KUBER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This is an application by the complainant under Section 482 Cr. P. C. for re-calling my order dated 8-5- 1979, passed in Criminal Revision No. 1480 of 1977. The complainant (hereinafter referred to as the applicant) filed a complaint against opposite party under Section 379 I. P. C. mentioning therein that he had raised Gehun and Lehsun crop in plots Nos. 216 and 220 in village Sirsa and the opposite parties dishonestly and wrongfully cut the same and removed it to their house. The opposite-parties denied the charge made against them. The trial Court held that the opposite-parties had committed theft of the Gehun and Lehsun crop belonging to the applicant and it, therefore, convicted them under Section 379 I. P. C. and sentenced them to three month's R. I. each and a fine of Rs. 150/ -. Aggrieved, they went up in appeal, but in vain. They then came up in revision (Criminal Revision No. 1480 of 1977) to this Court, and at the time of hearing assailed the correctness of the orders passed by the Courts below. I heard this revision on 8-5-1979 and allowed it. While allowing the revision I remarked that a bona fide dispute in regard to the ownership of plots Nos. 216 and 220 had been going on between the parties and each side claimed to be in possession of those plots to the exclusion of the other. And it was in this background that the opposite parties had cut the Gehun and Lehsun crop standing on plots Nos. 216 and 220. My view was that as the opposite parties had cut the Gehun and Lehsun crop in assertion of a contested claim of right, they cannot be said to have committed theft of the same when they cut it and removed it to their house. The applicant has now filed the present application for recalling my order dated 8-5-1979 on the ground that no opportunity of being heard was given to him in revision and as such this order stood vitiated. It is true that no notice of the hearing of this revision was given to the applicant, but, in my opinion, it was not necessary to do so under law. No provision in the Code of Criminal Procedure has been shown to me under which a notice to the complainant is to be given in a revision arising out of a case instituted upon a complaint. In the case of an appeal such a provision exists. Section 386 Cr. P. C. says that if an appeal against conviction arising out of a case instituted upon complaint has been admitted for hearing, then a notice about it has to be given to the complaint. The provision about giving notice of the hearing of an appeal of this kind is mandatory and cannot be waived. No such correspond ing provision exists in regard to the hearing of a revision arising out of a case instituted upon a complaint. Had the legislature intended that in revisions also notice of hearing must be given to the complainant, it would certainly have made a provision like the one that it made in regard to the hearing of appeals. The fact that the legislature made no provision for giving notice of hearing to the complainant in a revision shows that it never intended that notice for its hearing should be given to him. The learned counsel for the applicant drew my attention to Section 401 sub-clause (2) Cr. P. C. and on the basis of this provision urged that notice about the hearing of this revision must have been given to his client. Section 401 sub-clause (2) reads as follows: "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 by pleader in his own defence. " The learned counsel contended that the words "other person" used in the above sub-clause should include the complainant also, and, therefore, it was incumbent on the part of this Court to have given an opportunity to the applicant of being heard. I have given my anxious consideration to this submission of the learned counsel and my view is that the words "other person" should not include the complainant. The "other person" should be someone similarly placed like the accused. I say so because it is only an accused or a person placed like him, who can put up a 'defence'. This 'defence' he can put up either personally or through a pleader. There can be no question of a complainant putting up a defence in a case started by him. The learned counsel for the applicant next relied on sub-clause (1) of Section 401 Cr. P. C. and contended that as the power of the High Court in hearing a revision is more or less analogous to its power in hearing an appeal, it was necessary that is should have give n a notice of the hearing of the revision to the applicant in the same way as a notice is given to the complainant while hearing an appeal arising out of a case instituted upon complaint. The power of the High Court in hearing a revision may be analogous to its power in hearing an appeal, but the procedure prescribed for hearing a revision is quite different from the procedure prescribed for hearing an appeal. The Code of Criminal Procedure has prescribed one procedure for hearing an appeal and another for hearing a revision. The procedure prescribed for one cannot be mixed up with the procedure prescribed for the other. In regard to the hearing of an appeal arising out of a case instituted upon a complaint, sending of notice to the complainant is a must and, therefore, a notice has to go to him before the appeal can be heard. Such a provision does not exist in regard to the hearing of a revision and, therefore, it is not at all necessary that a notice of hearing should be given to the complainant. Lastly, the learned counsel contended that if nothing else, notice should have gone to applicant on the basis of the principles of natural justice because no order can be passed against anybody without giving him an opportunity of being heard. The concept underlying