# MANHARIBHAI MULJIBHAI KAKADIA & ANR v. SHAILESHBHAI MOHANBHAI PATEL & ORS

- **Citation:** [2012] 8 S.C.R. 1015
- **Court:** Supreme Court of India
- **Decided:** 2012-10-01
- **Case number:** Criminal Appeal No. 1577 of 2012
- **Bench:** R.M. Lodha, Chandramauli Kr. Prasad, Sudhansu Jyoti Mukhopadhaya
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manharibhai-muljibhai-kakadia-anr-v-shaileshbhai-mohanbhai-patel-ors-28482
- **Pages:** 43

## Headnote

CODE OF CRIMINAL PROCEDURE, 1973:
B
c
ss. 397and 401(2) read with ss. 202 and 203- Revision
against order u/s 203 dismissing the complaint - Right of the
person accused I suspect to be heard -
Held: In the
proceedings uls. 202 the person accused/suspect is not
entitled to be heard on the question whether the process 0
should be issued against him or not - However, in a revision
petition preferred by complainant before High Court or
Sessions Judge challenging an order of the Magistrate
dismissing the complaint u/s. 203 at the stage u/s. 200 or after
following the process contemplated u/s. 202 of the Code, the
E
person accused/suspect" is entitled to hearing by the
revisional court - The stage is not important whether it is preprocess stage or post-process stage - If the revisional court
overturns the order of the Magistrate dismissing the complaint
and the complaint is restored to the file of the Magistrate for
fresh consideration, the persons who are alleged in the
F
complaint to have committed the crime have, however, no
right to 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
G
process.
ss. 200, 202 and 203 - Criminal complaint - Expression
'taking cognizance of an offence' -
Connotation of -
Explained - Held: In the context of ss. 200, 202 and 203, the
1015
H
1016
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A expression 'taking cognizance' embraces within itself all
powers and authority in exercise of jurisdiction and taking of
authoritative notice of the complaint or the first information
report or the information that offence has been committed, on
application of judicial mind - It does not necessarily mean
B issuance of process - In the instant case, from the order of
the Chief Judicial Magistrate directing an inquiry to be made
by police, it becomes apparent that he had applied judicial
mind on the complaint and had taken cognizance that day
although he postponed issue of process by directing an
C investigation to be made by Police Officer - Therefore, it
cannot be said that the CJM had not taken cognizance in the
matter and the complaint was dismissed uls. 203 at the precognizance stage.
D
Words and Phrases:
Expression 'prejudice', 'other person' and 'in his own
defence' occurring in s.401(2) CrPC - Connotation of.
A complaint was filed against the appellants for
offences punishable u/ss 420, 467, 468, 471 and 120-B
E IPC. The Chief Judicial Magistrate, on 18.6.2004, in
exercise of his powers u/s 202 CrPC, directed the inquiry
to made by the police. The Investigating Officer, after
investigating into the matter submitted 'C' Summary
Report stating that the dispute between the parties was
F of a civil nature and no offence was made out. The said
report was accepted. The complainant filed a revision
petition u/s 397 read with s. 401 CrPC before the High
Court. The appellants filed an application for being
impleaded as respondents in the revision so that they
G could be heard in the matter. The High Court rejected the
application.
Allowing the appeal, the Court
H
HELD: 1.1. Section 202 of the Code of Criminal
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1017
MOHANBHAI PATEL
Procedure, 1973 has twin objects: one, to enable the
A
Magistrate to scrutinize carefully the allegations made in
the complaint with a view to prevent a person named
therein as accused from being called upon to face an
unnecessary, frivolous or meritless complaint, and the
other, to find out whether there is some material to
B
support the allegations made in the complaint. The
Magistrate has a duty to elicit all facts having regard to
the interest of an absent accused person and also to
bring to book a person or persons against whom the
allegations have been made. To find out this, the c
Magistrate himself may hold an inquiry u/s 202 or direct
an investigation to be made by a police officer. In that
event, the Magistrate in

## Text

_Characters 0–39,689 of 81,747. This is a partial read: ask again with offset=39689 for what follows._

[2012] 8 S.C.R. 1015
MANHARIBHAI MULJIBHAI KAKADIA & ANR.
