Holding

The second revision was barred and the High Court should have heard the accused before granting relief; the order was set aside and the matter remitted for fresh disposal.

Summary

Respondent No.1 filed a criminal complaint against Subha Raj and others alleging offences under several IPC sections. The Magistrate dismissed the complaint, and the complainant's first revision before the Additional District and Sessions Judge was also dismissed. A second revision petition, styled under s.401 r/w s.402 of the CrPC, was filed before the Calcutta High Court, which treated it as a petition under s.482 and directed the Magistrate to issue process without hearing the accused. The appellants contended that the second revision was barred and that they were denied a hearing, while the respondent argued that an accused has no right to be heard at the stage of issuing process. The Supreme Court held that the case was indeed a criminal revision, making a second revision impermissible, and that the High Court should have heard the accused before granting relief; consequently, the order was set aside and the matter remitted for fresh disposal.

Issues considered

Whether a second revision petition under s.401 r/w s.402 CrPC is maintainable in view of the bar on second revisions.
Whether the High Court was required to hear the accused before allowing the petition and directing issuance of process.
Whether the High Court erred in treating the petition as one under s.482 CrPC instead of s.401/402.

Legislation cited

Code of Criminal Procedure, 1973s. 401, s. 402, s. 482
Indian Penal Code, 1860s. 1208, s. 323, s. 342, s. 382, s. 386

Subjects

criminal revisionsecond revision barredright to be heardSection 401 CrPCSection 402 CrPCSection 482 CrPCissuance of processHigh Court jurisdictioncriminal procedure

Judgment

SMT. SUBHA RAJ AND ANR. A
\I.

SANKAR SARKAR AND ANR.

JULy 24, 2007

[DR. ARIJIT PASAY AT AND D.K. JAIN, JJ.] B

Code ofCriminal Procedure, 1973-s. 401 r/w s. 402 and 482---Crimina(
Revision-Second revision petition-Before High Court-Against dismissal
of complaint-Revision petition treated by High Court to be uls 482, and C
direction for issue of process-Order passed without hearing the accused-
Propriety of-Held: Second revision is barred -Though at the time of issuance
of process and taking cognizance, accused has no right to be heard-But in
view of the fact that the accused were heard before first Revisional court, and.
the names of the accused were deletedfrom the cause title at the behest of
the complainant, High Court should have heard the accused-Matter remitted D
to High Court.

Respondent No. 1 filed criminal complaint against the appellants. The
Magistrate dismissed the complaint. Respondent No. 1 filed revision before
Addi. District and Sessions Judge and the same was dismissed. He then filed
another revision petition u/s. 401 r/w 402 Cr.P.C. before High Court. High .E
Court treated the petition to be under s. 482 Cr.P.C. and directed the
Magistrate to issue process against the appellants.

In appeal to this Court, appellants contended that High Court erroneously
treated the petition to be u/s 482 as the same was styled to be u/s 401 r/w F
402; and that they were not heard by the High Court before allowing the
petition.

Respondent No. 1 contended that in the matter of issuance of process,
the accused has no right to be beard.

Disposing of the appeal and remitting the matter to High Court, the G.
Court

HELD: 1. The case was r~gistered to be one under the criminal
revisional jurisdiction and in view of the bar contained in the Cr.P.C. second
493 H
5
I

494 SUPREME COURT REPORTS (2007) 8 S.C.R.

A revision was not maintainable. In any event, appellants were not heard before
the order was passed. [Para 6) (495-01

2. Though 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
B indicated in the cause title, which at the request of respondent No.I were
deleted. This being the position the High Court ought to have heard the
appellants before deciding the matter. (Paras 8 and 9J (495-E, FJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 927 of
c 2007.
From the Judgment & Order dated 12.01.2006 of the High Court at
Calcutta in CRR No. 2203 of2005.

Dhruv Mehta, Rana S. Biswas and Sarla Chandra for the Appellants.

D Tara Chandra Shanna, Neelam Shanna, H.K. Puri, S.K. Puri, Priya Puri,
U.B. Banerjee, V.M. Chuhan and S.K. Shanna for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. I. Leave granted.
E
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 40 I
read with Section 402 of the Code of Criminal Procedure, I 973 (in short the
'Code').

F 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.

G Appellant No. I is the wife of appellant No.2 who is a doctor by
profession. Respondent No. I filed a complaint alleging commission of offences
punishable under Sections 323, 342, 382, 386 read with Section 1208 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.
H Questioning correctness of the order passed by the learned Magistrate, an
-(

SUBHA RAJ v. SANKAR SARKAR [PASA YAT, J.] 495
application for revision was filed before the learned Additional District and A
. Sessions Judge, First Track Court V, Alipore, South 24-Parganas. After hearing
the revision petitioner-respondent No. I 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 40 I read B
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 C.
were impleaded as parties but at the request of respondent No. I, their names
were deleted. Learned counsel for the appellants has further submitted that
though the respondent No. I himself had styled the petition as one under
Section 40 I read with Section 402 of the Code, the High Court erroneously
treated it to be a petition under Section 482 of the Code. It is clear from the
cause title that the case was registered to be one under the criminal revisional D,
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.I submitted that in the matter of
issuance of process the accused has no right to be heard. E
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. I were deleted. F
9. Above being the position the High Court Qught 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 G
High Court for fresh disposal in accordance with law.

10. The appeal is disposed of accordingly .
. -f
K.K.T. Appeal disposed of.
H

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