hence the impugned order suffers from illegality. In

support of their arguments, they relied upon Kerala Transport Co. vs.

D.S.Soma Shekar and Ors. MANU/KA/0027/1981; Indu Bala & Ors. vs.

Delhi Administration and Ors. 1991 CRL.J.1774; L.K.Jain and another

vs. State 2001 CRL.J. 259; Shiv Kumar vs. Hukam Chand & Anr. 1999

(2) JCC (SC) 466; Mahabunnisa Begum vs. State of Telangana and Ors.

MANU/AP/1128/2017; The State of Andhra Pradesh vs. Mahabunnisa

Begum and Ors. Special Leave to Appeal (Crl.) 2240/2018; and

Dhariwal Industries Ltd. vs. Kishore Wadhwani & Ors. 2016(8) SCALE

735.

10. The crux of the aforesaid decisions is (i) the word other person

under Section 401(2) Cr P C is either an accused or a person similarly

placed to the accused; (ii) in a Session’s trial, the complainant can only

assist the learned Public Prosecutor at the stage of enquiry, trial or appeal

and may submit written arguments only after the evidence is closed; (iii)

the complainant cannot be given an opportunity of being heard in an

anticipatory bail application; (iv) in a case filed on a police report, the

public person has no locus standi after the cognizance is taken; (v) in a

Magistrate triable case, permission may be granted to the person

concerned to appoint any counsel to conduct the prosecution on his

behalf; (vi) the prosecution in Session’s case cannot be conducted by any

person other than the learned Public Prosecutor; and (vii) the reason need

be given if an order Section 401(2) Cr PC is passed to the prejudice of

the accused.

11. Further I may also refer to A.K.Subbaiah & Ors vs. State of

Karnataka & Ors. 1987 SCC (4) 557 wherein the Court held as under:

12. It is not in dispute that these two respondents Nos. 2

and 3 were not parties before the court below. Learned

counsel for the appellants contended that the proceedings

have been launched by the State Govt. on behalf of

respond- ent No. 2 and therefore indirectly respondent No.

2 being the complainant is a party to the proceedings.

That is too tall a proposition. The prosecution is launched

by the State Government and before the court below i.e.

the trial court the only parties are the petitioners who are

accused persons and the State Govt. which stands in the

place of a complain- ant. There are prosecution witnesses

and there may even be defence witnesses. But the

witnesses are not parties to the proceedings and

admittedly these two respondents who have been deleted

by the impugned order of the High Court were not parties

before the court below.

13. xxxx

Sub-clause 2 of this Sec. 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. Learned counsel for the appellants was

not in a position to contend that even if any contention of

the appellants is accepted and the High Court accepts the

revision petition as it is, there will be any situation where

an order may be passed against these two respondents or

they may be joined as parties to the proceed- ings.

Reference to Section 401 clause 2 is of no consequence so

far as these two respondents are concerned.

16. In the light of the discussions above therefore it is

clear that the question about anyone else being

instrumental in getting the prosecution launched or

questions which are foreign are not to be considered in a

revision where the issue of process is being challenged

and therefore the further question as to whether the party

against whom an allegation is made is or is not a

necessary party in the proceedings also is of no avail. The

scope of the revisional jurisdiction of the High Court as

we have discussed earlier clearly indicates that the High

Court is only expected to see the legality, correctness or

the propriety of the order, which is an order of issue of

process, these things could only be seen by looking into

the complaint and the accompanying papers and evidence

if any which were before the court below. In our opinion,

the High Court was right in deleting the names of the two

respondents.”

