Accused Has Right To Be Heard In Revision Challenging Dismissal Of Complaint: Punjab & Haryana High Court Sets Aside Order Restoring Complaint

Observing that where the complaint was dismissed and thereafter challenged in the revision petition the accused has right to be heard, the Punjab & Haryana High Court has set aside the order of a Session Court which was passed in revision petition without issuing process to the accused.

Justice Jasjit Singh Bedi said, "A perusal of Section 401 Cr.P.C. as discussed by the Hon’ble Supreme Court in Manharibhai Muljibhai Kakadia and another (Manharibhai Muljibhai Kakadia and another versus Shaileshbhai Mohanbhai Patel and others, [2012(4) RCR (Criminal) 689]), would show that where a complaint has been dismissed by the Magistrate and the said order has been challenged by the complainant in a revision petition before the High Court or the Sessions Court, the persons who are arraigned as accused in the complaint have a right to be heard in such a revision petition."

These observation came in response to the plea filed one Harinder Singh, seeking quashing of the order passed by Session Judge, Mohali.

A Criminal complaint was filed against Singh for Cheating under Sections 420, 406, 465, 466, 467, 471 and 120-B IPC. However, it was dismissed by the Trial Court for non-appearance of the complainant.

The complainant filed a revision petition against the dismissal order and the Session judge without issuing process to the accused set aside the order dated and restored the complaint to its original number and remanded the case back to the Trial Court to proceed in accordance with law.

The counsel for the petitioner contended that the impugned order was liable to be set aside in view of the provisions of Section 401 CrPC.

On the other hand the counsel for the state argued that as the complaint case was dismissed-in-default at the pre-summoning stage, there was no need to issue process to the prospective-accused, and therefore, the impugned order had rightly been passed.

Considering the petition, the Court referred to Manharibhai Muljibhai Kakadia and another v. Shaileshbhai Mohanbhai Patel and others, [2012(4) RCR (Criminal) 689], in which the Apex Court held that, "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 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 crime is entitled to hearing by the revisional court. In other words, where 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."

Examining Section 401 of the CrPC and drawing from the precedent set in the case of Manharibhai Muljibhai Kakadia and another (supra), Justice Bedi articulated that if a complaint has been dismissed by the Magistrate and the complainant subsequently challenges the magistrate's order through a revision petition before the High Court or Sessions Court, the person arraigned as an accused in the complaint have the right to present his arguments and be heard during the proceedings of that revision petition.

While noting that the in the present case, the order to restore the complaint was passed without hearing the accused, the Court quashed the same.

Consequently, the plea was disposed of and directions were passed to examine the matter afresh after hearing the accused.

Appearance: B.P.S. Virk, Advocate for the petitioner.

Pushpinder Kaushal, Advocate, for the respondent.

Citation: 2023 LiveLaw (PH) 239

Title: Harinder Singh v. Rajinder Singh

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