A
v.
SHAILESHBHAI MOHANBHAI PATEL & ORS.
(Criminal Appeal No. 1577 of 2012)
OCTOBER 1, 2012
[R.M. LODHA, CHANDRAMAULI KR. PRASAD AND
SUDHANSU JYOTI MUKHOPADHAYA, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
B
c
ss. 397and 401(2) read with ss. 202 and 203- Revision
against order u/s 203 dismissing the complaint - Right of the
person accused I suspect to be heard -
Held: In the
proceedings uls. 202 the person accused/suspect is not
entitled to be heard on the question whether the process 0
should be issued against him or not - However, in a revision
petition preferred by complainant before High Court or
Sessions Judge challenging an order of the Magistrate
dismissing the complaint u/s. 203 at the stage u/s. 200 or after
following the process contemplated u/s. 202 of the Code, the
E
person accused/suspect" is entitled to hearing by the
revisional court - The stage is not important whether it is preprocess stage or post-process stage - If the revisional court
overturns the order of the Magistrate dismissing the complaint
and the complaint is restored to the file of the Magistrate for
fresh consideration, the persons who are alleged in the
F
complaint to have committed the crime have, however, no
right to 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
G
process.
ss. 200, 202 and 203 - Criminal complaint - Expression
'taking cognizance of an offence' -
Connotation of -
Explained - Held: In the context of ss. 200, 202 and 203, the
1015
H
1016
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A expression 'taking cognizance' embraces within itself all
powers and authority in exercise of jurisdiction and taking of
authoritative notice of the complaint or the first information
report or the information that offence has been committed, on
application of judicial mind - It does not necessarily mean
B issuance of process - In the instant case, from the order of
the Chief Judicial Magistrate directing an inquiry to be made
by police, it becomes apparent that he had applied judicial
mind on the complaint and had taken cognizance that day
although he postponed issue of process by directing an
C investigation to be made by Police Officer - Therefore, it
cannot be said that the CJM had not taken cognizance in the
matter and the complaint was dismissed uls. 203 at the precognizance stage.
D
Words and Phrases:
Expression 'prejudice', 'other person' and 'in his own
defence' occurring in s.401(2) CrPC - Connotation of.
A complaint was filed against the appellants for
offences punishable u/ss 420, 467, 468, 471 and 120-B
E IPC. The Chief Judicial Magistrate, on 18.6.2004, in
exercise of his powers u/s 202 CrPC, directed the inquiry
to made by the police. The Investigating Officer, after
investigating into the matter submitted 'C' Summary
Report stating that the dispute between the parties was
F of a civil nature and no offence was made out. The said
report was accepted. The complainant filed a revision
petition u/s 397 read with s. 401 CrPC before the High
Court. The appellants filed an application for being
impleaded as respondents in the revision so that they
G could be heard in the matter. The High Court rejected the
application.
Allowing the appeal, the Court
H
HELD: 1.1. Section 202 of the Code of Criminal
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1017
MOHANBHAI PATEL
Procedure, 1973 has twin objects: one, to enable the
A
Magistrate to scrutinize carefully the allegations made in
the complaint with a view to prevent a person named
therein as accused from being called upon to face an
unnecessary, frivolous or meritless complaint, and the
other, to find out whether there is some material to
B
support the allegations made in the complaint. The
Magistrate has a duty to elicit all facts having regard to
the interest of an absent accused person and also to
bring to book a person or persons against whom the
allegations have been made. To find out this, the c
Magistrate himself may hold an inquiry u/s 202 or direct
an investigation to be made by a police officer. In that
event, the Magistrate in fact postpones the issue of
process. On conclusion of the inquiry by himself or on
receipt of report from the police officer or from such other 0
person who has been directed to investigate into the
allegations, if, in the opinion of Magistrate taking
cognizance of an offence there is no sufficient ground for
proceeding, the complaint is dismissed u/s. 203 or where
the Magistrate is of the opinion that there is sufficient E
ground for proceeding, then a process is issued. The
dismissal of the complaint u/s. 203 is without doubt a preissuance of process stage. [Para 23 and 27] [1034-C-F;
1038-G-H]
Vadila/ Panchal v. Dattatraya Du/aji Ghadigaonker and
F
another (1961) 1 SCR 1; Chandra Deo Singh v. Prakash
Chandra Bose and another 1964 (1) SCR 639; Smt.
