BAL MANOHAR JALANversusSUNIL PASWAN & ANR.

                     [2014] 7 S.C.R. 900


A                     BAL MANOHAR JALAN
                                v.
                     SUNIL PASWAN & ANR.
                (Criminal Appeal No.1247 of 2014)
                          JUNE 30, 2014
B
            [T.S. THAKUR AND C. NAGAPPAN, JJ.]

         Code of Criminal Procedure, 1973 - s.401(2) - Right' of
    hearing given to accused under - Compliance of - Held: In a
c   criminal revision before the High Court, accused person
    cannot be deprived of hearing on the face of the express
    provision contained in s. 401 (2) of the Code.

       The father of the respondent no.1 filed a complaint
  against five accused persons. The appellant was
0
  mentioned as accused No.4 in First Information Report.
  The complainant filed a protest-cum-complaint petition in
  the said case. Final report was filed, cognizance was
  taken against accused no.1 alone for the alleged offences
  u/s' 328 and 302 IPC and the other four accused
~ mentioned in the FIR were discharged from the case. The
  protest-cum-complaint petition was also rejected. The
  complainant died. Respondent no.1 filed the Criminal
  Revision under Section 397 and 401 Cr.P.C. and the High
  Court without issuing notice to the concerned accused
F passed the order. Hence, the instant appeal.

        Allowing the appeal, the Court

       HELD: 1.1. In the instant case, challenge is laid to
G order at the instance of the complainant in the revision
  petition before the High Court and by virtue of Section
  401 (2) of the Code of Criminal Procedure, 1973, the
  accused mentioned in the First Information Report get.
  the right of hearing before the revisional court although

H                               900
     BAL MANOHAR JALAN v. SUNIL PASWAN              901


the impugned order therein was passed without their A
participation. The appellant who is an accused person
cannot be deprived of hearing on the face of the express
provision contained in Section 401 (2) of the Code and on
this' ground, the impugned order of the High Court is set
aside and the matter is remitted back. [Para 8) (906-C-E] B

     1.2. Though other grounds such as charge-sheet
having been filed and the cognizance has been taken
against accused No.1, the protest petition cannot be
treated as a complaint warranting an independent inquiry, C
have been raised in this appeal, it is not necessary to
consider the same since the matter is remitted for fresh
consideration and it is open to the appellant to raise them
before the High Court. [Para 9) (906-E-F]

    Manharibhai Muljibhai Kakadia and another vs. D
Shaileshbhai Mohanbhai Patel and others 2012 (8) SCR
1015:(2012) 10 sec 517 - referred to.

                    Case Law Reference:
  2012 (8) SCR 1015         Referred to      Para 5, 7     E

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1247 of 2014

    From the Judgment and Order dated 18.04.2011 in CRLR
No. 830/2009 of the High Court of Patna.                   F

    Gaurav Agrawal for the Appellant.

     S.B. Upadhyay (A.C.), Santosh Mishra, Vijaiendra Nigam,
Krishnam Mishra, Param Mishra, Kaustv P. Pathak, Gopal G
Singh, Manish Kumar, Shubhra Rai for the Respondents.

    The Judgment of the Court was delivered by

    C. NAGAPPAN, J. 1. Leave granted.
                                                           H
    902      SUPREME COURT REPORTS                [2014] 7 S.C.R.