12. In Hindustan Times Limited vs Ashok Kumar Aggarwal and

Others (1990) 96 Crl L J 1563 wherein the Court noted as under:-

“7 In M/s. Kerala Transport Co .v.D.S.Soma Shekar and

others, 1982 Cr. L. J. 1065, the question which was

considered was whether the complainant in a police case

could seek revision of the sentence. It was held by a Single

Judge of the Karnataka High Court that after filing the

final report under Section 173 of the Code of Criminal

Procedure, the State is the complainant before the

Magistrate and it becomes the duty of the State to prosecute

the accused. While analysing the provisions of Sections 397

to 401 of the Code of Criminal Procedure, it was observed

that the complainant has no right whatsoever beyond the

right to bringing it to the notice of the court the facts as to

whether there has occurred any illegality or impropriety

in the finding, sentence or order recorded by a criminal

court and while referring to Section 403 of the said Code,


it was held that there is no right of hearing to be given to a

complainant. There is no legal right of hearing conferred

on the complainant. However, the question which has

arisen for decision before this Court was not raised in this

judgment. It is true that if the sentence awarded by the

Magistrate is to be held to be totally wrong, this Court has

power to modify the order of the Magistrate. I have come

across a judgment of the Punjab & Haryana High Court in

Harjinder Singh v. State of Punjab, 1980 PLR 435 where a

Single Judge for offences punishable under Sections 408

and 409 of the Indian Penal Code thought it fit to give

benefit of Probation of Offenders Act. However, in that

case the accused was aged about 25 years at the time of

commission of the offence.

13. Now, Babloo Pasi vs. State of Jharkhand and Ors. 2008 (13) SCC

133 relied upon by the respondent is also misplaced as revision in Babloo

Pasi (supra) case was filed under Section 53 of the Juvenile Justice Act

and not under Section 401 Cr.P.C. The relevant paras of the judgment

would clarify this :

“8. Section 52 of the Act provides that any person

aggrieved by an order made by a competent authority

under the Act may prefer an appeal to the Court of

Sessions. Section 53 of the Act confers on the High Court

the revisional jurisdiction to satisfy itself as to the legality

or propriety of any order passed by the competent

authority or Court of Sessions. The Section reads as

under:

53. Revision.- The High Court may, at any time,

either of its own motion or on an application

received in this behalf, call for the record of any

proceeding in which any competent authority or

Court of Session has passed an order for the purpose

of satisfying itself as to the legality or propriety of

any such order and may pass such order in relation

thereto as it thinks fit:

Provided that the High Court shall not pass an order

under this section prejudicial to any person without

giving him a reasonable opportunity of being heard.

9. From a bare reading of proviso to the Section, it is

plain that in exercise of its revisional jurisdiction the High

Court cannot pass an order, prejudicial to any person

without affording him a reasonable opportunity of being

heard. At this juncture, it would be profitable to note that

Section 54 of the Act also prescribes the procedure to be

followed while dealing with inquiries, appeals and

revisions under the Act. Sub-section (2) thereof stipulates

that save as otherwise expressly provided under the Act,

the procedure to be followed in hearing revisions under

the Act, shall be as far as practicable in accordance with

the provisions of the Code of Criminal Procedure, 1973

(for short `the Code'). Sub-section (2) of Section 401 of the

Code contemplates that no order under the said 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. Thus as is seen above „other person‟ doesnot include a

complainant in revision. This is a State prosecution and at the highest the complainant can be a witness to the proceedings and can participate through learned APP for the Sate but cannot be a party to the revision petition. The judgments relied upon by the respondents did not consider A.K.Subhaiah‟s (supra). I agree with the petitioner if we allow the complainant to participate before the Session’s it shall change the entire nature of the proceedings from criminal to civil and hence shall hamper independence of prosecution. The complainant can at best assist the prosecution, though prosecution in such a case has to make an independent call.

15. The law laid down in A.K.Subbaiah & Ors (supra) hold good even

for today. The judgments referred to by the respondent No.2 are mostly

under Section 482 Cr.P.C. wherein the High Court may even implead the

complainant in revision. The power under Section 482 Cr.P.C. is quite

different than the one under Section 401 Cr.P.C. as nothing limits such

power of the Court under Section 482 Cr.P.C. and it is far wider than


under Section 401(2) Cr.P.C. but Session’s Court does not have such

parallel power and it cannot implead anyone, except those mentioned

under Section 401(2) Cr.P.C.

16. Thus, in the circumstances, the impugned order passed by the

learned Revisional Court is set aside. However, this shall not disentitle the complainant to appear before the learned Revisional Court in the pending revision petitions and to assist the learned APP for the State and / or plead their case through the learned APP.

17. The petition(s) stand disposed of in above terms. Pending

application, if any, also stands disposed of.

YOGESH KHANNA, J.

AUGUST 06, 2021


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