Prabha Mathur &
ANR. Vs. Pramod Aggarwal & Ors.  INSC 1650 (26 September 2008)
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
C.K. THAKKER, J.
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, 2 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.
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 3 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.
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 4 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.
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
Accordingly, both the
revisions were dismissed by the Additional Sessions Judge, Agra.
complainants in view of dismissal of complaints and revisions challenged those
5 orders by instituting Criminal Writ Petition Nos. 9952-53 of 2006 in the High
Court of Judicature at Allahabad.
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.
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.
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.
have heard the learned counsel for the parties.
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, 7 the trial
Court was satisfied that no complaint could have been filed against the appellants.
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.
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 8 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.
was also submitted that even on merits, the order passed by the High Court is
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.
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 9 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.
learned counsel for the State supported the arguments advanced by the learned
counsel for the complainants.
heard the learned counsel for the parties, in our opinion, the appeal deserves
to be allowed. It is no doubt true, 10 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
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.
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 11 hearing before passing
the impugned order in writ-petitions.
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.
even otherwise, issuance of such notice to the appellants was necessary and was
in consonance with the principles of natural justice and fair play.
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.
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) 13
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
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.
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.
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 15 below and could not have made the aforesaid
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.
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.
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 16 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.
(D. K. JAIN)