Allowed

Lalit Kumar Sahu v. State Of Chhattisgarh

Chhattisgarh HC3 Jan 2020CRMP/1732/2017

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed a special leave petition under Section 482 Cr.P.C., holding that a revisional court under Section 399 Cr.P.C. must afford an opportunity of hearing to a suspect who was not originally an accused before setting aside a trial court order that discharged them. The petition was set aside and remanded to the Sessions Court.

What did the court decide?

The impugned order of the Additional Sessions Judge dated 17/07/2017 was set aside. The matter was restored to the revisional court for hearing after arraigning the petitioner as a party and granting

Lalit Kumar Sahu Vs State Of… — Constitutional and Fundamental Rights | Chhattisgarh HC (2020)

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 1732 of 2017

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Lalit Kumar Sahu, S/o Abhyas Ram Sahu, Aged about
55 years, R/o Village Bhanpuri, Tahsil Gurur,
District Balod, Chhattisgarh. (not made party
before the Revisional Court)

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---Petitioner

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Versus

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1. State of Chhattisgarh, Through District Magistrate Durg, District Durg, Chhattisgarh.

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2. Abhilash Meshram, S/o Shri Meshram, Aged about 25 years, R/o Shakti Mandir, Vijay Nagar, Dur, P.S. Mohan Nagar, Durg, District Durg, Chhattisgarh.

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 --- Respondents

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For Petitioner:Mr. Praveen Dhurandhar,
Advocate
For Respondent No. 1/State:Mr. Rahul Jha,
Government Advocate
For Respondent No. 2:Mr. Jaideep Singh Yadav,
Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

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03/01/2020

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1. Petitioner herein along with three other complainants namely Goverdhan Sahu, Prabhuram Sahu and Ramesh Kumar Sahu lodged an FIR against respondent No. 2 herein and three others namely Prafull Meshram, Khata Ram and Deendayal alleging commission of offence punishable under Section

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420 read with 34 of the IPC which was ultimately
registered against them and they were
chargesheeted and they are standing trial. During
the course of the trial, the three complainants
other than the petitioner turned hostile and
thereafter, on 25/01/2017, respondent No. 2 moved
an application before under Section 319 of the
Cr.P.C. before the trial Court for arraigning the
present petitioner/complainant as an accused
which stood rejected by learned trial Magistrate
vide order dated 09/05/2017 finding no prima
facie case against the petitioner herein for
commission of any offence, against which
respondent No. 2 preferred a revision under
Section 399 of the Cr.P.C. before the Court of
Sessions wherein only the State of Chhattisgarh

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was impleaded as a party/respondent. The said
revision preferred by respondent No. 2 herein was
allowed by learned Additional Sessions Judge,
Durg vide impugned order dated 17/07/2017 and the
order dated 09/05/2017 passed by the trial
Magistrate was set aside and it was directed to
proceed against the petitioner in accordance with
law. Questioning the order dated 17/07/2017, this
petition under Section 482 of the Cr.P.C. has

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been preferred by the petitioner styling and
branding the said order as unsustainable and
contrary to the provisions contained under
Section 401 (2) of the Cr.P.C.

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2.Mr. Praveen Dhurandhar, learned counsel appearing
for the petitioner would submit that application
filed by respondent No. 2 against the petitioner
under Section 319 of the Cr.P.C. has rightly been
rejected by the trial Magistrate and the
revisional Court has erred in allowing the
revision petition preferred by respondent No. 2
against the order dated 09/05/2017 passed by the
trial Magistrate wherein the petitioner was not
impleaded as a party/respondent and without
issuing notice to the petitioner and without

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giving him an opportunity of being heard either
personally or by the pleader in his own defence
passed the impugned order which runs contrary to
Section 399 read with Section 401 (2) of the
Cr.P.C., therefore, the order impugned deserves
to be set aside. He would also place reliance
upon the decisions rendered by the Supreme Court
in the matters of Manharibhai Muljibhai Kakadia

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and Anr. v. Shaileshbhai Mohanbhai Patel and

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Ors.1;Mohit alias Sonu and Anr. v. State of
Uttar Pradesh and Anr.2; and Central Bureau of
Investigation v. Arvind Khanna3.

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3.Mr. Jaideep Singh Yadav, learned counsel
appearing for respondent No. 2 would however
support the impugned order and submit that
petitioner was not required to be arraigned as a
party/respondent in the revision petition and
therefore, learned revisional Court has rightly
set aside the order dated 09/05/2017 passed by
the trial Magistrate and this petition under
Section 482 of the Cr.P.C. deserves to be
dismissed.

