KAREEM FATIMA Vs. HABEEB OMER

JUDGEMENT

(1.) PETITIONERS are A-1 to A-4 in Crime No. 103 of 2001 of Mangalhat Police station, Hyderabad, registered for the offence under Sections 465, 468 and 471 ipc read with Section 120-B IPC. The police, after investigation, filed a final report before the III Metropolitan Magistrate at Nampally, Hyderabad, stating that it is a case of 'mistake of Fact'. The complainant filed a protest petition and the same was dismissed by the trial Court holding that Section 195 (1) (b) (ii) of the Code of Criminal Procedure, 1973 (for short - 'the Code'), bars the taking cognizance of offences under Sections 471, 475 or 476 IPC and that the documents filed by the complainant are only Xerox copies of lists of jahez articles and though it is alleged that they are forged and fabricated documents, no complaint is made by the Magistrate. Being aggrieved by the said order, the complainant preferred Criminal Revision Petition No. 70 of 2003 on the file of the Additional Metropolitan Sessions Judge, Hyderabad, who allowed the petition by setting aside the order passed by the trial Court and directed the magistrate to proceed with the case according to law. Being aggrieved by the said order, the accused preferred the present revision petition.

(2.) THE learned counsel for revision petitioners submits that the revisional court without giving an opportunity of being heard to the petitioners directly passed the impugned order which caused any amount of injustice to them and, therefore, the order of revisional court is liable to be set aside. The learned counsel for first respondent submits that at the stage of taking cognizance of the offence, the role of the against whom an accusation has been made will not come into play, and when ones the cognizance of the offence is taken, then only the role of such person will come into play and so after that stage only the petitioners can take the remedies that are available to them either for quashing of the proceedings or for their discharge or for their acquittal.

(3.) IN support of his contention the learned counsel for first respondent relied on PRITISH v. STATE OF MAHARASHTRA AND OTHERS, 2002 0 CRLJ 548 wherein the apex Court observed that in the proceedings before a criminal court, before ordering prosecution, when the preliminary enquiry is going on, the Court is not under a legal obligation to hear the persons against whom an accusation is made. The scheme underlying Sections 340, 343, 238 and 243 of the Code clearly shows that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings. Once the prosecution proceedings commence, the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing to the person concerned at the stage of deciding whether such person should be proceeded against or not. The court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom the proceedings are to be taken before the Magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. The apex Court further observed that the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pretrial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged.