LILLY VARGHESE Vs. E V RADHAKRISHNAN

JUDGEMENT

(1.) The first respondent in this petition had filed a criminal complaint against the petitioner for alleged offences under S.426 and 451 IPC. Sworn statement was taken and on a consideration of the complaint and the sworn statement the learned Sub Magistrate of Ernakulam dismissed the complaint under S.203 Cr. P.C. The first respondent then filed Cr. R. P. 12/65 before the District Magistrate, Ernakulam under S.436 Cr. P.C. for ordering further enquiry into the complaint that had been dismissed. The revision petitioner then presented a petition before the District Magistrate seeking to get herself impleaded in the revision petition for the purpose of opposing the petition. The parties were heard and the learned District Magistrate dismissed the petition on the ground that it was not necessary or proper for the accused to come in at that stage. Aggrieved with the order this revision petition has been filed.

(2.) What is now argued is that the petitioner should have been impleaded and notice should have been ordered and she should have been given an opportunity of contesting the petition. Learned counsel would argue that even though statutorily there may not be a right to be heard there is at any rate no statutory prohibition and that it is always desirable to issue notice to an accused person in a case like this.

(3.) This is the view that is taken in a recent decision of the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose ( AIR 1963 SC 1430 ). One of the questions that was considered was whether an accused has locus standi to appear and contest a criminal case before the issue of process and their Lordships held that the accused had no right to do so. Their Lordships stated that it was clear from the entire scheme of Chap.16 of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued, and as the very question for consideration is whether he should be called upon to face an accusation, he has no right to take part in the proceedings and the Magistrate has no jurisdiction to permit him to do so. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. Their Lordships further stated that an enquiry under S.202 can, in no sense, be characterised as a trial for the simple reason that in law there can be but one trial for an offence, and that permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry.