SUBHASH SAHEBRAO DESHMUKH Vs. SATISH ATMARAM TALEKAR

JUDGEMENT

(1.) The petitioner, an accused in the complaint case, is aggrieved by the refusal of the High court to interfere with the order of the Additional Sessions Judge, setting aside the order of the Special Metropolitan Magistrate, dismissing the complaint under Section 203 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.")

(2.) Learned counsel for the appellant submits that respondent no.l filed a complaint under Section 156(3) Cr.P.C. alleging offences under Sections 420, 467, 468, 120B, 114 and 34 of the Indian Penal Code. The Magistrate called for a report from the police. The police, after investigation submitted report that the allegations were false. Notice was issued to the complainant, who then filed a protest petition seeking an order of cognizance and issuance of process. The Magistrate, after hearing the respondent and not being satisfied dismissed the complaint. Aggrieved, the complainant preferred a criminal revision before the Additional Sessions Judge in which the appellant was impleaded as a party respondent. No notice was issued to the appellant. The revision application was allowed and the matter remanded to the Magistrate. Relying upon Sections 399 and 401(2) Cr.P.C, it was submitted that no order to the prejudice of the appellant could have been passed without hearing him after dismissal of the complaint. The Additional Sessions Judge erred in passing the remand order in exercise of revisional jurisdiction placing reliance on Section 398 Cr.P.C. to direct further investigation by the Magistrate. The High Court further erred in holding that no opportunity of hearing was required under Section 398 Cr.P.C. if the direction for further inquiry was being passed after dismissal of the complaint as opposed to a discharge. Effectively, the complaint case was therefore restored to the prejudice of the appellant. Reliance was placed on Manharibhai Muljibhai Kakadia and another vs. Shaileshbhai Mohanbhai Patel and others, 2012 (10) SCC 517.

(3.) Learned counsel for respondent no.l submitted that the dismissal of the application under Section 156(3) Cr.P.C. at the precognizance stage, does not vest any right in the accused to be heard at the stage of remand in revision for further inquiry. Merely because the Magistrate may have called for a police report, it does not tantamount to taking cognizance. There has been no dismissal of the complaint under Section 203 Cr.P.C., entitling the appellant to be heard in the revisional jurisdiction.