Nagawwa v. Veeranna Shivalingappa Konjalgi and others
1976 Suppl. SCR 123 = (1976) 3 SCC 736; Ada/at Prasad
v. Roop/a/ Jindal and others (2004) 7 SCC 338; Mohd.
G
Yousuf v. Afaq Jahan (Smt.) and another (2006) 1 SCC 627
- relied on.
Pannanand Brahmachari v. Emperor AIR (1930) Patna
30; Radha Kishun Sao v. S.K. Misra and Anr. AIR (1949)
H
1018
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A Patna 36; Ramkisto Sahu v. The State of Bihar AIR (1952)
Patna 125; Emperor v. J.A. Finan AIR (1931) Born 524;
Baidya Nath Singh v. Muspratt and others ILR (1886) XIV Cal
141 - referred to
8
1.2. Pertinently, Chapter XV uses the expression,
"taking cognizance of an offence" at various places.
Although the expression is not defined in the Code, but
it has acquired definite meaning for the purposes of the
Code. The word, "cognizance" occurring in various
C Sections in the Code is a word of wide import. It embraces
within itself all powers and authority in exercise of
jurisdiction and taking of authoritative notice of the
allegations made in the complaint or a police report or any
information received that the offence has been
committed. In the context of ss. 200, 202 and 203, the
D expression 'taking cognizance' has been used in the
sense of taking notice of the complaint or the first
information report or the information that offence has
been committed, on application of judicial mind. It does
not necessarily mean issuance of process. Thus, from
E the order of the CJM passed on 18.6.2004, it becomes
apparent that he had applied judicial mind on the
complaint and had taken cognizance that day although
he postponed issue of process by directing an
investigation to be made by Police Officer. Therefore, it
F cannot be said that the CJM had not taken cognizance
in the matter and the complaint was dismissed u/s. 203
at the pre-cognizance stage. [Paras 28, 37-39] [1039-B;
1042-8-D; 1043-A]
G
R.R. Chari v. The State of Uttar Pradesh (1951) SCR
312; Narayandas Bhagwandas Madhavdas v. The State of
West Bengal 1960 SCR 93 = AIR (1959) SC 1118 ;
Da1shan Singh Ram Kishan v. State of Maharashtra 1972 (1)
SCR 571 = (1971) 2 SCC 654; Jamuna Singh and others
H v. Bhadai Sah (1964) 5 SCR 37; Kishun Singh and others v.
State of Bihar 1993 (1) SCR 31 = (1993) 2 SCC 16; State
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1019
MOHANBHAI PATEL
of Kamataka and another v. Pastor P. Raju 2006 (4) Suppl.
A
SCR 269 = (2006) 6 SCC 728; State of West Bengal and
another v. Mohd. Khalid and others 1994 (6) Suppl. SCR
16 = (1995) 1 sec 684 - relied on
2.1. The Code does not permit an accused person to
intervene in the course of inquiry by the Magistrate u/s.
202. The legal position is fairly well-settled that in the
proceedings u/s. 202 of the Code the accused/suspect is
B
not entitled to be heard on the question whether the
process should be issued against him or not. As a matter
of law, upto the stage of issuance of process, the
C
accused cannot claim any right of hearing. Section 202
contemplates postponement of issue of process where
the Magistrate is of an opinion that further inquiry into the
complaint either by himself is required and he proceeds
with the further inquiry or directs an investigation to be
D
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. [Paras 23 and 48]
[1032-F; 1051-C-D]
2.2. Parliament being alive to the legal position that
the accused/suspects are not entitled to be heard at any
stage of the proceedings until issuance of process u/s.
204, yet in s. 401(2) of the Code provided that no order
in exercise of the power of the revision shall be made by
the Sessions Judge or the High Court, as the case may
E
F
be, to the prejudice of the accused or the other person
unlesl! he had an opportunity of being heard either
personally or by pleader in his own defence. Three
expressions, "prejudice", "other person" and ·"in his own
defence" in s. 401(2) are significant for understanding
G
their true scope, ambit and width. "Prejudice" is generally
defined as meaning "to the harm, to the injury, to the
disadvantage of someone". It also means injury or loss.
