Parkash Devi & Ors v. State of Delhi & Anr

8. Before proceeding further it would be pertinent to reproduce sections 202-204 of the Code of Criminal Procedure as under:- “Section 202 - Postponement of issue of process (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to hi m under section 192, may, if he thinks fit[1] [and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction], postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all hi s witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. Section 203 - Dismissal of complaint If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. Section 204 - Issue of process (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be— (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87.”

9. As would be evident from the above provisions, the journey of a private complaint begins from Section 200 of the Code of Criminal Procedure when the Magistrate taking cognizance of an offence, examines on oath the complainant and the witnesses present, if any, and if on such material the Magistrate comes to the conclusion that a sufficient case has been made out for summoning the accused, then the Magistrate may proceed to issue process under Section 204 Cr.P.C. However, if the Magistrate at that very stage finds that no prima facie case has been made out by the complainant and there is no sufficient ground for proceeding against the accused, then he may straightaway dismiss the complaint under Section 203 Cr. P.C. The Magistrate in the given facts of the case after examining the complainant and the witnesses, may also proceed under Section 202 Cr.P.C. to further inquire into the case either himself or direct an investigation to be conducted by a police officer or by such other person as he thinks fit so as to decide whether or not there is sufficient ground to proceed in the matter. Even after holding an enquiry under Section 202, the option before the Magistrate would again be either to proceed under Section 203 or under Section 204 of the Code of Criminal Procedure. If after considering the entire material on record the Magistrate finds that there is sufficient ground to proceed with the complaint he can issue process by way of summoning the accused under Section 204 of Cr.P.C. and if the Magistrate taking a prima facie view of the matter does not find that any sufficient material exists to proceed against the accused then he can dismiss the complaint under Section 203 of Cr.P.C.

10. In Adalat Parsad’s case (Supra) the Apex Court clearly held that at no other stage before issuing of process under Section 204 Cr.P.C., the Code has provided for hearing the summoned accused. It would be worthwhile to refer to the following paras of the said judgment:- “11. We will examine the above findings of this Court in the background of the scheme of the Code which provides for consideration of complaints by Magistrates and commencement of proceedings before the Magistrate which is found in Chapters XV and XVI of the Code;

12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses has not made out sufficient ground for proceeding. Per contra if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage has materials to proceed, he can proceed to issue process under Section 204 of the Code

13. Section 202 contemplates: postponement of issue of process: It provides that if the Magistrate on receipt of a complaint if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the Police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code.

14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew's case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage”.

11. In another recent judgment of this Court in Tata Motors Ltd. Vs. State (Supra) Hon’ble Dr. Justice S. Muralidhar discussed the issue in detail after considering the ratio of a number of judgments such as Chandra Deo Singh vs Prokash Chandra Bose @ Chabi Bose (1964) AIR 1963 SC 1430; A.K. Subbaiah vs State of Karnataka 1987 (4) SCC 557; Prabha Mathur vs Pramod Aggarwal (2008) 9 SCC 469; Raghu Raj Singh Rousha vs Shivam Sundaram Promoters (P) Ltd. 2008 (16) Scale 369 and crystallized the legal position in the following para:-

12. The mandate of the law is that no order under Section 401(2) shall be passed by the revisional Court 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 hearing envisaged in the Section is to the “accused” or to the “other person” and, therefore, the pertinent question which arises is; “whether a person who has not yet been made an accused be entitled to an opportunity of being heard in the matter”?

