Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.42422 of 2010 ====================================================== Umesh Singh, son of Late Nandlal Singh, resident of Archana Bhawan, Road No. 12, Rajendra Nagar, P.S. Kadamkuan, District – Patna. .... .... Petitioner/s Versus 1. State Of Bihar, 2. M/s VIP Industries Ltd., Sukirti Complex, S.P. Verma Road, P.S. Kotwali, District – Patna through its authorized signatory Anup Kumar Gupta. .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 5 12-11-2013 Heard learned counsel for the parties. The present application has been filed for quashing the order dated 8.9.2010 passed by the learned Additional Sessions Judge VI, Patna in Cr. Revision No. 281 of 2010 whereby the learned Additional Sessions Judge has set aside the order dated 8.4.2010 passed by the learned Judicial Magistrate Ist Class, Patna in Complaint Case no. 614 C of 2005 whereby the learned Magistrate dismissed the application of O.P. No. 2 under Section 319 of the Code of Criminal Procedure filed for summoning the petitioner for facing trial. There are two questions which arise for determination by this Court. Firstly, whether a person who has been arrayed as accused in the complaint petition but not summoned under Section 204 Cr.P.C. to face trial, can later Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 2/21 on be summoned and tried along with other accused persons in exercise of power under Section 319 Cr.P.C. treating him to be not being accused and secondly, whether the power of revision under Section 397 Cr.P.C. can be exercised by the Court of Sessions without making the affected person (accused), a party or giving an opportunity of being heard. The prosecution case, in brief, is that the complainant/ O.P. No. 2, being a Company dealing in hard and soft luggage, filed Complaint Case no. 614 C of 2005, with the accusation that the petitioner and his partner, namely, Dinesh Singh approached the Company for dealership, and they promised to pay the price of goods within thirty days of issuance of each invoice or to return the unsold goods within the same period. The accused persons initially paid the bill amount but later on they defaulted in payment and a sum of Rs.59,86,419.42 remained due, against the supply made between 31.5.2002 to 17.4.2003, out of which payment of a sum of Rs.2,00000/- was made as part payment. The complainant Company thereafter stopped supply of articles and demanded back the due amount of Rs.57,86,419.42 through Legal Notice dated 15.11.2003. The accused persons replied to the said legal notice but did not pay the due amount.
Facts
Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 3/21 Hence, it is alleged that the money, along with articles supplied, were misappropriated. The learned Magistrate, after suspension of process and due enquiry under Section 202 Cr.P.C., took cognizance of the offence under Sections 403 and 417 IPC and issued process against other accused persons but process was not issued against the petitioner. The complainant Company thereafter moved before the learned Sessions Judge, Patna in Cr. Revision questioning the discharge of the petitioner. However, the Learned Sessions Judge dismissed the revision with an observation that the complainant may raise its grievance by filing an application under Section 319 Cr.P.C. Thereafter the substance of accusation was explained to the accused and the case was fixed for evidence, however, the complainant kept on taking adjournments on one pretext or the other for about one and half years, but no witness was examined. Finally, the learned trial court closed the evidence and acquitted the accused persons vide order dated 24.7.2008. The order of acquittal was challenged by the complainant O.P. No. 2 before this Court in SLA No. 64 of 2008. The SLA was disposed of on 2.4.2009 with an Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 4/21 observation that the complainant/O.P. No. 2 should produce witnesses within a period of one week from the date of receipt of a copy of the said order, with a direction to the trial court to conclude the trial within one month thereafter. It appears from the order passed in SLA that the order of acquittal was not set aside. Even though the matter was remanded back, the O.P. No. 2 continued to linger on the matter for ten months and the first witness was finally produced on 8.2.2010. Thereafter, two more witnesses were examined and the complainant Company filed an application dated 17.3.2010 under Section 319 Cr.P.C. for issuing summons to the petitioner to face trial. The learned trial court after examining the materials on record held that there is no compelling reason to issue summons to the petitioner and rejected the said application vide order dated 8.4.2010, as contained in Annexure 3. The complainant/O.P. No. 2 preferred Cr. Revision No. 281 of 2010 before the learned Sessions Judge, Patna against the order dated 8.4.2010, without making the petitioner as opposite party, but the said Cr. Revision was allowed vide order dated 8.9.2010 by the learned Additional Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 5/21 Sessions Judge by setting aside the order of the learned trial court in the following words: “I think that there is prima facie strong evidence with regard to the complicity of the proposed accused as partner with Dinesh Singh and both had done their business in the name of Archana Enterprises, but on those facts the learned court below has not considered deeply and passed the impugned order.” The learned Additional Sessions Judge remitted back the matter with the above observation to the learned trial court for passing order afresh. It is submitted by the learned counsel for the petitioner that though