The expression "other person" in the context of s.401 (2)
H
1020
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A means a person other than accused. It includes suspects
or the persons alleged in the complaint to have been
involved in an offence although they may not be termed
as accused at a stage before issuance of process. The
expression "in his own defence" comprehends, inter alia,
8 for the purposes of s.401 (2), in defence of the order which
is under challenge in revision before the Sessions Judge
or the High Court. [Paras 48, 51-53] [1051-E-H; 1052-E-G]
Black's Law Dictionary [Eighth Edition]; English
Dictionary {Tenth Edition, Revised]; Webster Comprehensive
C Dictionary [International Edition] and P. Ramanatha Aiyer; the
Law Lexicon [The Encyclopaedic Law Dictionary] - referred
to
2.3. The dismissal of complaint by the Magistrate u/
D s. 203 - although it is at preliminary stage - nevertheless
results in termination of proceedings in a complaint
against the persons who are alleged to have committed
crime. On a plain reading of sub-s. (2) of s.401, it cannot
be said that the person against whom the allegations of
E . having committed offence have been made in the
complaint and the complaint has been dismissed by the
Magistrate u/s 203, has no right to be heard because no
process has been issued. Once a challenge is laid to
such order at the instance of the complainant in a revision
petition before the High Court or Sessions Judge, by
F virtue of s. 401 (2), the suspects get right of hearing before
revisional court although such order was passed without
their participation. [Para 54] [1052-H; 1053-A-D]
2.4. The right given to "accused" or "the other
G person" uls. 401 (2) of being heard before the revisional
court to defend an order which operates in his favour
should not be confused with the proceedings before a
Magistrate u/ss. 200, 202, 203 and 204. In the revision
petition before the High Court or the Sessions Judge at
H the instance of complainant challenging the order of
MANHARIBHAI MULJIBHAI KAKADIAv. SHAILESHBHAI 1021
MOHANBHAI PATEL
dismissal of complaint, one of the things that could
A
happen is reversal of the order of the Magistrate and
revival of the complaint. It is in this view of the matter that
the accused or other person cannot be deprived of
hearing on the face of express provision contained in s.
401 (2) of the Code. The stage is not important whether it B
is pre-process stage or post-process stage. [Para 54]
[1054-E-G]
2.5. This Court, therefore, holds that in a revision
petition preferred by complainant before the High Court C
or the Sessions Judge challenging an order of the
Magistrate dismissing the complaint u/s. 203 of the Code
at the stage u/s. 200 or after following the process
contemplated u/s.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. Where D
complaint has been dismissed by the Magistrate u/s. 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
E
right to be heard in such revision petition. This is a plain
requirement of s. 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
F
persons who are alleged in the complaint to have
committed the crime have, however, no right to
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 G
of process. The judgments of the High Courts to the
contrary are overruled. [Para 58] [1057-A-F]
P. Sundarrajan and others v. R. Vidhya Sekar (2004) 13
SCC 472; Raghu Raj Singh Rousha v. Shivam Sundaram
H
Promoters Private Limited and another 2008 (17) SCR 833
1022
SUPREME COURT REPORTS
[2012) 8 S.C.R.
A = (2009) 2 SCC 363; A. N. Santhanam v. K. Elangovan 2011
(2) JCC 720 (SC) - upheld.
Gurdeep Singh v. State of Haryana ILR 2001 (2) P & H
388, Panatar Arvindbhai Ratilal v. State of Gujarat and others
8 1991 (1) Vol. 32 GLR 451, Ratanlal Soni v. Kai/ash Narayan
Aljariya1998 (2) MPLJ 321; Tata Motors Limited v. State
Criminal Revision Petition No. 16/2008 and Criminal LPA
4301/2008) decided by Delhi High Court on 12.2.2009;
Prakash Devi and others v. State of Delhi and another
C Criminal Miscellaneous Case No. 2626/2009 decided by
Delhi High Court on February 5, 2010 - overruled.
