No Adverse Order against the Accused in Criminal Revision without Issuance of Notice

 

Introduction

 

Whether a Court could decide a Criminal Revision to the detriment of an Accused without even issuing a Notice to him, was the question decided by the Hon’ble Supreme Court of India in a recent judgment.

 

In the said case, Subhash Sahebrao Deshmukh v. Satish Atmaram Talekar & Others, a Complaint under 156 (3) of the Code of Criminal Procedure (in short, “CrPC”) alleging commission of offences under S. 420, 467, 468, 120B, 114 & 34 of the Indian Penal Code (IPC), was filed against an accused which was dismissed by the Magistrate. Thereafter, such rejection was challenged before the Court of Additional Sessions Judge by way of filing a Criminal Revision who allowed the said Criminal Revision without even issuing Notice or giving an opportunity to be heard, in that Criminal Revision. Such Order passed by the Court of Additional Sessions Judge was also upheld by the High Court. Thus, the matter came up before the Supreme Court where the Accused was the Appellant.

 

Reasoning of the Court

 

The Hon’ble Supreme Court after considering the arguments advanced by all the parties came to the conclusion that the restoration of the Complaint by the Additional Sessions Judge was undoubtedly to the prejudice of the Appellant.

 

To fortify this observation, the Hon’ble Supreme Court relied upon the observations made in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, 2012 (10) SCC 517 wherein it was held as under: -

 

“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 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.”

 

Thus, the Hon’ble Supreme Court set aside the Orders passed by the High Court and the Court of Additional Sessions Judge and directed the Court of Additional Sessions Judge to hear matter afresh.

 

Concluding Remarks

 

I totally agree with the reasoning adopted by the Court as without an opportunity of hearing to the accused, it would be a travesty of justice to pass any Order against him. Any proceedings by way of which criminal action could be initiated against any person must not be held without giving a chance to the accused to present his case. This becomes extremely important in light of existence of a statutory provision in this regard i.e. Section 401 (2) of the CrPC which states as under: -

 

“(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.”

 

Further, in order to balance the rights of the accused vis-a-vis the Complainant, Manharibhai (supra) also held that when the Revision Court sends the matter back to the Magistrate Court for fresh consideration then the accused persons will have no right to participate in the proceedings or hearing until the consideration of the matter by the Magistrate for issuance of process.