the petitioner was named in the complaint but the process was not issued against the petitioner. Hence, the petitioner cannot be summoned, in exercise of power under Section 319 Cr.P.C., since a person named in the complaint but against whom the process has not been issued, cannot be treated to be an accused. Reliance has been placed on Rama Devi and another Vs. State of Bihar and another, 2004(2) PLJR 225. It is further submitted that the petitioner was not made party in Cr. Revision No. 281 of 2010, hence without giving him an opportunity of being heard, the learned trial court was directed to pass a fresh Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 6/21 order, by recording that prima facie evidence with regard to the complicity of the petitioner in commission of offence is apparent, which is not permissible in view of the provision contained under Sections 399/401 Cr.P.C. The learned counsel for the O.P. No. 2 has submitted that the learned Sessions Judge has found prima facie evidence for summoning the petitioner but has not controverted the legal proposition as laid down in the case of Rama Devi (supra). The question which arises is whether, the Magistrate having decided to hold the enquiry after suspension of process under Section 202 of the Code but finding no sufficient ground declined to proceed against the petitioner, while issuing processes against others. Hence, under such circumstance can the petitioner be deemed to be an accused in the case and as such, whether the power under Section 319 of the Code be exercised against the petitioner. For appreciating the issue involved, it is appropriate to quote the provision under Section 319 (1) Cr.P.C. which reads as follows: “319. Power appearing to be guilty of offence. to proceed against other persons (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 7/21 person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2)…. (3)…. (4)…..” From the plain reading of the above provision, it appears that any person not being the accused in course of any enquiry or trial, later on, when it appears in course of enquiry or trial that such person has committed any offence, the Court may proceed against such person and try him together with other accused persons. The issue was considered by the Apex Court in the case of Sohan Lal and others Vs. State of Rajasthan AIR 1990 SC 2158. Paragraphs 20,21 and 33 read as follows: “20. Chapter XV deals with complaints to Magistrates. Section 200 provides for examination of complainant. Section 202 deals with postponement of issue of process and says in sub-sec.(1) that any Magistrate, on receipt of a complaint of an offence which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 8/21 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 whether or not there is sufficient ground for proceeding. Thus we find that the expression “the accused” has been used in relation to a complaint case under this section even before issue of process. It also appears that in the Code the expression “the accused” is used after cognizance is taken by the Magistrate.” “21. Chapter XVI of the Code deals with commencement of proceedings before Magistrate. Section 204 dealing with issue of process uses the expression “the accused”. Under sub-section (i) thereof if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be – (a) a summons case, he shall issue his summons for the attendance of the accused, or (b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. Under sub- section (2), no summons or warrant shall Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 9/21 be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed. Thereafter the expression “the accused” has been used in subsequent sections. Thus one is referred to as “the accused” even before issue of process.” “33. The above views have to yield to what
Legal Reasoning
is laid down by this Court in the decisions above referred to. The provisions of Sec. 319 had to be read in consonance with the provisions of S. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of S. 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under S. 398 of the Code may not be lost sight of.” Hence, it is held that once a person is found to have been made an accused in complaint case, he goes out of the reach of Section 319 Cr.P.C. and the remedy lies against such person by filing an application for revision under Section 398 of Cr.P.C. Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 10/21 A contrary view was taken by the Apex Court in the case of Dr. S.S. Khanna Vs. Chief Secretary, Patna and another, reported in AIR 1983 SC 595. Paragraphs 13 and 14 read as follows: “13. Even when an order of the Magistrate declining to issue process under Sec. 203 is confirmed by a higher Court, the jurisdiction of Magistrate under Section 319 remains unaffected if other conditions are satisfied. “14. It is thus clear that it cannot be said that the Magistrate had no power to proceed against the appellant in this case. On looking into the record we are of the view that the Magistrate had good reason to summon the appellant under Section 319 of the Code as it appears from the evidence led at the trial that there was a strong case made out against the appellant for joining him in the criminal case as an accused. It is, however, not necessary to refer to this aspect of the matter in detail having regard to the nature of the order we propose to pass in this case.” This Court in the case of Rama Devi (supra) after considering the ratio laid down in Sohan Lal (supra) and Dr. Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 11/21 S.S. Khanna (supra) and other judgments, came to the conclusion that if a person who has been made accused in a complaint case but ultimately process was not issued against him then such person shall not come within the expression “not being an accused” and he goes out of reach of Section 319 Cr.P.C. The findings have been recorded in paragraph nos. 13,14 and 15 which read as follows: “13. There seem apparent conflict between the decisions of the Supreme Court in the case of Sohan Lal (supra) and Dr. S.S. Khanna (supra). In the case of Sohan Lal (supra) the Supreme Court has found that the expression “the accused has been used in relation to a complaint case even before issuance of process” and “once a person is found to have been accused in the case he goes out of the reach of Section 319” but in the case of Dr. S.S. Khanna (supra) the Supreme Court observed that “having regard to the nature of the proceeding under Section 202 of the Code it may be difficult to hold that there is a legal bar based on the principle of estoppel to proceed against a person complained against on the same material if the court has dismissed the complaint under section 203 of the Code” After saying so the Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 12/21 Supreme Court in the case of Dr. S.S. Khanna further observed that “it is not necessary to express any final opinion on the question having regard to the nature of the order it intended to pass in the said case”. Further in the case of Dr. S.S. Khanna (supra) the point projected was the bar based on the issue of estoppel primarily. Not only this, the decision in the case of Sohan Lal (supra) was rendered on consideration of the decision in the case of Dr. S.S. Khanna. In such a situation I would prefer to follow the decision of the Supreme Court in the case of Sohan Lal(supra) and hold that in a case in which a person is arrayed as an accused in a petition of complaint and after the Magistrate postpones the issue of process, holds an enquiry and does not issue process against some persons, those persons shall not come within the expression “not being the accused” and as such they go out of the reach of Section 319 of the Code. “14. I find additional reason to come to the aforesaid conclusion. In a police case the statement during the course of investigation is taken by the investigating agency and one may not lose sight of the Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 13/21 fact that what has been recorded in the first information report or the statement before the investigating agency may not be true representation of the statement. So far as the complaint petition is concerned, it is presented by the complainant and statements are recorded by the Magistrate which guarantees correct recording. Further when a petition of complaint is dismissed the complainant has remedy under Section 398 of the Code to pray for further enquiry in respect of such person who has been discharged. The power of further enquiry can be exercised on the material brought by the complainant without any hindrance, whereas in the police case such materials may not be available for no fault of the informant or the witnesses. “15. It has to be borne in mind that the expression “accused” in a police case and complaint case does not carry the same meaning. In the police case if processes are not issued against a person such persons come within the expression “any person not being the accused” but in the complaint case the expression “the accused” has been used even before the issuance of process.” Hence, it appears that in a police case, persons Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 14/21 against whom processes are not issued are not accused, whereas in the complaint case the term „accused‟ is used even before the issuance of process. In the present case, the petitioner was named in the complaint but the processes were not issued, hence he ought not have been directed to be summoned in exercise of the power under Section 319 Cr.P.C. In Sohan Lal and others (supra), the two-judge bench of the Apex Court held that once an accused has been discharged, the procedure for enquiry under Section 398 Cr.P.C. cannot be circumvented by the exercise of power under Section 319 Cr.P.C. Power under Section 398 Cr.P.C. is in the nature of revisional power which can be exercised by the High Court or the Court of Sessions as the case may be. According to Section 300(5) Cr.P.C., a person discharged under Section 258 Cr.P.C. shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate. Further, Section 398 Cr.P.C. provides that the High Court or the Court of Sessions may direct the Chief Judicial Magistrate by himself or by any of the Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 15/21 Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub- section (4) of section 204 or into the case of any person accused of an offence who has been discharged. Accordingly, a person discharged in a complaint case can also be arrayed as an accused again but only after an enquiry as contemplated under Section 300(5) or 398 Cr.P.C. If during or after such enquiry there appears to be an evidence against such person, power under Section 319 Cr.P.C. can be exercised. Thus, no proceeding can be commenced against such discharged person directly under Section 319 Cr.P.C. without taking recourse to the provision of Section 300(5) read with Section 398 Cr.P.C. In the present case, it appears that no enquiry under Section 398 Cr.P.C. has been held, hence, the petitioner cannot be summoned under Section 319 Cr.P.C. The next question for consideration is whether the learned Sessions Judge was empowered to pass an order without the petitioner being made party in Cr. Revision No. 281 of 2010. The same question came up for consideration Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 16/21 before this Court in the