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4.Learned State counsel would submit that

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petitioner was complainant before the trial
Court, therefore, respondent No. 2's application
under Section 319 of the Cr.P.C. was rightly
rejected by the trial Magistrate.

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5.I have heard learned counsel for the parties,
considered their submissions and went through the
records with utmost circumspection.

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6. It is correct to say that petitioner was a complainant along with three other persons who

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1 (2012) 10 SCC 517

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2 (2013) 7 SCC 789

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3 (2019) 10 SCC 686

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lodged an FIR against respondent No. 2 and three
others for offence punishable under Section 420
read with Section 34 of the IPC for which they
are standing trial but during the course of the
trial, the three other complainants except the
petitioner namely Goverdhan Sahu, Prabhuram Sahu
and Ramesh Kumar Sahu turned hostile which
persuaded respondent No. 2 to move an application
under Section 319 of the Cr.P.C. for arraigning

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the petitioner as an accused for offence
punishable under Section 420 of the IPC which the
trial Magistrate did not found favour with and
ultimately rejected the same, but the revisional
Court, in the revision preferred by respondent
No. 2, set aside the order dated 09/05/2017
passed by the trial Magistrate. It is pertinent
to notice that in the revision petition preferred
by respondent No. 2, petitioner was not impleaded
as a party/respondent and the said revision was
ultimately allowed without hearing him by the
impugned order dated 17/07/2017.

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7. The question that calls for consideration would be whether the petitioner was required to be noticed and should have been given an opportunity to be heard by the revisional Court before

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setting aside the order dated 09/05/2017 passed
by the trial Magistrate ?

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8.The revision was preferred by respondent No. 2

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under Section 399 of the Cr.P.C. which states as
under :-

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“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.

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(2) Where any proceeding by way of
revision is commenced before a Sessions
Judge under sub-section (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 sub-sections
to the High Court shall be construes as
references to the Sessions Judge.

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(3) Where any application for revision
is made by or on behalf of any person
before the Sessions Judge, the decision
of the Sessions Judge thereon in
relation to such person shall be final
and no further proceeding by way of
revision at the instance of such person
shall be entertained by the High Court
or any other Court.”

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9.By virtue of Section 399 (2) of the Cr.P.C. the
provisions of sub-sections (2), (3), (4) and (5)
of Section 401 have been made applicable to the
revisional proceeding under Section 399 of the
Cr.P.C., as such, the provisions of Section 401
(2) would apply in the revision petition
preferred by respondent No. 2 before the Court of
Sessions.

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10. At this stage section 401 (2) of the Cr.P.C. is required to be noticed which reads as under :-

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“401. High Court's powers of revision –

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(1) XXX XXX XXX

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(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.”

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11.The aforesaid provision would show that the

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revisional Court is under obligation to issue
notice to the accused or other person and hear
him either personally or by pleader in his own
defence. This provision is in consonance with the
principles of standard justice therefore, any
order made to the prejudice of any other person
will be fatal.

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12.The petitioner is not an accused. Now, the
question is whether the petitioner (suspect)
would fall within the meaning of “other person”
to whom the revisional Court ought to have
noticed and heard before passing the impugned
revisional order ?

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13. The question so posed for consideration is no longer res integra and it stands determined and finally concluded by the Supreme Court in the matter of Manharibhai (supra). In paragraph 47.5 of the report, it has been held that the expression “other person” in the context of Section 401(2) means a person other than the accused. It includes suspects or the persons alleged in the complaint to have been involved in

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an offence although they may not be termed as
accused at a stage before issuance of process. In
paragraph 48, their Lordships have further held
that once a challenge is laid to the order
against dismissal of the complaint under Section
203 of the Cr.P.C., opportunity of hearing to the
accused is necessary and it has been held as
under :-

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“In a case where the complaint has been
dismissed by the Magistrate under

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Section 203of the Code either at the
stage of Section 200itself or on
completion of inquiry by the Magistrate
underSection 202or 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 complaint proceedings. On a plain
reading of sub-section (2) of Section
401, it cannot be said that the person
against whom the allegations of having
committed offence have been made in the
complaint and the complaint has been
dismissed by the Magistrate under
Section 203, has no right to be heard
because no process has been issued. The
dismissal of complaint by the Magistrate
underSection 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 crime. Once a
challenge is laid to such order at the
instance of the complainant in a
revision petition before the High Court
or Sessions Judge, by virtue of Section
401(2)of the Code, the suspects get
right of hearing before revisional court
although such order was passed without
their participation. The right given to
“accused” or “the other person” under

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Section 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,
203and204. In the revision petition
before the High Court or the Sessions
Judge at the instance of 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 accused or other person cannot be
deprived of hearing on the face of
express provision contained in Section
401(2)of the Code. The stage is not
important whether it is pre-process
stage or post process stage.”

