TaxTMI 
TaxTMI 
2012 (10) TMI 979
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....ated forged documents bearing signatures of the complainant, his father and uncle, two sons of his uncle and his elder brother and have used the said documents as true and genuine by producing the same before the District Registrar, Cooperative Society, Nanpura, and by making false representation obtained registration of Indoregency Cooperative Housing Society Limited and by doing so the accused (appellants) have caused financial loss and physical and mental agony to the complainant and his family members and have deceived the complainant and his family members by obtaining huge financial advantage by taking possession of the complainant's property. It was, thus, alleged that the appellants have committed offences punishable under Sections 420, 467, 468, 471 and 120-B, IPC. 4. The CJM in exercise of his power under Section 202 of the Code by his order dated 18.6.2004 directed the enquiry to be made by the Police Inspector, Umra Police Station, into the allegations made in the complaint and submit his report within thirty days therefrom. 5. The Investigating Officer investigated into the matter and submitted 'C' Summary Report. In the opinion of the Investigating Officer, the ....
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....r challenge in revisional jurisdiction. Learned senior counsel submitted that "prejudice" may cover wide range of situations and must be considered in wider sense. Section 401 does not make any distinction between pre-process stage and post-process stage. Sub-section (2) of Section 401 is applicable regardless and whether or not process has been issued under Section 204 of the Code. 12. It was also submitted on behalf of the appellants that cognizance had been taken by the CJM. Cognizance is not equivalent to issuance of process; it is taken prior to issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in the complaint or to the police report or upon information received from any other person that an offence has been committed. In this regard, reliance was placed on Jamuna Singh and others v. Bhadai Sah[(1964) 5 SCR 37] , Kishun Singh and others v. State of Bihar[(1993) 2 SCC 16] and State of Karnataka and another v. Pastor P. Raju[(2006) 6 SCC 728]. 13. Ms. Meenakshi Arora, learned counsel for the respondent no. 1, on the other hand, stoutly defended the order of the High Court. She would argue tha....
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....e Code whereas in the present case the CJM has accepted the 'C' Summary Report under Section 173 after the investigation was done by the police. 16. In order to appreciate the rival submissions, some of the provisions of the Code need to be referred to. Section 156 deals with Police Officer's power to investigate cognizable case. It reads as follows: "S. 156. Police Officer's power to investigate cognizable case. - (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned." 17. Section 190 falls in Chapter XIV and reads as under: "S. 190. Cognizance of offences by Magistrates. - (1) Subject to the provisions of this Chapter, any Magis....
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....diction postpone the issue of process against the accused, and either inquire into the 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: Provided that no such direction for investigation shall be made- (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge ....
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....ectness, legality or propriety, inter alia, of any order passed by such inferior court. The powers of revision are concurrent with the High Court and the Sessions Judge. By virtue of Section 399, 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 and while doing so the provisions of sub-sections (2),(3),(4) and (5) of Section 401 apply to such power as far as possible. Section 401 deals with High Court's power of revision and it reads as follows : "S. 401. High Court's powers of revision.-(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (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 b....
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....rned. 24. In Chandra Deo Singh7, a four-Judge Bench of this Court had an occasion to consider Section 202 of the old Code. The Court referred to the earlier decision of this Court in Vadilal Panchal14 and few previous decisions, namely, Parmanand Brahmachari v. Emperor[AIR (1930) Patna 30], Radha Kishun Sao v. S.K. Misra and Anr. [AIR (1949) Patna 36], Ramkisto Sahu v. The State of Bihar[AIR (1952) Patna 125], Emperor v. J.A. Finan[AIR (1931) Bom 524], Baidya Nath Singh v. Muspratt and others[ILR (1886) XIV Cal 141] and it was held that the object of provisions of Section 202 (corresponding to present Section 202 of the Code) was to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. It was further held that an accused person does not come into the picture at all till process is issued. 25. In Smt. Nagawwa8, this Court had an occasion to consider the scope of the inquiry by the Magistrate under Section 202 of the old Code. This Court referred to the earlier two decisions in Vadil....
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.... such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code. 14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case [(1992) ....