13. In Chandra Deo Singh (supra) the Apex Court clearly held that the accused person does not at all come in the picture till the process is issued against him. The only right of the accused till the process is issued against him is to remain present either in person or through his counsel just with a view to remain informed as to what is going on in the complaint case where he has been made an accused. The rationale here was that “since the very question for consideration being whether he should be called upon to answer a question which he has no right to take part in the proceedings nor the Magistrate has any jurisdiction to permit him to do so”. It would be useful to refer to the following para from the said judgment:-

Also in the case of Chitra Narain vs NDTV 109(2004) DLT 394 in answer to the question whether the person against whom the complaint is filed has a right to participate in a revision petition, the answer was given in the negative. It was held that "unless a person becomes an accused after process is issued against him, his presence is like any member of the public." It was explained that "a person against whom a complaint is filed does not become an accused until Court decides to issue process against him." Yet again, in the case of Tata Motors vs. State (supra) it was held by this court that:

15. In the backdrop of the aforesaid legal position and applying it to the facts of the case at hand, it would be evident that the Magistrate had dismissed the complaint filed by the complainant under Section 203 of the Code of Criminal Procedure as the learned Magistrate after taking into consideration the status report filed by the police and the other material on record came to the conclusion that the Civil Court, where already the complainant had filed his suit, would afford him the appropriate remedy to prove his right, possession and title of the property. Since the Magistrate did not examine the complainant and the other witnesses as per the mandate of Section 200 of Cr.P.C. therefore, in the revision filed by the respondent the matter was remanded back by the revisional Court with the direction to the Magistrate to grant another opportunity to the respondent to lead presummoning evidence and to proceed in the matter in accordance with law.

16. The grievance of the petitioner is that before the revisional Court, neither the petitioner was impleaded by the respondent complainant nor the revisional Court afforded any hearing to the petitioner, and hence prejudice has been caused to his rights and he claims his right of being heard under Section 401(2) of the Code of Criminal Procedure. As already discussed above, the character of the petitioner was still not that of an accused as the complaint filed by the respondent was dismissed under Section 203 Cr.P.C. and since the matter was remanded back to the Magistrate to grant opportunity to the complainant to lead pre-summoning evidence, therefore, the said order does not cause any prejudice to the rights of the petitioner. Even after the said remand, the fate of the complaint case could either be dismissal under Section 203 or under 204 Cr.P.C., if the Court with the fresh material before it, comes to the conclusion to proceed against the respondent. Since in the present case the process was not yet issued against the petitioner and the complaint was dismissed under S. 203 of Cr.P.C., therefore, preceding the said stage, the petitioner had no right to seek opportunity of hearing before the Revisional Court in the light of the legal position discussed above.

17. As with regard to the contention of the petitioner that the rules of natural justice have been violated as no opportunity of being heard has been given to the petitioner, it would be pertinent to refer to the judgment of the Madras High Court in S. Thiyagrajan Vs. Ayyamperumal & Anr. (1983) 2 Crimes 765 Mad where this issue has been authoritatively addressed:- “14. As regards the contention that natural justice requires that the petitioner should have been given notice by the learned Sessions Judge before disposing of the Criminal revision petition, I am aware that even if there is no specific provision for notice in the statute, provision must be read into the law in certain circumstances. The concept of natural justice has got its own natural limitations. It cannot be too vague and stretched to an extent of breaking of systems of recognized law. No person has a vested right in any course of procedure. It is for the legislature at any time to change the mode of procedure. In construing a statute the court is not at liberty to stretch to square with the theory or that theory. The Court has no power to go behind the intention of the legislature on the pretext of natural justice. Courts are to interpret the laws and not make them and must firmly refuse to fill in a lacuna even though the refusal may work hardship in an individual case.

15. Coming to the case on hand, it is relevant to note the 41st Report of the Law Commission on the subject:

16. The above passage makes it abundantly clear that the guideline for the statute is that in a revision against the order of dismissal of a complaint under Section 203, Criminal Procedure Code, no notice need be given to the accused. No restraints and conditions which the legislature itself did not think proper or necessary to impose can be brought in by the backdoor on the concept of natural justice.” Therefore, the case of the petitioners cannot be said to be justified as the concept of principles of natural justice cannot be introduced where the mandate of law is otherwise.

18. Hence in the light of the above discussion, I do not find any merit in the present petition and the same is hereby dismissed. February 05, 2010 KAILASH GAMBHIR,J