IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 1ST DAY OF SEPTEMBER 2009 BEFORE THE HON'BLE MR.JUSTICE SUBHASH B.ADI CRIMINAL PETITION NO.5218/2008, BETWEEN: 1 Sri.Raghunatha Rao S/o S.Nagesh Rao, Aged 52 years, LLC. Agent, R/o.Tyagarajanagara, Challakere Town, Chitradurags. Dist. Sri. Vasudeva Rao S/o.Krishna Rao, Aged 80 years, Hotel Owner, New Krishna Bhavan, R/o. Tyagarajanagara, Chaliakere Town, Chitradurga Dist. Sri.Raghavendra Rao S/o.Krishnamurthy, Aged 46 yers, BUP Worker, R/o.Tyagarajanagara, Chaitaiere ‘Town, Chitraduraga Dist. Sri Mehesh S/o.Veerabhadrappa, ‘Aged 35 years, Agriculturist, R/o.Tyagarajanagara, Challakere Town, Chitradurga Dist.10 Sri.Gundurao Aged 70 years, Retd. Shirastedara, R/o. Tyagarajanagara, Challakere Town, Chitradurga Dist Sri.S.M.Gangadhara $/o.Doddachannayya, Aged 46 years, L.1.C. Agent, R/o. Tyagarajanagara, Challakere Town, Chitradurga Dist. Sri. Muralidhara Rao, S/o. Gangadharay Aged 65 years, Dhanalakshmi Hotel Owner, R/o. Tyagarajanagara Challakere T Di Sri. Premakumar, S/o. Late Narasimhamurthy, Aged 48 years, R/o. Tyagarajanagara, Challakere Town, Chitradurga Dist. Venkatachala, shpa Bakery Owner, Aged 5G years, R/o. Tyagarajanagara, Challakere Town, Chitradurga Dist. Sri.Subbanna S8/o.Radhakrishnappa, Aged 38 years, Businessman, R/o. Tyagarajanagara, Challakere Town, Chitradurga Dist.11 Sri.Thippurao S/o.Krishna Rao, Dy. Tahasildar, Parashuramapura, Challakere Tq, 12 Sri, Bhanumurthy S/o. Subbarao, Aged 50 years, Village Accountant, R/o. ‘Tyagarajanagara, Challakere Town, Chitradurga Dist. ».. PETITIONERS (By Sri.K.Sreedhar Associates, Advs.! AND: Sri. RRamappa, S/o.Lakshmayya, Aged 70 years, ‘Tyagarajanagaza, Challakere Town, Challakere Chitradurga Dist. RESPONDENT (By Sri.B.M.Siddappa, Adv ) This Criminal Petition is filed under Section 482 Cr.P.C. praying to set aside the order dt.20.12.07 in CRL.RP. No.15/07 passed by I/C Addl. S.i Chitradurga. ‘This Petition coming on for admission this day, the Court maile the follewing ORDER Petitioners have called in question the order dated 20% Deceniber 2007 passed in Crl.R.P.No.15/2007 on the file of In- charge Additional Sessions Judge, Fast Track Court, Chitradurga.2. Respondent is the complainant. He had filed a private complaint under Section 200 of Cr.P.C. for an offence punishable under Sections 323, 141, 142, 447, 504, 506 read with Section 149 of IPC. 3. The learned Magistrate considering the avermients made in the complaint and also the sworn statement of the witnesses examined by the complainant and the docuiments, found that, the allegations made against the petitioners herein do not constitute a criminal offence and observed. that the entire case of the complainant is civil in nature and by his oraer dated 22.1.2007 had dismissed the evrpiaint. By mvoking the provisions of Section 203 of Cr.P.C., the respondent being aggrieved by the said order preierred Cr.R.P.No.15/2007 before the Sessions Judge, Chitradurga. ‘The learned Sessions Judge by his order dated 20% December 2907 alowed the revision petition and remitted the matter te the trial court to consider the allegation made in the complaint and the material placed on record to decide, whether prima facie case is made out for an offence alleged for the purpose cf issuing of process against the petitioners. It is against this ee. order, ihe petitioners have filed this petition.4. The petitioners allege that, they are shown as accused in the private complaint and the learned Magistrate on consideration of the entire material has passed an order observing thal, there is no prima facie case made out against the petitioners to proceed against them for an alleged offence mentioned in ihe complaint. Having an order passed in favour of ihe accused without impleading the petitioners as parties to the revision, only impleading the State had filed a revision: petition. The Revisional Court has passed an order allowing the revision petition and setting aside the order, which was im favour of the petitioners. Learned Counsel for the petitioners has relied on the provisions of Section 401 of Cr.P.C. und submitted that, before an order is passed by the revisional court, the revisional court should hear the accused or any other person, who would be prejudiced by the order. in the ight of Section 401 of Cr.P.C., he relied on a Judgment of the Apex Court reported in (2009) 2 SCC 363 in the miatter of RAGHU RAJ SINGH ROUSHA -vs- SHIVAM SUNDARAM PROMOTERS PRIVATE LIMITED AND ANOTHER. In the aforesaid case, the Apex Court considering the fact that, after taking cognizance, the learned Magistrate refused to refer the matter for investigation by jurisdictional Police under Section 156(3) of CrP.C. and against the refusal, the complainant had filed a a tecriminal revision petition, the Revisional Court based on the consent given by the State, set aside the order and remitted the matter to the learned Magistrate and directed the complainant to appear before the learned Magistrate on 24.3.2608. The said order was called in question before the Apex Court interalia alleging that. once an order is passed in favour of the accused in terms of Section 401 sub-section 2) of Cr.P.C., nc urder under Section 401(2) shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard cither personally or by pleader in his own defence. Referring to the word “other person”, tie Apex Court observed that, the other persons including the persons likely to be prejudiced by the order and held that the order, which was in favour of the accused. has been set at naught by the revisional court without hearing him. Under these circumstances, the Apex Court held that, hearing of accused is necessary. 