the principles of natural justice is well established and has even found place in our Constitution, but despite that the learned counsel drew my attention to several decisions in support of his contention; they were Sunil Kumar Ghosh v. AJit Kumar Das and others 1969 Cr. L. J. 1234, Ram Adhar and others v. State A. I. R. 1954 All. 645, and Dr. Raghubir Saranv. State of Bihar and another, A. I. R. 1964 S. C. I. I have gone through all these rulings with pleasure and profit and I may say here atonce that they do not apply at all to the facts of the case before us. In the first case one Sunil Kumar made a report at the police station wherein he mentioned that the accused persons broke the fencing of his shop and when he tried to intervene they threatened to assault him. The police investigated into the case and sent up the accused persons to stand their trial under Sections 427, 447 and 323 I. P. C. The case proceeded in the Court of Magistrate First Class Howrah and the Magistrate recorded the state ments of the parties, heard arguments in the case and fixed a date for delivery of judgment. The Magistrate deferred delivery of judgment on several dates on one ground or the other. This this lasted for about three months. Ulti mately he retired without delivering the judgment. After some time another Magistrate was posted in his place and he also fixed several dates for delivery of judgment. Eventually he delivered the judgment acquitting all the accused persons of the various charges. The complainant went up in revision against the order of the Magistrate acquitting the accused persons. The High Court allowed the revision saying that the successor Magistrate had followed a procedure not known to law by not giving the parties an oppor tunity to advance arguments before the delivery of the judgment vitiating the same thereby. According to the High Court, the opportunity of being heard is the sine qua non of any proper and legal determination of any dispute and, therefore, principles of natural justice demand that the Magistrate should have heard both the parties before delivering the judgment in the case. The facts of this case are quite different from the fact before us. In the case under reference both the parties were represented in Court and still the successor Magistrate decided the case without hearing them. This was improper and certainly against principles of natural justice. In the case before us it was not necessary under law to give notice of the hearing of the revision to the appli cant. Trerefore, no principles of natural justice were violated in this case. In the second case Ram Adhar and others v. State (supra), the facts of the case have not been fully stated in the judgment. It appsars from the judgment that the Sessions Judge had refused to hear arguments proposed to be addressed by the counsel of one of the parties and delivered the judgment. This thing was strongly deprecated by this Court. This Court observed that justice must not only be done but also must seem to be done and, therefore, it was absolutely necessary on the part of the Court below to have heard the arguments of the parties in the case before delivering the judgment. Again, the facts of this ruling have no relevance to the facts of the case before us. The applicant was a necessary party to the case and there was, therefore, no question of giving him a hearing. The Court heard the counsel for the State and also the counsel for the opposite parties and then finally decided the case. In the third case Dr. Raghubir Saran v. State of Bihar and another (supra), a matter of bail was pending in the Court of a Munsif Magistrate. The Munsif Magistrate called for a report from Medical Officer about the health of the accused. The Medical Officer submitted a report, and on the basis of that report he released the accused on bail. However, while releasing the accused on bail he made some adverse comments against the Medical Officer in the order passed by him. The Medical Officer filed an application under Section 561-A Cr. P. C. in the High Court at Patna for exjunction of the adverse remarks made by the Munsif Magistrate against him. His application was rejected by the High Court. Aggrieved, the Medical Officer went up in appeal to the Supreme Court against the order of the High Court. The Supreme Court refused to interfere with the order passed by the High Court on the ground that the order passed by the Munsif Magistrate had become final as it had not been got set aside in the manner had described by law. It observed that once the order become final, the High Court rightly did not exorcise its inherent powers under Section 561-A. However, at the same time it mentioned that there is a self imposed duty, in a Judge not to make irrelevant remarks or observations against persons not present before him. Again I may mention that this ruling has no application to the facts of the case before us. Nothing adverse has been said by me against the applicant in this case in my order dated 8-5-1979. To say that nothing could also be said or observed in regard to the case put forward by the applicant without giving him an opportunity of being heard would be totally wrong. He could have been heard only if the law wanted him to be heard. In this case the law did not require that a notice of the hearing of the revision should have been given to the applicant. It was for this reason that no notice was given to him and the case was hoard and decided after hearing the State Counsel and the counsel for the opposite parties. In my opinion, the application made by the applicant for re-hearing the revision is absolutely misconceived and must, therefore, fail. In the result, I find no force in this application and dismiss it accordingly. .