REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  2054        OF 2008 [Arising out of SLP (Crl.) No. 3031 of 2008]

Raghu Raj Singh Rousha …Appellant

Versus

M/s. Shivam Sundaram Promoters (P) L & Anr. …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Whether the High Court in exercise of its jurisdiction under Sections

397 and 401 of the Code of Criminal Procedure (for short “the Code”) can

pass  an  order  in  absence  of  the  accused  persons  in  the  facts  and

circumstances  of  this  case  is  the  question  involved  in  this  appeal  which

arises out  of a judgment and order dated 25.02.2008 passed by the High

Court of Delhi at New Delhi in Criminal Revision Petition No. 116 of 2008.

3. Before adverting to the said question, we may notice the admitted fact

of the matter.

4. Respondent No. 1 is a company registered and incorporated under the

Companies  Act,  1956.   It  filed  a  complaint  petition  in  the  Court  of

Additional  Chief  Metropolitan  Magistrate,  New  Delhi  at  Patiala  House

Courts under Section 200 of the Code in respect of an offence purported to

have been committed and punishable  under Sections 323,  382,  420,  465,

468, 471, 120-B, 506 and 34 of the Indian Penal Code accompanied by an

application under Section 156(3) of the Code.   

5. It is not necessary for us to deal with the allegations made in the said

complaint petition in details.   Suffice it  to say that by reason of an order

dated 7.02.2008, the Metropolitan Magistrate, New Delhi in whose court the

aforementioned  complaint  petition  was  transferred,  refused  to  direct

investigation in the matter by the Station House Officer in terms of Section

156(3) of the Code, stating:

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“In the present case all the facts and circumstances of  the  case  are  within  the  knowledge  of  the complainant.   Both  the  complainant  and  the accused  company  have  been  dealing  with  one another  by  way  of  contractual  agreement  and  a MOU dt.  05/08/05 was entered between them as alleged in the complaint.  From the complaint and the  documents  placed  on  record,  it  appears  that there  is  some  dispute  between  the  parties  in respect of immovable property and the payments pertaining  to  the  sale  of  the  same.   The complainant submits that the accused had cheated him.  In the facts  and circumstances  of  the case there is no requirement of collection of evidence by the police at this stage as the complainant can lead  his  evidence.   In  view  of  this,  present application  u/s  156(3)  CrPC  is  dismissed.   The complaint can be conveniently dealt with U/s 200 CrPC  and  subsequent  provisions.   If  there  is necessity however of police that shall be taken u/s 202 Cr.P.C.”

On the aforementioned premise, the complainant was asked to lead

pre-summoning evidence.  It was directed to furnish list of witnesses, if any.

6. Aggrieved  by and  dissatisfied  therewith,  respondent  No.  1  filed  a

revision application before the High Court impleading the State only as a

party.  By reason of the impugned judgment, the High Court, having regard

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to the purported consent of the learned APP appearing for the State, on the

very first day of hearing, passed the following order:

“On hearing learned counsel  for the parties,  it  is agreed that the impugned order dated 7.2.2008 be set  aside  with  direction  to  the  learned  MM  to examine the matter afresh after calling for a report from the police authorities.  The police authorities to  hold  a  preliminary  inquiry  on  basis  of  the complaint made by the petitioner/ complainant and submit  a  report  to  the learned Magistrate  within three weeks from today.  The petitioner to appear before  the  trial  Court  on  24.03.2008.   Petition stand disposed of.”

Appellant is, thus, before us.

7. Mr. H.S. Phoolka, learned senior counsel appearing on behalf of the

appellant, would contend that having regard to the fact that the complaint

petition was filed in terms of Section 200 of the Code read with Section 156

(3) thereof and as the learned Magistrate directed the respondent No. 1 to

produce witnesses so as to enable it to proceed in terms of Chapter XV of

the Code, the revision application could not have been disposed of without

notice to the appellant.

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8. Mr. Jaspal Singh, learned senior counsel appearing on behalf of the

respondent  No.  1,  on  the  other  hand,  would  contend  that  the  criminal

revision  application  having  been  filed  at  the  pre-cognizance  stage,  the

accused has no right to be heard.  Strong reliance in this behalf has been

placed on  Chandra Deo Singh v.  Prokash Chandra Bose alias Chabi Bose

and another [AIR 1963 SC 1430] and  Mohd. Yousuf v.  Afaq Jahan (Smt)

and Another [(2006) 1 SCC 627].