A       2. This appeal is preferred against the impugned order
    dated 18.4.2011 passed by the High Court of Judicature at
    Patna in Criminal Appeal No. 830 of 2009 whereby the High
    Court allowed the Criminal Revision filed by the respondent
    No.1 herein.
B
          3. The facts necessary for the disposal of the present
    appeal are stated as follows: The father of the respondent No.1
    herein filed a complaint on 24.5.2003 against five accused
    persons alleging therein that they had committed murder of son
    of the complainant by name Anil Paswan by administering
C   poison. A case was registered in First Information Report
    No.96 of 2003 on the file of Chowk Police Station, Patna City,
    on 28.5.2003 against 5 accused persons for the alleged
    offences under Section 328/302/34 IPC. During investigation,
    the complainant filed a protest-cum-complaint petition on
D   7.6.2003 which was kept on record. The investigation officer
    submitted the final report in the case on 31.5.2008 against
    accused No.1 Sunita Devi alone under Section 328/302 IPC
    for the murder of Anil Paswan. The Addi. Chief Judicial
    Magistiete, Patna City, perused the charge-sheet and the case
E   diary as well as the protest-cum-complaint petition dated
    7.6.2003 and took .cognizance for the offences under Section
    328/302 IPC against accused No.1 Sunita Devi and
    discharged accused Nos. 2 to 5 in the First Information Report
    from the case and rejected the protest-cum-complaint petition
F   filed by the complainant by his order dated 4.3.2009. Aggrieved
    by the rejection of the protest-cum-complaint petition Sunil
    Paswan, the son of complainant late Harinandan Paswan filed
    revision petition in Criminal Revision No.830 of 2009 on the
    file of the High Court of Judicature at Patna under Section 397
G   and 401 of the Code of Criminal Procedure. The High Court
    after hearing the revision petitioner and the respondent State
    set aside the order dated 4.3.2009 passed by Addi. Chief
    Judicial Magistrate, Patna City and remanded the matter to the
    court below for proceeding in accordance with law treating the
H   protest-cum-complaint petition as a complaint. Accused No.4
     BAL MANOHAR JALAN v. SUNIL PASWAN                      903
              [C. NAGAPPAN, J.]
mentioned in the First Information Report Bal Manohar Jalan         A
has challenged the said order of the High Court in this appeal.

     4. This Court issued notice in the matter on 1.8.2011
besides granting stay of the impugned ofder. Respondent No.1
herein namely, the revision petitioner before the High Court,       B
though served did not choose to appear either in person or
through counsel before this Court and that necessitated us to
appoint Mr. S.B. Upadhyay, Senior Advocate as Amicus
Curiae for respondent No.1 to assist the Court, by order dated
7.4.2014 and both sides were heard on 2.5.2014.
                                                                    c
     5. The main contention of the learned counsel for the
appellant is that though Section 401 (2) of the Criminal
Procedure Code stipulated that no order in exercise of the
power to revision shall be made by the High Court to the
prejudice of the accused unless he had an opportunity of being      D
heard either personally or by pleader in his own defence, the
High Court in criminal revision did not issue notice to the
appellant herein who is accused No.4 in the First Information
Report and without providing an opportunity to him has
exercised jurisdiction under Section 401 by directing to proceed    E
in accordance with law treating the protest petition as the
complaint, to the prejudice of the appel[ant herein and hence
the impugned order of the High Court is liable to be set aside.
In support of his submission he relied on the decision of this
Court in Manharibhai Muljibhai Kakadia and another vs.              F
Shai/eshbhai Mohanbhai Patel and others [(2012) 10 SCC
517]. We also heard the learned amicus curiae on the
submissions made by the learned counsel for the appellant.

      6. Admittedly the appellant herein is mentioned as
accused No.4 in First Information Report No.96 of 2003 dated        G
28.5.2003. The father of respondent No.1 herein, while alive
filed a protest-cum-complaint petition dated 7.6.2003 in the said
case and on the filing of the final report, cognizance was taken
by the Addi. Chief Judicial Magistrate against accused No.1
Sunita Devi alone for the alleged offences under Section 328        H
    904       SUPREME COURT REPORTS                   [2014] 7 S.C.R.