AS. Puri v. K.L. Ahuja AIR 1970 Delhi 214 - referred
to
0
2.6. Therefore, the impugned order dated 5.8.2005
cannot be sustained and, is set aside. The appellants'
application for impleadment in the criminal revision
petition stands allowed. The High Court shall hear the
matter and dispose of the criminal revision petition in ace
E ordance with law. [Para 59] [1057-G]
Case Law Reference:
(2004) 13 sec 472
upheld
Para 10
2008 (17) SCR 833 =
upheld
Para 10
F
2011 (2) JCC 720 (SC)
upheld
Para 10
(1964) 5 SCR 37
relied on
para 12
1993 (1) SCR 31
relied on
Para 12
G
2006 (4) Suppl. SCR 269
relied on
Para 12
1964 (1) SCR 639
relied on
Para 13
1976 Suppl. SCR 123
relied on
Para 13
H
(2004) 1 sec 338
relied on
Para 13
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1023
MOHANBHAI PATEL
(2006) 1 sec 627
relied on
Para 13
A
ILR 2001 (2) P & H 388
overruled
para 14
1991 (1) Vol. 32 GLR 451
overruled
para 14
1998 (2) MPLJ 321
overruled
para 14
B
Criminal Revision Petition
No. 16/2008 and Criminal
LPA 4301/2008) decided by
Delhi High Court on 12.2.2009 overruled
para 14
Criminal Miscellaneous
c
Case No. 2626/2009
decided by Delhi High Court
on 5.2.2010
overruled
para 14
AIR 1970 Delhi 214 - referred to
D
(1961) 1 SCR 1
relied on
Para 23
AIR (1930) Patna 30
referred to
Para 24
AIR (1949) Patna 36
referred to
Para 24
E
AIR (1952) Patna 125
referred to
Para 24
AIR (1931) Born 524
referred to
Para 24
ILR (1886) XIV Cal 141
referred to
Para 24
F
(1951) SCR 312
relied on
Para 29
1960 SCR 93
relied on
Para 30
1972 (1) SCR 571
relied on
Para 31
G
1994 (6) Suppl. SCR 16
relied on
Para 33
AIR 1970 Delhi 214
referred to
para 47
H
1024
SUPREME COURT REPORTS
120121 8 s.c:R.
A
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1577 of 2012.
From the Judgment & Order dated 5.8.2005 of the High
Court of Gujarat at Ahmedabad in Misc. Criminal Application
No. 8210 of 2005 in Criminal Revision Application No. 482 of
B 2005.
Shyam Divan, Shamik Sanjanwala, Bina Madhavan, Karan
Kanwal (for Lawyer's Knit & Co.) for the Appellants.
C
Hemantika Wahi, Jesal, Nandini Gupta, Meenakshi Arora
for the Respondents.
D
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Leave granted.
2. The sole question for consideration is, whether a
suspect is entitled to hearing by the revisional court in a revision
preferred by the complainant challenging an order of the
Magistrate dismissing the complaint under Section 203 of the
E Criminal Procedure Code, 1973 (for short 'Code').
3. It is not necessary to set out the facts in detail. Suffice
it to say that Shaileshbhai Mohanbhai Patel, respondent no. 1,
filed a criminal complaint on 15.5.2004 in the Court of Chief
Judicial Magistrate, Surat (for short 'CJM') against Manharibhai
F Muljibhai Kakadia and Paresh Lavjibhai Patel, appellants,
alleging that they had pre-planned a conspiracy; created forged
documents bearing signatures of the complainant, his father
and uncle, two sons of his uncle and his elder brother and have
used the said documents as true and genuine by producing the
G same before the District Registrar, Cooperative Society,
Nanpura, and by making false representation obtained
registration of lndoregency Cooperative Housing Society
Limited and by doing so the accused (appellants) have caused
financial loss and physical and mental agony to the complainant
H and his family members and have deceived the complainant
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1025
MOHANBHAI PATEL [R.M. LODHA, J.]
•
and his family members by obtaining huge financial advantage
A
by taking possession of the complainant's property. It was, thus,
alleged that the appellants have committed offences
punishable under Sections 420, 467, 468, 471 and 120-B, IPC.
4. The CJM in exercise of his power under Section 202
B
of the Code by his order dated 1 B.6.2004 directed the enquiry
to be made by the Police Inspector, Umra Police Station, into
the allegations made in the complaint and submit his report
within thirty days therefrom.