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Finally, in paragraph 53 of the report, it has
been held by their Lordships as under :-

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“53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan⁴ , Raghu Raj Singh Rousha⁵ and A. N. Santhanam⁶ . We hold, as it must be, that in a revision petition preferred by 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

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4 P. Sundarrajan v. R. Vidhya Sekar, (2004) 13 SCC 472

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5 Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd, (2009) 2 SCC 363 6 A.N. Santhanam v. K. Elangovan, (2012) 12 SCC 321

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stage underSection 200or after
following the process contemplated under
Section 202of the Code, the accused or
a person who is suspected to have
committed 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 sent back for fresh
consideration, the persons who are
alleged in the complaint to have
committed crime have, however, no right
to participate in the proceedings nor
they are 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.”

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14.The principle of law laid down in Mantharinbhai
(supra) has been followed with approval by the
Supreme Court in Mohit(supra) by holding that
even in a proceeding under Section 482 of the
Cr.P.C. questioning the order passed under
Section 319 of the Cr.P.C., the provision
contained under Section 401 (2) of the Cr.P.C.
has to be complied with and such person is
entitled for notice and opportunity of hearing in

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whose favour some right has been accrued by
virtue of the order passed by the trial Court and
it has been held in paragraphs 34 and 38 of the
report as under :-

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“34. 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 it was incumbent upon
the revisional court to give notice and
opportunity of hearing as contemplated
under sub-section (2) of Section 401of
Cr.P.C. In our considered opinion, there

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is no reason why the same principle
should not be applied in a case where

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such orders are challenged in the High
Court under Section 482of Cr.P.C.

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38.Aftergivingouranxious
consideration in the matter, we conclude
by holding that the High Court has
committed a grave error in passing the
impugned order for the reasons given
hereinbefore. We, therefore, allow this
appeal, set aside the order of the High
Court and remand the matter back to the
High Court to consider the matter afresh
after giving an opportunity of hearing
to the present appellants.”

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15.The principle of law laid down in the above-cited

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judgment in Mohit (supra) has then been followed
with approval in the matter of Central Bureau of
Investigation(supra) wherein their Lordships of
the Supreme Court have held as under in paragraph
23 of the judgment :-

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“23. So far as the order passed by the
Revisional Authority is concerned, if
any adverse order is passed by the
Revisional Court, without issuing notice
to the respondent, it is open to the
High Court to set aside the order and
remit the matter back for fresh
consideration but, at the same time, it
is not open to allow the Revision in its
entirety.”

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16.In view of the aforesaid legal analysis, it is
quite vivid that though the petitioner is one of
original complainant in the case, but he was
branded as a suspect at the instance of
respondent No. 2 and the application filed by
respondent No. 2 under Section 319 of the Cr.P.C.
branding him as an accused/suspect was rejected
by the trial Magistrate, but before the
revisional Court he was entitled to be noticed
and heard in his defence in view of the
provisions contained under Sections 399 read with
401(2) of the Cr.P.C. and following the binding
principles of law laid down by the supreme Court
in the aforesaid cited judgments in Mantharinbhai
(supra), Mohit(supra) and Central Bureau of
Investigation(supra), as such, the order passed
by the Additional Sessions Judge dated 17/07/2017
deserves to be and is accordingly set aside.
Matter is restored to the file of revisional
Court for hearing and disposal in accordance with
law after arraigning the present petitioner as a
party/respondent and then issuing notice and
granting him an opportunity to be heard and the
revision petition will be disposed of preferably

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within a period of 45 days from the date of
receipt of a copy of this order.

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17.Accordingly, this writ petition under Section 482

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of the Cr.P.C. stands allowed.

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18.A copy of this order be sent to the concerned
revisional Court by email/fax.

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Lalit Kumar Sahu v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Lalit Kumar Sahu v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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