A Supreme Court bench comprising of Justice T.S. Thakur and Justice C. Nagappan in a judgment delivered on Monday, observed that the appellant who is an accused person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code and on this ground, setting aside an order of the High Court and remitting the matter.
The appeal was filed against an order by the Patna High Court whereby the Court allowed the Criminal revision filed by the respondent.
The respondent's father had filed a complained against five persons alleging that they had committed murder of son of the complainant by name Anil Paswan by administering poison. The investigation officer submitted the final report in the case against accused No.1 Sunita Devi alone under Section 328/302 IPC for the murder of Anil Paswan. Subsequently, the other accused were discharged and the complainant's protest-cum-complaint petition was rejected by the Addl. Chief Judicial Magistrate.
Aggrieved by this rejection, a revision petition was filed by Sunil Paswan, in the Patna High Court under Section 397 and 401 of the Code of Criminal Procedure. The High Court set aside the order of the Addl. CJM and remanded the matter to the court below for proceeding in accordance with law treating the protest-cum-complaint petition as a complaint.
This order of the High Court was challenged before the apex court by one of the accused.
The appellants contended that Section 401(2) of the CrPC stipulates that no order in exercise of the power to revision shall be made by the High Court to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his own defence. The High Court in criminal revision did not issue notice to the appellant herein who is accused No.4 in the FIR and without providing an opportunity to him has exercised jurisdiction under Section 401 by directing to proceed in accordance with law treating the protest petition as the complaint, to the prejudice of the appellant herein and hence the impugned order of the High Court is liable to be set aside.
The court noted that the High Court did in fact pass the impugned order without issuing notice to the concerned accused.
The impugned order was set aside and remitted the matter for fresh consideration by the High Court. The HC was directed to issue notice to all the concerned accused and thereafter hear and dispose of the criminal revision petition in accordance with law.
Read the judgment here.