Raghu Raj Singh
Rousha Vs. M/S. Shivam Sundaram Promoters (P) L & ANR. [2008] INSC 2200 (17
December 2008)
Judgment
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
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 2 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:
3 "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 4 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.
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 6 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, 7 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 8 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."
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 10 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 11 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 12 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.
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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