5. Learned Counsel appearing for the respondent - complainant submitted that, the procedure prescribed in Chapter-XV of the Code of Criminal Procedure confers power on the Magistrate to entertain a private complaint that would be filed under Section 200 of Cr.P.C. and after taking cognizance and after recording the sworn statement of the complainant and thestatement of the witnesses, if any, the learned Magistrate either he may postpone the issue of process and may refer the complaint for further investigation by the jurisdictional Police or if he finds that there is no prima facie case to proceed against the accused, he may reject the complaint by invoking the provisions of Section 203 of Cr.P.C. and submitted thai. the proced:ire contemplated in Chapter XV of Cr.P.C. is purely between the learned Magistrate and the complainant. It is only after the Magistrate satisfies himself that, there is sufficient ground to proceed in the case, he may invoke tie provisions of Section 204 sub-section (2) of Cr.P.C. and issue summons and till then, the accused has no role to play either opposing the taking cognizance or opposing the reference to the Police, It is purely between the learned Magistrate and the complainant. He also submitted that, since the compiaint is dismissed even before the summons is i ed, the revisional court has rightly not issued summons to the accused. 6. Section 190 of Cr.P.C. confers power on the Magistrate to teke cognizance of the offence. On the basis of the statement of facts, which constitutes an offence, once the cognizance is taken in case of a private complaint, learned Magistrate shall examine on oath the complainant and the witnesses present. If the Sal,Magistrate finds that, the issue of process required to be postponed to enable the Magistrate to take the matter investigated, he can invoke the provisions of Section 29% of Cr.P.C. and refer the matter to the Police for further investigation. However, either based on the report of the Police or on the basis of the averment in the complaint and the sworn statement and the statement of the witnesses, if any and the mater! i produced by the complainant, if the Magistrate satisfies imself that there is no prima facie case or suiicient grounds to proceed in the matter, he can dismiss the complaini, Chapter-XV is. self- contained chapter. ‘The proczedings will commence only from Chapter XVI of Cr.P.C., viz., if in the opinion of the Magistrate after takirg cognizance of the offence, there is sufficient ground for proceedmg in the matter, he may issue summons for attendance of the accused. “Till then, there is no provision by which the accused could be summoned nor the case will commence, No doubt, in Chapter XV, there is no requirement of hearing of the accused at any stage 7, The Apex Court while interpreting the provisions of Section 401 of Cr.P.C., which confers revisional power on the High Court has observed that, although an accused has no right to participate unless the process is issued, he may remain roa! apresent either in person or through a Counsel or agent with a view to be informed of what is going on. The object behind the provisions of Section 202 is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view ‘0 prevent a person named therein as an accused from being calied upon to face an obviously frivolous complaint, but that is net the stage where defence of an accused can be gone into. it is in the light of this observation, the Apex Cou:t inas held that, though the accused has no power to produce defence evidence to contest the complaint at the threshold, however, accused can appear in person or through a counsel oaly to be mformed of what is going on and to prevent frivolous cemplaint being prosecuted against them, It is also observed tizat, whether a process has to be issued or not, jurisdiction lies withiz the exclusive domain of the Magistrate so as to enable him to arrive at a satisfaction that there is sufficient ground for proceeding. Considering the nature and scope of Section 401 sub-section (2) of Cr.P.C. and also considering that the word “other person” referred to therein, the Apex Court held that, though not the accused is required to be present, but he can appear to get the information. It is in this background, the Apex Court held that the accused are required to ot aT '-10- be heard before revision is allowed, and not hearing the accused has prejudicially affected his interest 8, In view of the interpretation given by the Apex Court i the provisions of Section 401 of Cr.P.C., though tne revisicn in this case has been filed under Section 397 Cr.P.C., I find that the order, which was in favour of the petitioners, has been set ai naught without hearing them, an opportunity is required to be given. Accordingly, this petition is allowed. The order dated 20% December 2007 passed in Cri.R.P.No.15/2007 on the file of In- charge Additional Sessions Judge, Fast Track Court, Chitradurga is set aside and the matter is rensitted to the Revisional Court with a direction to hear tie petitioners and pass appropriate order. Sd/3 Judge KNM/-