9. A person intending to set the criminal law in motion inter alia may

file  an  application  under  Section  156(3)  of  the  Code.   When  a  First

Information Report is lodged, a police officer has the requisite jurisdiction

to investigate into the cognizable offence in terms of Section 156(1) of the

Code.  Where, however, a Magistrate is entitled to take cognizance of the

offence  under  Section  190  of  the  Code,  he  may  also  direct  that  such

investigation be carried out in terms thereof.

When a complaint petition is filed under Chapter XV of the Code, the

Magistrate has a few options in regard to exercise of his jurisdiction.  He

may take  cognizance  of  the  offence  and  issue  summons.   He  may also

postpone the issue of process so as to satisfy himself that the allegations

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made in the complaint petition are prima facie correct and either inquire into

the case himself or direct an investigation to be made by a police officer or

by such  other  person  as  he  thinks  fit  for  the  purpose  of  deciding  as  to

whether or not there is sufficient ground for proceeding.  By reason of the

aforementioned order dated 7.02.2008, the learned Magistrate intended to

inquire  into  the  case  himself.   It  is  for  the  said  purpose,  he  directed

examination of the complainant and his witnesses.

10. One of the questions which arises for consideration is as to whether

the learned Magistrate has taken cognizance of the offence.  Indisputably, if

he had taken cognizance of the offence and merely issuance of summons

upon the accused persons had been postponed; in a criminal revision filed

on behalf of the complainant, the accused was entitled to be heard before

the High Court.

11. Section 397 of the Code empowers the High Court to call for records

of  the  case  to  exercise  its  power  of  revision  in  order  to  satisfy itself  as

regards correctness, legality or propriety of any finding, sentence or order

recorded  or  passed  and  as  to  the  regularity  of  any  proceedings  of  such

inferior  court.   Sub-section  (2)  of  Section  397  of  the  Code,  however,

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prohibits  exercise  of  such  power  in  relation  to  any  interlocutory  order

passed in any proceeding.  Whereas Section 399 of the Code deals with the

Sessions Judge’s power of revision; Section 401 thereof deals with the High

Court’s power of revision.   

Sub-section (2) of Section 401 of the Code reads, thus:

“(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.”

12. Submission of Mr. Jaspal Singh that by reason of the impugned order

the appellant  was not  prejudiced and in any event  at  the pre-summoning

stage, he was not an accused, cannot be accepted.

Sub-section  (2)  of  Section  401  of  the  Code  refers  not  only  to  an

accused but also to any person and if he is prejudiced, he is required to be

heard.

An  order  was  passed  partially  in  his  favour.   The  learned

Metropolitan  Magistrate  has  refused  to  exercise  its  jurisdiction  under

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Section 156(3) of the Code.  Had an opportunity of hearing been given to

the  appellant,  he  could  have  shown  that  no  revision  application  was

maintainable  and/  or  even  otherwise,  no  case  has  been  made  out  for

interference with the impugned judgment.   

13. In  Makkapati Nagaswara Sastri v.  S.S. Satyanarayan [(1981) 1 SCC

62],  this  Court  opined  that  the  principle  of  audi  alteram  partem  is

applicable in a proceeding before the High Court.

Yet again in P. Sundarrajan and Others v. R. Vidhya Sekar [(2004) 13

SCC 472], this Court held:

“4. On the above basis,  it  proceeded to consider the material  produced by the petitioner  before  it and without taking into consideration the defence that was available to the respondent proceeded to set aside the order of the Magistrate, and directed the  said  court  to  take  the  complaint  on  file  and proceed with the same in accordance with law. 5. In our opinion, this order of the High Court is ex  facie  unsustainable  in  law  by  not  giving  an opportunity to  the appellant  herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order.”

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14. We may also notice that this Court in  Vadilal Panchal v.  Dattatraya

Dulaji Ghadigaonkar and another [AIR 1960 SC 1113], opined:

“9. The  general  scheme  of  the  aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognisance of an offence on  complaint  shall  do  on  receipt  of  such  a complaint.  Section  202  says  that  the  Magistrate may, if he thinks fit, for reasons to be recorded in writing,  postpone  the  issue  of  process  for compelling  the  attendance  of  the  person complained against  and direct  an inquiry for  the purpose of  ascertaining the truth or falsehood of the  complaint;  in  other  words,  the  scope  of  an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or  falsehood  of  the  complaint;  that  is,  for ascertaining whether there is evidence in support of  the  complaint  so  as  to  justify  the  issue  of process  and  commencement  of  proceedings against the person concerned. The section does not say that  a regular trial  for adjudging the guilt  or otherwise of the person complained against should take place at that stage; for the person complained against  can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider,  and  the  second  part  says  that  if  after considering  those  materials  there  is  in  his judgment no sufficient ground for proceeding, he

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may dismiss the complaint. Section 204 says that if  in  the  opinion  of  the  Magistrate  there  is sufficient  ground  for  proceeding,  he  shall  take steps for the issue of necessary process.”

15. The  question  again  came  up  for  consideration  before  this  Court

recently in  Divine Retreat Centre v.  State of Kerala & Ors. [AIR 2008 SC

1614],  wherein this  Court  opined that  the jurisdiction  of  the High Court

even in terms of Section 482 of the Code is not unlimited.  It was held that

even  in  a  case  where  no  action  is  taken  by the  police,  the  informant’s

remedy lies under Sections 190 and 200 of the Code.

Similar view has been expressed by this Court in Sakiri Vasu v. State

of Uttar Pradesh and Others [(2008) 2 SCC 409].

16.   It is in the aforementioned backdrop the decision of this Court in

Chandra Deo Singh (supra) may be considered.  Therein, this Court opined

that  although an accused has no right to participate unless the process is

issued, he may remain present either in person or through a counsel or agent

with a view to be informed of what is going on.  It was held that one of the

objects behind the provisions of Section 202 of the Code is to enable the

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Magistrate to scrutinize carefully the allegations made in the complaint with

a view to prevent a person named therein as accused from being called upon

to  face  an obviously  frivolous  complaint  but  that  is  not  the  stage  where

defence of an accused can be gone into, stating:

“…An enquiry  under  Section  202  can  in  no sense  be  characterised  as  a  trial  for  the  simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and  that  is  why  the  legislature  has  made  no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons  who  were  examined  as  court  witnesses were so examined at the instance of Respondent 1 but from the fact that they were persons who were alleged to have been the associates of Respondent 1  in  the  first  information  report  lodged  by Panchanan  Roy  and  who  were  alleged  to  have been  arrested  on  the  spot  by  some  of  the  local people,  they would not  have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for Respondent 1. This inference is irresistible and we hold that on this  ground,  the  enquiry  made  by  the  enquiring Magistrate is vitiated…”

It was emphasized that the question as to whether a process has to be

issued or not lies within the exclusive domain of the Magistrate so as to

enable  him to  arrive  at  a  satisfaction  that  there  is  sufficient  ground  for

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proceeding  but  not  with  a  view to  see  as  to  whether  there  is  sufficient

ground for conviction, stating:

“…No doubt,  as  stated  in  sub-section  (1)  of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but  the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the  statements  made  before  him  at  the  enquiry which would naturally mean the complaint itself, the  statement  on  oath  made  by  the  complainant and  the  statements  made  before  him by persons examined at the instance of the complainant.”

17. In  Mohd. Yousuf (supra),  whereupon reliance has been placed by

Mr. Jaspal Singh, this Court made a distinction between a pre-cognizance

stage and post-cognizance stage.  It was opined that an order under Sub-

section  (3)  of  Section  156  of  the  Code  need  not  be  passed  when  the

Magistrate  intends  to  take  cognizance.   Extensively  referring  to  the

decisions in  Gopal Das Sindhi v.  State of Assam [AIR 1961 SC 986] and

Supdt. and Remembrancer of Legal Affairs  v. Abani Kumar Banerjee [AIR

1950 Cal 437] as also other decisions,  it  was held that as in those cases

cognizance had not been taken.

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18. Here, however, the learned Magistrate had taken cognizance.  He had

applied his mind.  He refused to exercise his jurisdiction under Section 156

(3) of the Code.  He arrived at a conclusion that the dispute is a private

dispute in relation to an immovable property and, thus, police investigation

is  not  necessary.   It  was  only  with  that  intent  in  view,  he  directed

examination  of  the  complainant  and  his  witnesses  so  as  to  initiate  and

complete the procedure laid down under Chapter XV of the Code.

19. We, therefore, are of the opinion that the impugned judgment cannot

be sustained and is set aside accordingly.  The High Court shall implead the

appellant  as  a party  in  the  criminal  revision  application,  hear  the  matter

afresh and pass an appropriate order.

20. The Appeal is allowed.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; December 17, 2008

.    

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