REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1532     OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 1368 OF 2007

PRABHA MATHUR & ANR. … APPELLANTS

VERSUS

PRAMOD AGGARWAL & ORS. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J.

1. Leave granted.

2. The present appeal is directed against

the judgment and order dated September 26, 2006

passed  by  the  High  Court  of  Judicature  at

Allahabad in Criminal Writ Petition Nos. 9952-

53 of 2006. By the said order, the High Court

set aside the order dated July 16, 2005, passed

by the Special Chief Judicial Magistrate, Agra

and confirmed by the Additional Sessions Judge,

Agra on July 29, 2006 dismissing the complaint

filed by the complainants against the accused

for  offences  punishable  under  Sections  420,

467, 468, 471 read with Sections 34 and 120B,

Indian  Penal  Code,  1860.  The  High  Court

remanded the matter to the trial Court with a

direction to make further inquiry in the matter

and to pass an appropriate order in accordance

with law.

3. Brief facts giving rise to the present

appeal are that Pramod Kumar Aggarwal and Smt.

Taruna Aggarwal, wife of Pramod Kumar Aggarwal

(hereinafter referred to as ‘the complainants’)

are in the business of sale and purchase of

property.  It was the case of the complainants

that they contacted the appellants herein for

purchase of the property from the appellants

since  appellants  were  having  share  in  the

property situated at village Nagla Padi Muhai

Beni Prasad Tehsil, District Agra in front of

Civil  Court,  Agra  which  was  a  joint  family

property.   The  complainants  apprised  the

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appellants-herein that they were interested in

purchasing share of the property owned by the

appellants.  They were also to purchase the

remaining  property  from  other  co-owners.

According to the complainants, the appellants

sold  their  shares  in  the  property  to  the

complainants.  Payment  was  made  by  the

complainants  to  the  appellants.  It  was  the

allegation  of  the  complainants  that  it  was

agreed  between  the  parties  that  sale-deeds

would be executed by the appellants in favour

of  purchasers. Sale-deeds  were also  drafted.

The appellants, however, did not come to the

office of Sub-Registrar, Agra for registration

of  sale-deeds.  The  appellants  induced  the

complainants, gave false assurances and cheated

them. Thereby the appellants committed offences

punishable under Sections 420, 467, 468 and 471

read with Sections 34 and 120B of the Indian

Penal Code (IPC). A complaint was, therefore,

filed  by  the  complainants  in  the  Court  of

Special Chief Judicial Magistrate, Agra, being

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Complaint Case No. 1962 of 2003.  The learned

Magistrate  after  recording  statements  of

witnesses, examining documents produced by the

complainants  and  perusing  inquiry  report

submitted by the Police held that the entire

case  was  of  a  civil  nature.   There  was,

therefore,  no  justification  for  initiating

criminal  proceedings.  He,  accordingly,

dismissed the complaint.

4. Being  aggrieved  by  the  above  order,

the  complainants  approached  the  revisional

Court  by  filing  revisions  being  Criminal

Revision Nos. 235-36 of 2005. The Additional

Sessions  Judge again  considered the  relevant

record, heard the arguments of both the parties

and held that no error was committed by the

trial Court in dismissing the complaint and the

revision petitions were liable to be dismissed.

Accordingly, both the revisions were dismissed

by the Additional Sessions Judge, Agra.

5. The complainants in view of dismissal

of  complaints and  revisions challenged  those

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orders  by instituting  Criminal Writ  Petition

Nos.  9952-53  of  2006  in  the  High  Court  of

Judicature at Allahabad.

6. The High Court without issuing notice

to the appellants herein and without affording

opportunity of being heard, allowed both the

writ petitions, set aside the order passed by

the trial court and confirmed by the revisional

court and remanded the matter to the learned

Magistrate  with  a  direction  to  make  further

inquiry  in  the  matter  and  to  pass  an

appropriate order in accordance with law.  The

said  order  is  challenged  by  the  appellants

herein.

7. On March 08, 2007, notice was issued

and further proceedings were stayed.  In the

said order, it was indicated that the notice

will state as to why the petition should not be

disposed of at the SLP stage by setting aside

the order of the High Court and by remitting it

for fresh disposal in accordance with law.

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8. Affidavits and further affidavits were

thereafter filed.  The Registry was directed to

place the matter for final disposal on a non-

miscellaneous day and that is how the matter

has been placed before us.