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....officer or from such other person who has been directed to investigate into the allegations, if, in the opinion of Magistrate taking cognizance of an offence there is no sufficient ground for proceeding, complaint is dismissed under Section 203 or where the Magistrate is of the opinion that there is sufficient ground for proceeding, then a process is issued. In a summons case, summons for the attendance of the accused is issued and in a warrant case the Magistrate may either issue a warrant or a summons for causing the accused to be brought or to appear before him. 28. Pertinently, Chapter XV uses the expression, "taking cognizance of an offence" at various places. Although the expression is not defined in the Code, but it has acquired definite meaning for the purposes of the Code. 29. In R.R. Chari v. The State of Uttar Pradesh [(1951) SCR 312], this Court stated that taking cognizance did not involve any formal action or indeed action of any kind but it takes place no sooner a Magistrate applies his mind to the suspected commission of an offence. 30. In Narayandas Bhagwandas Madhavdas v. The State of West Bengal[AIR (1959) SC 1118], this Court considered the expression, ....
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....he offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons." 34. The above cases where the expression, "taking cognizance of an offence" for the purposes of the Code (old as well as new) has been explained have been noted by a two-Judge Bench of this Court in Pastor P. Raju6. The Court in para 13 of the Report referred to the distinction between "taking cognizance of an offence" and "issuance of process" and observed as under: "13. ........Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before....
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.... Cr.P.C. in the matter of the said complaint for police investigations it is hereby ordered to send the said inquiry to the P.I., Umra, Police Station. And, he is ordered to investigate thoroughly in this matter and within 30 days present the report before this Court". 39. From the above order passed by the CJM, there remains no doubt that on 18.06.2004, he had taken cognizance although he postponed issue of process by directing an investigation to be made by Police Officer. The submission of the learned counsel for the respondent no.1 that the CJM had not taken cognizance in the matter and the complaint was dismissed under Section 203 at the pre-cognizance stage has no substance and is rejected. 40. The question now is, in a matter of this nature where complaint has been dismissed by the Magistrate under Section 203 post-cognizance stage and pre-issuance of process, whether on challenge to the legality of the order of dismissal of complaint being laid by the complainant in a revision application before the High Court, the persons who are arraigned as accused in the complaint have a right to be heard. 41. Before we deal with the above question further, some of the decision....
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....ion 403 of the Code of Criminal Procedure, by learned Advocate Shri J.R. Nanavati. There again at first sight it might appear that party referred to in the said section could be a party other than one arrayed before the Court on either side, but when we realise that the matter to be dealt with under Chapter 30 of the Code of Criminal Procedure wherein occurs Section 403 power is that of a Revision and it being the power exercised by the Court, a party may or may not be heard as the Court may decide and this alone would explain the inclusion of Section 403 in that Chapter. 8. Otherwise all the procedural laws have as its foundation the maxim Audi Alterem Partem and at all stages wherever the need be there are provision for issuance of notice and making sure that the party against whom the orders are being sought is heard. Therefore, there was no need of inclusion of Section 403 at the place where we find it and we can appreciate it only and only if bearing in mind the fact that it being a chapter dealing with revisional jurisdiction which is expressly privilege of the Court realising the order of subordinate Court that there might be an occasion, the party need not be or may not ....
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....ed by the accused seeking quashment of the order passed by the Sessions Judge setting aside the order of the CJM whereby the complaint was dismissed for want of prosecution. The dismissal of complaint by the CJM for want of prosecution was at the initial stage. The challenge to the order of the Sessions Judge by the accused was on the ground that the Sessions Judge while allowing the revision application had infringed the provisions of Section 401(2) of the Code inasmuch as no opportunity of being heard was given to the accused although the complaint was dismissed for want of prosecution. The Single Judge of that Court took the view as follows : "14. .......By no stretch of imagination, in my opinion, the accused can seek the setting aside of the order passed by the Sessions Judge on the ground that the said order was passed by the Sessions Judge without issuing notice to the accused. As referred to above, the accused petitioner cannot take benefit of provisions of Section 401(2) Cr.P.C. as it could not be said that any order to the prejudice or against the petitioner had been passed by the learned Sessions Judge. On the other hand, the order, - vide which the complaint was dism....
