Accused Is Entitled To Be Heard In A Revision Petition Against Dismissal Of Protest Petition: Supreme Court [Read Order]

The bench of Justice Navin Sinha and Justice Indira Banerjee set aside the order dated October 8, 2007, passed by the Additional Sessions Judge, whereby the Magistrate's order for dismissal of complaint against the Petitioner-accused was set aside, without giving him an opportunity of hearing.

The bench also set aside the High Court order dated March 6, 2009, whereby the order of the ASJ was upheld.

Recalling the verdict of a three-Judge bench of the Supreme Court in Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors., 2012 (10) SCC 517, the division bench reiterated,

"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."

Background

In the present case, the Petitioner had been accused of forging the complainant's signature and accordingly a complaint was filed before the Magistrate under Section 156(3) CrPC.

Post investigation, the Police submitted a closure report stating that the accusations were false. A notice was therefore issued to the Respondent-complainant who moved a protest petition.

The Magistrate, after hearing the Respondent, and not being satisfied, dismissed the complaint under Section 203 CrPC.

This order for dismissal of complaint was set aside by the ASJ and the matter was remanded back to the Magistrate. Subsequently, the High Court refused to interfere with the ASJ's order.

Findings

The Supreme Court observed that no notice was issued to the Petitioner-accused, in the revision proceedings before the ASJ. It therefore held that the order passed by the ASJ, and the order of non-interference passed by the High Court, are "unsustainable".

"The impugned orders dated 6.03.2009 and 08.10.2007 are held to be unsustainable in their present form. They are therefore set aside. The matter is remanded to the Additional Sessions Judge, Greater Mumbai to hear the revision application afresh after notice to the appellant also and then pass a fresh reasoned and speaking order to his satisfaction," the Supreme Court directed.

The court also rejected the Respondent's contention that dismissal of the Application under Section 156(3) CrPC at the pre-cognizance stage does not vest any right in the accused to be heard at the stage of remand in revision.

The Top Court observed that the protest petition moved the Respondent was filed as a "complaint case". Therefore, the order of dismissal of complaint was passed under Section 203 CrPC and not under Section 156(3) CrPC.

"The police after investigation submitted a report dated 05.04.2006 under Section 173(2) that the accusations were false. The Magistrate did not consider it necessary to proceed under Section 173(8) and issued notice to the complainant as to why the final report by the police be not accepted. The respondent filed a protest petition which was registered as a complaint case. 4 The Magistrate, after hearing the respondent, and not being satisfied, dismissed the complaint under Section 203 Cr.P.C. on 13.07.2006. It was therefore not a rejection of an application under Section 156(3) Cr.P.C. as was sought to be urged on behalf of the respondent," the court said.

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