case of Sayeed Bhagat and others Vs. State of Andhra Pradesh 1999 Cr.L.J. 4040 when a bench of this Court noticed the facts of the case where an application was filed in a criminal case under Section 319 Cr.P.C. to summon the remaining accused persons who were named by the witnesses. The Magistrate refused the said prayer mainly for want of sufficient evidence. The said order was challenged in revision by the complainant. The revisional court set aside the order of the Magistrate without hearing the petitioners against whom prayer was made for issuance of summons. When the matter came up before the High Court, it was held “8.In the instant case also though the jurisdiction of the Court to summon a person under section 319 of the Cr.P.C. cannot be questioned, the revisional Court, in my view should have heard the petitioners before passing the impugned order because the same has prejudiced them”. Similar issue came for consideration in the case of Satish Chandra Dey Vs. State of Jharkhand and Anr. reported in AIR 2008(2) Jhar R 330 wherein the order of Sessions Judge was challenged before the High Court under Section 482 Cr.P.C. on the ground that the Sessions Judge directed the Magistrate to summon the petitioner to face trial along with Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 17/21 other accused, though the trial court had refused to exercise its jurisdiction to summon the petitioner to face trial. The question raised before the High Court was that the revisional court has erred in law in passing such order without giving opportunity of hearing to the petitioner. Allowing the said petition, the High Court held as under: “10. Thus it is evidently clear from the relevant provision of law that no order to the prejudice of an accused or any other person can be made unless the said accused or the said persons have been given an opportunity of being heard. 11. In the instant case also learned Sessions Judge in absence of the petitioner has passed the impugned order whereby he directed the trial Court to implead the petitioner as an accused in the proceeding which in view of the provision as contained in Sections 399/401(2) of the Code of Criminal Procedure is illegal.
Decision
12. In the result, this application is allowed and the impugned order dated 23.6.2006 is set aside and the case is remanded to the learned Sessions Judge, Bokaro for hearing afresh after giving due notice to the parties so that the same be disposed of in accordance with law.” The issue was also considered by Three-Judge bench of the Apex Court in the case of Manharibhai Muljibhai Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 18/21 Kakadia and Another Vs. Shaileshbhai Mohanbhai Patel and Others reported in (2012) 10 Supreme Court Cases 517. Paragraph 53 reads as follows: “We are in complete agreement with the view expressed by this Court in P.Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 19/21 sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.” The provision under Section 401(2) Cr.P.C. stipulates that no order while exercising revisional jurisdiction 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. Section 399 of the Code provides Sessions Judge power of revision which reads as follows:- 399. Sessions Judge's powers of revision. (1) In the case of any proceeding the record of which has been called for by himself the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under subsection (1), the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 20/21 made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such further person shall be proceeding by way of revision at the instance of shall be entertained by the High Court or any other Court. final and no such person Section 399(2) of the Code stipulates that provisions of Sub-section (2), (3), (4) and (5) of Section 401 of the Code shall apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge. Hence, the Sessions Judge also cannot exercise his revisional jurisdiction and pass any order prejudicial to the accused or other person unless he has an opportunity of being heard. The Apex Court in the case of Mohit Vs. State of U.P., 2013(3) BBCJ Part IV-205 has held that the provisions of Sub-Section (2) of Section 401 of the Code can also be applied in cases where the power under Section 482 of Cr.P.C. is exercised. Paragraph 29 reads as follows: “Indisputably, a valuable right accrued to the appellants by reason of the order passed by the Sessions Court refusing to issue summons on the ground that no prima facie case has been made out on the basis of evidence brought on record. As discussed hereinabove, when the Sessions Court order has been challenged, then Patna High Court Cr.Misc. No.42422 of 2010 (5) dt.12-11-2013 21/21 it was incumbent upon the revisional court to give notice and opportunity of hearing as contemplated under sub-section (2) of Section 401 of Cr.P.C. In our considered opinion, there is no reason why the same principle should not be applied in a case where such orders are challenged in the High Court under section 482 of Cr.P.C.” Hence, in the considered opinion of this Court, the learned Additional Sessions Judge was absolutely wrong in allowing Cr. Revision No. 281 of 2010 without making the petitioner (accused) as opposite party or giving him an opportunity of being heard. Hence, on that ground also the revisional order cannot be upheld. Accordingly, in view of discussions made above, to prevent the abuse of the process of the court and in order to secure the ends of justice, the order dated 8.9.2010 passed by the learned Additional Sessions Judge VI, Patna in Cr. Revision no. 281 of 2010 is hereby quashed. This application is allowed to the extent indicated above. Anil/- (Dinesh Kumar Singh, J)