A and 302 IPC and the other four accused mentioned in the First
  Information Report were discharged from the case and the
  protest-cum-complaint petition was also rejected by order dated
  4.3.2009. Since by then, the complainant was not alive, his
  another son namely Sunil Paswan preferred the Criminal
B Revision under Section 397 and 401 of the Criminal Procedure
  Code and the High Court without issuing notice to the
  concerned accused passed the impugned order and on the
  ground of non-compliance of the provision under Section 401
  clause (2) of the Criminal Procedure Code resulting in
c prejudice, the appellant has preferred this appeal.
         7. The right of hearing given to accused under Section 401
    clause (2) of Criminal Procedure Code was elaborately dealt
    with by this Court in Manharibhai Muljibhai Kakadia case
    (supra) and it is laid down as follows:
D
          "46. The legal position is fairly well-settled that in the
          proceedings u/s. 202 of the code the accusedfsuspect is
          not entitled to be heard on the question whether the
          process should be issued against him or not. As a matter
E         of law, upto the stage of issuance of process, the accused
          cannot claim any right of hearing. s~ 202 contemplates
          postponement of issue of process where the Magistrate
          is of an opinion that further inquiry into the complaint either
          by himself is required and he proceeds with the further
F         inquiry or directs an investigation to be made by a Police
          Officer or by such other person as he thinks fit for the
          purpose of deciding whether or not there is sufficient
          ground for proceeding. If the Magistrate finds that there is
          no sufficient ground for proceeding with the complaint and
          dismisses the complaint ufs. 203 of the Code, the question
G
          is whether a person accused of crime in the complaint can
          claim right of hearing in a revision application preferred
          by the complainant against the order of the dismissal of
          the complaint. Parliament being alive to the legal position
          that the accusedfsuspects are not entitled to be heard at
H
 BAL MANOHAR JALAN v. SUNIL PASWAN                     905
          [C. NAGAPPAN, J.]
any stage of the proceedings until issuance of process         A
under Section 204, yet in Section 401 (2) of the Code
provided that no order in exercise of the power of the
revision shall be made by the Sessions Judge or the High
Court, as the case may be, to the prejudice of the accused
                                                        •
or the other person unless he had an opportunity of being      B
heard either personally or by pleader in his own defence.

47. xxxx xxxx xxxx
48. In a case where tre complaint has been dismissed by
the Magistrate u/s. 203 of the Code either at the stage of     C
S. 200 itself or on completion of inquiry by the Magistrate'
u/s. 202 or on receipt of the report from the police or from
any person to whom the direction was issued by the
Magistrate to investigate into the allegations in the
complaint, the effect of such dismissal is termination of      D
complaint proceedings. On a plain reading of sub-s. (2)
of Section 401, it cannot be said that the person against
whom the allegations of having committed the offence have
been made in the complaint and the complaint has been
dismissed by the Magistrate under Section 203, has no          E
right to be heard because no process has been issued.
The dismissal of complaint by the Magistrate u/s. 203
although it is at preliminary stage nevertheless results in
termination of proceedings in a complaint against the
persons who are alleged to have committed the crime.           F
Once a challenge is laid to such order at the instance of
the complainant in a revision petition before the High Court
or the Sessions Judge, by virtue of S. 401 (2) of the Code
the suspects get the right of hearing before the revisional
court although such order was passed without their             G
participation. The right given to "accused" or "the other
person" under S. 401 (2) of being heard before the
 revisional court to defend an order which operates in his
favour should not be confused with the proceedings before
 a Magistrate under Sections 200, 202, 203 and 204. In the     H
    906          SUPREME COURT REPORTS              [2014] 7 S.C.R.


A         revision petition before the High Court or the Sessions
          Judge at the instance of the complainant challenging the
          order of dismissal of complaint, one of the things that could
          happen is reversal of the order of the Magistrate and revival
          of the complaint. It is in this view of the matter that the ·
B         accused or other person cannot be deprived of hearing on
          the face of the express provision contained in S. 401 (2)
          of the Code. The stage is not important whether it is pre-
          process stage or post process stage."

        8. In the present case challenge is laid to order dated
C 4.3.2009 at the instance of the complainant in the revision
  petition before the High Court and .bY virtue of Section 401 (2)
  of the Code, the accused mentioned in the First Information
  Report get the right of hearing before the revisional ~ourt
  although the impugned order therein was passed without their
D participation. The appellant who is an accused person cannot
  be d_eprived of hearing on the face of the express provision
  contained in Section 401(2) of the Code and on this ground,
  the impugned order of the High Court is liable to be set aside
  and the matter has to be remitted.
E
         9. Though other grounds such as charge-sheet having
    been filed and the cognizance has been taken against accused
    No.1, the protest petition cannot be treated as a complaint
    warranting an independent inquiry, have been raised in this
F   appeal, we do not deem it necessary to consider the same
    since we are remitting the matter for fresh consideration and it
    is open to the appellant to raise them before the High Court.

       10. In the result the impugned order of the High Court dated
  18.4.2011 is set aside and the matter is remitted and the High
G Court shall issue notice to all the concerned accused and
  thereafter hear and dispose of the criminal revision petition in
  accordance with law. This appeal is allowed accordingly.
    Nidhi Jain                                         Appeal allowed.