Case Note & Summary
The appellant, Subhash Sahebrao Deshmukh, was an accused in a complaint case filed by respondent no.1, Satish Atmaram Talekar, before the Special Metropolitan Magistrate. The respondent alleged that the appellant and others had cheated and forged his signatures on blank papers, showing him as the sole proprietor of M/s Shivam Wines when he was actually a partner, and that his resignation from the partnership was also forged. Consequently, in a recovery suit filed by a bank, his private property was auctioned. The Magistrate, acting under Section 156(3) CrPC, directed police investigation. The police submitted a final report under Section 173(2) stating the allegations were false. The Magistrate issued notice to the complainant, who filed a protest petition. After hearing the complainant, the Magistrate dismissed the complaint under Section 203 CrPC on 13.07.2006. The complainant preferred a criminal revision before the Additional Sessions Judge, who set aside the dismissal order on 08.10.2007 and directed further inquiry by the Magistrate, without issuing notice to the appellant. The High Court declined to interfere. The appellant appealed to the Supreme Court, arguing that the revisional order was passed without hearing him, in violation of Sections 399 and 401(2) CrPC. The respondent contended that the dismissal was at the pre-cognizance stage and no right of hearing accrued. The Supreme Court held that the dismissal was under Section 203 CrPC, not a mere rejection of an application under Section 156(3) CrPC. Relying on Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, the Court held that the accused has a right to be heard in a revision against dismissal of complaint under Section 203 CrPC. The impugned orders were set aside and the matter remanded to the Additional Sessions Judge for fresh hearing after notice to the appellant.
Headnote
A) Criminal Procedure - Right of Hearing in Revision - Section 401(2) CrPC - Accused entitled to hearing when revision is filed against dismissal of complaint under Section 203 CrPC - The Supreme Court held that the order of the Additional Sessions Judge restoring the complaint and directing further inquiry was passed without hearing the appellant-accused, violating Section 401(2) CrPC. Relying on Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, the Court held that the accused has a right to be heard in such revision. The impugned orders were set aside and the matter remanded for fresh hearing after notice to the appellant. (Paras 2-8) B) Criminal Procedure - Dismissal of Complaint under Section 203 CrPC - Distinction from rejection of application under Section 156(3) CrPC - The Magistrate, after receiving a police report under Section 173(2) and a protest petition, dismissed the complaint under Section 203 CrPC. The Court clarified that this was not a mere rejection of an application under Section 156(3) CrPC, but a dismissal of the complaint after considering the protest petition, thus attracting the right of hearing under Section 401(2) CrPC. (Paras 4-5) C) Criminal Procedure - Power of Magistrate after accepting final report - Section 190(1)(a) CrPC - The Magistrate has the power to take cognizance on a protest petition even after accepting the final report, provided the protest petition satisfies the ingredients of a complaint. The Court cited B. Chandrika v. Santhosh to reiterate this settled law. (Para 6)
Issue of Consideration
Whether the accused is entitled to a hearing in a revision petition filed by the complainant against the dismissal of the complaint under Section 203 CrPC, and whether the revisional court can direct further inquiry without hearing the accused.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned orders dated 06.03.2009 and 08.10.2007, and remanded the matter to the Additional Sessions Judge, Greater Mumbai to hear the revision application afresh after notice to the appellant and pass a fresh reasoned order.
Law Points
- Right of accused to be heard in revision against dismissal of complaint under Section 203 CrPC
- Section 401(2) CrPC
- Section 398 CrPC
- Section 156(3) CrPC
- Section 173 CrPC
- Section 190(1)(a) CrPC
- Section 203 CrPC
- Section 399 CrPC
