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CASE NO.: Appeal (crl.)  927 of 2007

PETITIONER: Smt. Subha Raj and Anr

RESPONDENT: Sankar Sarkar and Anr

DATE OF JUDGMENT: 24/07/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL  APPEAL NO.   927            OF 2007 (Arising out of SLP (Crl.) No.2535 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Calcutta High Court allowing the  application under Section 401 read with Section 402 of the  Code of Criminal Procedure, 1973 (in short the ’Code’).  

3.      The main grievance in support of the petition is that the  appellants were not granted opportunity of being heard before  the petition was allowed by the learned Judge.  

4.      A brief reference to the factual aspects would suffice.  

       Appellant No.1 is the wife of appellant No.2 who is a  doctor by profession. Respondent No.1 filed a complaint  alleging commission of offences punishable under Sections  323, 342, 382, 386 read with  Section 120B of the Indian  Penal Code, 1860 (in short the ’IPC’). The learned Magistrate  dismissed the complaint after recording statements of the  complainant and two others. Questioning correctness of the  order passed by the learned Magistrate, an application for  revision was filed before the learned Additional District and  Sessions Judge, First Track Court V, Alipore, South 24- Parganas. After hearing the revision petitioner-respondent  No.1 herein the said revision petition was dismissed.  

5.      Before the High Court the revision petition was treated to  be one under Section 482 of the Code, though styled as one  under Section 401 read with Section 402 of the Code. The  High Court allowed the petition and directed the Magistrate to  issue process against the appellants.  

6.      Learned counsel for the appellants submitted that before  the revisional Court the appellants were heard. Initially in the  present petition the appellants were impleaded as parties but  at the request of respondent No.1, their names were deleted.  Learned counsel for the appellants has further submitted that  though the respondent No.1 himself had styled the petition as  one under Section 401 read with Section 402 of the Code, the  High Court erroneously treated it to be a petition under

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Section 482 of the Code.  It is clear from the cause title that   the case was registered to be one under the criminal revisional  jurisdiction and in view of the bar contained in the code  second revision was not maintainable. In any event, appellants  were not heard before the order was passed.  

7.      Learned counsel for respondent No.1 submitted that in  the matter of issuance of process the accused has no right to  be heard.  

8.      There can be no quarrel with the proposition that at the  time of issuance of process and taking cognizance the accused  has no right to be heard. But in the facts of the instant case  before the Revisional Court the appellants were heard.  Further, their names were indicated in the cause title, which  at the request of respondent No.1 were deleted.   

9.      Above being the position the High Court ought to have  heard the appellants before deciding the matter. Therefore,  without expressing any opinion on the merits of the case and  maintainability of the petition before the High Court, we set  aside the impugned order and remit the matter to the High  Court for fresh disposal in accordance with law.   

10.     The appeal is disposed of accordingly.