9. We have heard the learned counsel for

the parties.

10. The learned counsel for the appellants

contended that the order passed by the High

Court deserves to be quashed and set aside on

the ground that the order was not in consonance

with  principles  of  natural  justice  and  fair

play.  It was submitted that complaints were

filed  against  the  appellants.  Serious

allegations were leveled against them that they

had committed certain offences punishable under

the  Indian  Penal  Code  (IPC).  The  appellants

convinced the Court that the entire transaction

was in the nature of civil dispute between the

parties and criminal proceedings could not have

been  initiated.  After  applying  mind  and

considering  the relevant  material on  record,

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the trial Court was satisfied that no complaint

could have been filed against the appellants.

Accordingly, the complaint was dismissed. The

said order was confirmed in revision by the

Additional Sessions Judge. The High Court could

not  have  set  aside  the  order  passed  by  the

Courts  below  without  issuing  notice  and

affording  opportunity  of  hearing  to  the

appellants.  The  order  passed  in  the  writ

petitions in violation of principles of natural

justice deserves to be set aside.

11. It was also submitted that under the

Allahabad High Court Rules, 1952, (‘Rules’ for

short), when any person is joined as respondent

in a writ petition, notice must be issued to

such person if the Court does not reject the

petition. In the instant case, both the Courts

decided in favour of the appellants and the

complaint  filed  by  the  complainants  was

dismissed. Even if the High Court felt that the

orders passed by the Courts below were not in

consonance with law, it was incumbent on the

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High Court to issue notice to the appellants

and only thereafter an appropriate order could

have  been  passed.  Only  on  that  ground,  the

impugned order deserves to be set aside.

12. It  was  also  submitted  that  even  on

merits, the order passed by the High Court is

not sustainable.

13. The  learned  counsel  for  the

complainants supported the order passed by the

High Court and the directions issued therein.

It was submitted that whatever might have been

stated  by  the  High  Court  in  the  course  of

deciding writ petitions, the final direction to

the trial Court is to make further inquiry and

to pass an appropriate order. Such direction

could not be said to be contrary to law.

14. Regarding  notice  and  hearing,  the

counsel  submitted  that  under  the  Code  of

Criminal Procedure, 1973 (hereinafter referred

to  as  ‘the  Code’),  an  accused  has  no  locus

standi till summons or process is issued to

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him. It is not in dispute that no summons has

been issued to the appellants so far. Even the

High  Court  has  also  not  directed  the  trial

Court to issue summons to the appellants and

hence, there is no question of giving notice or

affording hearing to the appellants.  It is

only after the trial Court issues summons or

process that the appellants may challenge the

said action by taking appropriate proceedings

known  to  law.   At  this  stage,  however,

appellants cannot be heard to make grievance of

absence  of  hearing.   Upholding  of  such

contention would indirectly give the appellants

locus  standi  unknown  to  the  Code.   It  was,

therefore, submitted that the appeal deserve to

be dismissed.

15.  The  learned  counsel  for  the  State

supported the arguments advanced by the learned

counsel for the complainants.

16. Having heard the learned counsel for

the  parties,  in  our  opinion,  the  appeal

deserves to be allowed.  It is no doubt true,

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as  held  by  this  Court  in  Smt.  Nagawwa  v.

Veeranna Shivalingappa Konjalgi & Ors., (1976)

3 SCC 736 and reiterated in several other cases

that the accused has no  locus standi  at the

stage of investigation and he cannot insist for

hearing before process is issued against him.

It  was  also  held  in  Chandru  Deo  Singh  v.

Prokash Chandra Bose & Anr., (1964) 1 SCR 639

and in  Shashi Jena & Ors. v. Khadal Swain &

Anr., AIR (2004) 4 SCC 236 that at the most, an

accused may remain present with a view to be

informed as to what is going on and nothing

more. It is equally correct that if a person

has no locus standi or right of hearing, such

right  does  not  accrue  in  his  favour  by  an

indirect process.

17. On the facts and in the circumstances

of  the  case,  however,  in  our  opinion,

submission  of  the  learned  counsel  for  the

appellants is well-founded that the High Court

ought  to  have  issued  notice  and  afforded

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hearing before passing the impugned order in

writ-petitions.

