Subhash Sahebrao Deshmukh vs Satish Atmaram Talekar

NON­REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2183 OF 2011

SUBHASH SAHEBRAO DESHMUKH ...APPELLANT(S)

VERSUS

SATISH ATMARAM TALEKAR AND OTHERS ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The petitioner, an accused in the complaint case, is aggrieved

by the refusal of the High court to interfere with the order of the

Additional Sessions Judge, setting aside the order of the Special

Metropolitan Magistrate, dismissing the complaint under Section

203 of the Code of Criminal Procedure (hereinafter referred to as Signature Not Verified

"the Cr.P.C.”) Digitally signed by SUSHMA KUMARI BAJAJ Date: 2020.06.18 16:50:12 IST Reason: 1

2. Learned counsel for the appellant submits that respondent

no.l filed a complaint under Section 156(3) Cr.P.C. alleging offences

under Sections 420, 467, 468, 120­B, 114 and 34 of the Indian

Penal Code. The Magistrate called for a report from the police. The

police, after investigation submitted report that the allegations were

false. Notice was issued to the complainant, who then filed a protest

petition seeking an order of cognizance and issuance of process.

The Magistrate, after hearing the respondent and not being satisfied

dismissed the complaint. Aggrieved, the complainant preferred a

criminal revision before the Additional Sessions Judge in which the

appellant was impleaded as a party respondent. No notice was

issued to the appellant. The revision application was allowed and

the matter remanded to the Magistrate. Relying upon Sections 399

and 401(2) Cr.P.C, it was submitted that no order to the prejudice

of the appellant could have been passed without hearing him after

dismissal of the complaint. The Additional Sessions Judge erred in

passing the remand order in exercise of revisional jurisdiction

placing reliance on Section 398 Cr.P.C. to direct further

2 investigation by the Magistrate. The High Court further erred in

holding that no opportunity of hearing was required under Section

398 Cr.P.C. if the direction for further inquiry was being passed

after dismissal of the complaint as opposed to a discharge.

Effectively, the complaint case was therefore restored to the

prejudice of the appellant. Reliance was placed on Manharibhai

Muljibhai Kakadia and another vs. Shaileshbhai Mohanbhai

Patel and others, 2012 (10) SCC 517.

3. Learned counsel for respondent no.l submitted that the

dismissal of the application under Section 156(3) Cr.P.C. at the pre­

cognizance stage, does not vest any right in the accused to be heard

at the stage of remand in revision for further inquiry. Merely

because the Magistrate may have called for a police report, it does

not tantamount to taking cognizance. There has been no dismissal

of the complaint under Section 203 Cr.P.C., entitling the appellant

to be heard in the revisional jurisdiction.

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4. We have considered the submissions on behalf of the parties.

The complaint filed by respondent no.1 before the Magistrate under

Section 156(3) Cr.P.C. alleged that by cheating and forging his

signatures on blank papers, he had been shown as the sole

proprietor of M/s Shivam Wines, when in fact he was a partner and

his resignation from the partnership had also been forged.

Consequentially, in the recovery suit filed by the Bank leading to

the grant of recovery certificate, his private property came to be

auctioned.

5. The Magistrate, under Section 156(3) Cr.P.C. directed the

police to register a criminal case, investigate and submit police

report in 90 days. The police after investigation submitted a report

dated 05.04.2006 under Section 173(2) that the accusations were

false. The Magistrate did not consider it necessary to proceed

under Section 173(8) and issued notice to the complainant as to

why the final report by the police be not accepted. The respondent

filed a protest petition which was registered as a complaint case.

4 The Magistrate, after hearing the respondent, and not being

satisfied, dismissed the complaint under Section 203 Cr.P.C. on

13.07.2006. It was therefore not a rejection of an application under

Section 156(3) Cr.P.C. as was sought to be urged on behalf of the

respondent. The Additional Sessions Judge, in a revision preferred

by the respondent against the dismissal of his complaint, set aside

the dismissal order on 08.10.2007, effectively restoring the

complaint case arising out of a protest petition and directed further

inquiry by the Magistrate. The High Court declined to interfere with

the order.

6. In B. Chandrika vs. Santhosh, (2014) 13 SCC 699, this

Court observed as follows:

“5. The power of the Magistrate to take cognizance of an offence on a complaint or a protest petition on the same or similar allegations even after accepting the final report, cannot be disputed. It is settled law that when a complaint is filed and sent to police under Section 156(3) for investigation and then a protest petition is filed, the Magistrate after accepting the final report of the police under Section 173 and discharging the accused persons has the power to deal with the protest petition. However, the protest petition has to satisfy the

5 ingredients of complaint before the Magistrate takes cognizance under Section 190(1)(a) CrPC.”

7. The restoration of the complaint by the Additional Sessions

Judge was undoubtedly to the prejudice of the appellant. The right

of the appellant to be heard at this stage need not detain us any

further in view of Manharibhai (supra) observing as follows:

“53.. . . We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section. 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to

6 participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.”

8. The impugned orders dated 6.03.2009 and 08.10.2007 are

held to be unsustainable in their present form. They are therefore

set aside. The matter is remanded to the Additional Sessions Judge,

Greater Mumbai to hear the revision application afresh after notice

to the appellant also and then pass a fresh reasoned and speaking

order to his satisfaction. The appeal is allowed.

…….………………………..J. (NAVIN SINHA)

……………………………….J. (INDIRA BANERJEE)

New Delhi, June 18, 2020

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