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....by pleader in defence. The Single Judge of that Court on consideration of the submissions of the parties and the decisions cited before him culled out the legal position as follows : "20. xxx xxx xxx 1) There is a distinction to be drawn between the criminal complaint cases which are at the pre-cognizance stage and those at the post-cognizance stage. There is a further distinction to be drawn between the cases at the post- cognizance but pre-summoning stage and those at the post- summoning stage. (2) It is only at the post-summoning stage that the respondents in a criminal complaint would answer the description of an 'accused'. Till then they are like any other member of the public. Therefore at the pre-summoning stage the question of their right to be heard in a revision petition by the complainant in their capacity as "accused" in terms of Section 401(2) CrPC does not arise. 3) At the post-cognizance but pre-summoning stage, a person against whom the complaint is filed might have a right to be heard under the rubric of 'other person' under Section 401(2) CrPC. If the learned MM has not taken the cognizance of the offence then no right whatsoever accrues to such "other....
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....er the said remand, the fate of the complaint case could either be dismissal under Section 203 or under 204 Cr.P.C., if the Court with the fresh material before it, comes to the conclusion to proceed against the respondent. Since in the present case the process was not yet issued against the petitioner and the complaint was dismissed under S. 203 of Cr.P.C., therefore, preceding the said stage, the petitioner had no right to seek opportunity of hearing before the Revisional Court in the light of the legal position discussed above." 47. It may not be out of place to refer to an earlier decision of the Delhi High Court in A.S. Puri v. K.L. Ahuja[AIR 1970 Delhi 214]. In that case, inter alia, the question before the High Court was whether Additional Sessions Judge had committed an error in hearing the arguments of the accused's counsel to whom he had not ordered notice of the revision petition filed before him by the complainant. The Single Judge of that Court dealt with the question as under : "25. .....This question need not detain us because the learned Additional Sessions Judge had invited the counsel for Mr. Puri to address arguments, when he was present in Court at the tim....
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....rcise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. Three expressions, "prejudice", "other person" and "in his own defence" in Section 401(2) are significant for understanding their true scope, ambit and width. Black's Law Dictionary [Eighth Edition] explains "prejudice" to mean damage or detriment to one's legal rights or claims. Concise Oxford English Dictionary [Tenth Edition, Revised] defines "prejudice" as under : "1. Preconceived opinion that is not based on reason or actual experience. > unjust behaviour formed on such a basis. 2. harm or injury that results or may result from some action or judgment. v.1 give rise to prejudice in (someone); make biased. 2. cause harm to (a state of affairs)". 49. Webster Comprehensive Dictionary [International Edition] explains "prejudice" to mean (i) a judgment or opinion, favourable or unfavourable, formed beforehand or without due examination ; detriment arising from a hasty and unfair judgment; injury; harm. 50. P. Rama....
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....ourt 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. 55. In P. Sundarrajan1, a two-Judge Bench of this Court was concerned with a case where a complaint under Section 420 IPC came to be dismissed by the Judicial Magistrate. Against the order of dismissal of the complaint, the complainant preferred revision petition before the High Court. The High Court was of the view that no notice was necessary to the suspects for disposal of the revision and set aside the order of the Magistrate and directed the Magistrate to proceed with the complaint afresh in accordance with law. Against the order of the High Court, the suspects approached this Court under Article 136. The Court granted leave and allowed the appeal, set aside the order of the High Court and sent the matter back to t....
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....ections 397, 399 and 401 were noticed by this Court and so also few earlier decisions including Chandra Deo Singh, Vadilal Panchal, P. Sundarrajan and then in paragraphs 22 and 23 (Pg. 369) of the Report, the Court held as under : "22. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156(3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code. 23. We, therefore, are of the opinion that the impugned judgment cannot be sustained and is set aside accordingly. The High Court shall implead the appellant as a party in the criminal revision application, hear the matter afresh and pass an appropriate order." 57. In a comparatively recent order in A. N. Santhanam, a two- Judge Bench of this Court was concerned with a question, whether the High Court committed an error in disposing of the criminal revisio....