18. We  have already noted that both the

Courts  decided  the  case  in  favour  of  the

appellants and the complaint was dismissed. The

complaints approached the High Court by joining

appellants as respondents. The writ petitions

were  not  dismissed  in  limine.  In  accordance

with  Rule  2  of  Chapter  XXII  of  the  Rules,

notices  ought  to  have  been  issued  to  the

appellants before the writ petitions were heard

and finally decided.

19. But even otherwise, issuance of such

notice to the appellants was necessary and was

in consonance with the principles of natural

justice and fair play.

20. Even on merits, the impugned order of

the High Court is not sustainable. The High

Court  made  certain  observations  against  the

appellants  which  have  prejudicially  and

adversely affected them.

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21. In  this  connection,  learned  counsel

for the appellants invited our attention to the

following portion of the judgment of the High

Court;

   “The  Court  of  Special  Chief Judicial  Magistrate,  Agra  dismissed the said complaint holding that simply because  the  deed  was  not  executed according to the scheduled conditions no  penal  offence  is  made  out.  The Revisional  Court  also  cited  certain authorities  and  ultimately  dismissed the Revision. I have given my anxious consideration to the matter and I find that  this  is  not  a  question  of  not executing the sale deed according to the schedule or prescribed conditions, but it shows the criminal intention of the opposite parties who obtained the money by way of case and Bank draft an did not execute the sale deed. Had the opposite  parties  not  induced  the complainant to purchase the property, the complainant would not have parted with this huge amount which is a clear case of cheating. Thus, the order of the Special Chief Judicial Magistrate, Agra and that of Revisional Court are devoid of any force. The order dated 16.7.2005  passed  by  Special  Chief Judicial  Magistrate,  Agra  and  the order  dated  29.7.2006  passed  by Revisional Court in Criminal Revision No.  235/05  and  in  Criminal  Revision No.  236/05  are  liable  to  be  set aside”. (emphasis supplied)

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22. Bare  reading  of  the  above  paragraph

shows that the High Court had given “anxious

consideration” to the matter and it found that

there was no question of not executing the sale

deed according to the schedule or prescribed

conditions  by  the  appellants  herein,  but  it

reflected “criminal intention”. It was further

observed that had the accused not induced the

complainants  to  purchase  the  property,  the

latter would not have parted with huge amount.

It was thus a “clear case of cheating”.  In

view of above findings, the High Court observed

that the Special Chief Judicial Magistrate and

Additional  Sessions  Judge  were  not  right  in

dismissing the complaints and the orders passed

by  them  were  liable  to  be  set  aside.

Accordingly, both the orders were set aside by

the High Court and direction was issued to the

trial court to make further inquiry and pass

appropriate order.

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23. We  see  considerable  force  in  the

argument  of  the  learned  counsel  for  the

appellants that the above finding as to  mens

rea  on  the  part  of  the  appellants  and  that

‘clear case of cheating’ being made out, could

not have been arrived at without issuing notice

to  the  appellants  and  without  affording

opportunity of being heard. The counsel is also

right in submitting that though final direction

to the trial Court is to hold further inquiry

and to make an appropriate order, in view of

earlier portion in the judgment  probably, no

option has been left with the trial Court, but

to issue process.  It is thus a case of fait

accompli.

24. From the record it is clear that the

present appellants were arrayed as respondents

in the writ petitions and yet the High Court

did not think it appropriate to observe natural

justice. In our opinion, the High Court could

not  have  set  aside  the  judgments  of  Courts

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below and could not have made the aforesaid

observations.

25. Hence,  without  entering  into  larger

question and expressing any opinion one way or

the other as to the right of the accused of

claiming  hearing  before  issuance  of

process/summons,  on  the  facts  and  in  the

circumstances of the case, the impugned order

passed by the High Court deserves to be set

aside and is, accordingly, set aside.

26. For  the  foregoing  reasons,  the

impugned order passed by the High Court is set

aside and the matter is remitted to the High

Court. The High Court will issue notice to the

appellants herein, afford them opportunity of

hearing  and  pass  an  appropriate  order  in

accordance with law.

27. Before parting with the matter, we may

state that we may not be understood to have

expressed any opinion one way or the other so

far as merits are concerned.  As and when the

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High Court will hear the matter, it will decide

the writ petitions without being influenced by

any observations made by it in the impugned

order or by us in this judgment.

28. Ordered accordingly.

…………………………………………………J. (C.K. THAKKER)

…………………………………………………J. (D. K. JAIN)

New Delhi. September 26, 2008.    

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