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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