VIJAY KUMAR Vs. BACHNU

JUDGEMENT

(1.) AS a result of respondent's complaint dated 9th August, 1985, and recording of evidence under Section 202 of the Code of Criminal Procedure (for short the Code), the petitioner was summoned by the Chief Judicial Magistrate, Ropar, vide his order dated 7th October, 1985, to face trial under Section 232/505 of the Indian Panel Code. However, before the accused petitioner actually put in appearance before that court, the complaint was dismissed by the said court on 28th February, 1986, for the reason that the complainant had failed to carry out the directions given by the court vide its order dated 7th February. 1986, to furnish complete and better particulars of the accused within a period of four days from that order and to deposit the necessary process fee, etc. Apparently, this order was passed in terms of sub-section (4 of section 204 of the Code. The respondent successfully assailed this order before the Session Judge, Ropar by way of a revision petition. The learned judge without issuing notice to the accused, i e, the petitioner, allowed the revision of the respondent and while setting aside the order of the trial magistrate dated 28th February, 1986, directed him to carry on further proceedings in accordance with law. It is this order of the Sessions Judge dated 2nd April, 1986, which is impugned in this petition.

(2.) THE sole submission of Mrs. Madhu, learned counsel for the petitioners that the Sessions Judge could not pass the impugned order without affording an opportunity of being heard to the petitioner. Firstly, according to her, the dismissal of the complaint vide order dated 28th February, 1986, amounted to discharge of the accused in that case, and, secondly, even though the petition had been filed before the Session Judge under Section 397 of the Code, the provisions of sub-sections (2) to (5) of section 401 had to be read into that section in view of sub section (2) of section 399 of the Code. The later mentioned sub section lays down that where any proceeding by way of revision is commenced before a Sessions Judge under-sub section (1) which deals with the powers of the Sessions Judge in a revision the provisions of sub-section (2) to 5 of section 401 shall, so far as may be apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. Subsection(2) of section 40 lays down that 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 a pleader in his own defence. On the other hand, the stand of Shri Menh Raj, the learned counsel for the respondent/complainant, is that the later mentioned section of the Code is wholly irrelevant as the case in hand falls squarely within the four corners of section 398 of the same. Having given my thoughtful consideration to the respective contentions of the learned counsel for the parties I find no merit in this petition.

(3.) THE question then is whether the petitioner was entitled to be heard by the Sessions Judge while reversing the order of the trial Magistrate dated 28th February, 1986, dismissing the complaint against him. A bare reading of sub-section (2) of section 401 of the Code on which reliance is placed by the learned counsel for the petitioner in this regard indicates that only that person or accused who is likely to be prejudiced or is actually prejudiced by the order of the revisional court is entitled to be heard before the passing of the order by that court. No such situation arises in the case in hand by the he reversal of the order of the trial Magistrate dated 28th February. 1986, by the Sessions Judge. No prejudice has been caused to the petitioner or his position has not been altered in any manner as he was not on the scene at all, i.e. he was not before the trial court as an accused. Besides this, the submission of learned counsel appears to be totally irrelevant so far as the facts of the case in band are concerned. As has been noticed earlier. the petitioner had not is yet put in appearance as an accused before the trial court and the complaint against him had been dismissed in view of the Provisions of subsection(4) of section 204 of the Code. Against such an order, a revision petition did lie to the Sessions Judge and the same had to be dealt with under Section 398 of the Code. Proviso to ibis section which entitles only a person who has been discharged to an opportunity of showing cause before the order of discharge is upset or reversed by the revisional court makes the whole thing very clear. The implication of this proviso is that a person who is not discharged of who is not put on trial or has not put in appearance in court as an accused has no locus standi to be beard by the revisional court while setting, aside the order of dismissal of the complaint under Section 204(4) of the Code. The matter is not res integra. This Court in Messrs. Kirpa a Ram Jagan Nath v. Thakar Hans Raj AIR 1950 East Punjab 18 while examining a similar situation in the light of the provisions of section 436 of the Code as it then existed, and which is in pari material with the present section 398, expressed itself in the following manner.