5. The Investigating Officer investigated into the matter and
C
submitted 'C' Summary Report. In the opinion of the
Investigating Officer, the disputes between the parties were of
civil nature and no offence was made out.
6. The CJM on 16.4.2005 accepted the 'C' Summary o
Report submitted by the Investigating Officer. That order has
been challenged _by the Complainant in a criminal revision
application filed under Section 397 read with Section 401 of
the Code in the Gujarat High Court.
7. The appellants having come to know of the above
E
criminal revision application made an application for joining
them as party respondents so that they can be heard in the
matter.
B. On 5.B.2005, the Single Judge of the Gujarat High Court
F
dismissed the application made by the appellants .. It is from this
order that present appeal has arisen.
9. We have heard Mr. Shyam Divan, learned senior
counsel for the app_ellants and Ms. Meenakshi Arora, learned
G
counsel for respondent no. 1.
10. Mr. Shyam Divan, learned senior counsel for the
appellants argued that the plain language of Section 401 (2) of
the Code entitles the appellants to be heard in the criminal
revision application filed by the respondent no. 1 challenging
H
1026
SUPREME COURT REPORTS
[2012) 8 S.C.R .
•
A the order of the CJM. According to learned senior counsel,
appellants have a right to be heard in the revision application
filed by the complainant as no order could be made to the
prejudice of the accused or the other person unless he has had
an opportunity of being heard under Section 401 (2) of the
s Code. It was argued on behalf of the appellants that the result
of acceptance of the 'C' Summary Report is that criminal
proceedings launched by the complainant have come to an end
and if the revision application preferred by the complainant is
accepted, that would have the effect of revival of the complaint
c and setting the criminal process back in motion which would
be definitely prejudicial to the appellants and before any such
prejudicial order is passed, the appellants ought to be heard.
In support of the above contentions, learned senior counsel
relied upon decisions of this Court in P. Sundarrajan and
others v. R. Vidhya Sekar', Raghu Raj Singh Rousha v.
D Shivam Sundaram Promoters Private Limited and anothei'-
and A. N. Santhanam v. K. Elangovan3•
11. Mr. Shyam Divan, learned senior counsel would also
argue that expression, "in his own defence" in Section 401 (2)
E is a comprehensive expression which also means 'in defence
of the order' under challenge in revisional jurisdiction. Learned
senior counsel submitted that "prejudice" may cover wide range
of situations and must be considered in wider sense. Section
401 does not make any distinction between pre-process stage
F and post-process stage. Sub-section (2) of Section 401 is
applicable regardless and whether or not process has been
issued under Section 204 of the Code.
12. It was also submitted on behalf of the appellants that
G cognizance had been taken by the CJM. Cognizance is not
equivalent to issuance of process; it is taken prior to issuance
of process. Cognizance is taken at the initial stage when the
1.
(2004) 13 sec 472.
2.
(2009) 2 sec 363.
H 3.
2011 (2) JCC 720 (SC)
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1027
MOHANBHAI PATEL [R.M. LODHA, J.]
Magistrate applies his judicial mind to the facts mentioned in
A
the complaint or to the police report or upon information
received from any other person that an offence has been
committed. In this regard, reliance was placed on Jamuna
Singh and others v. Bhadai Sah4, Kishun Singh and others
v. State of Bihar° and State of Kamataka and another v. Pastor B
P. Raju6.
13. Ms. Meenakshi Arora, learned counsel for the
respondent no. 1, on the other hand, stoutly defended the order
of the High Court. She would argue that since CJM had not C
taken cognizance of the offence, the appellants have no role
to play at any stage prior to issuance of process. She referred
to certain provisions, including Chapters XIV, XV and XVI, and
also Sections 156, 173, 190 and 202 of the Code. Learned
counsel for the respondent no. 1 argued that since the subject
revision petition had been filed by the respondent no. 1 against
D
the dismissal of the complaint at a pre-cognizance stage, the
appellants do not have any right of hearing under the provisions
of Section 401 (2) of the Code. In this regard, the learned
counsel placed reliance on Chandra Deo Singh v. Prakash
Chandra Bose and anothefl, Smt. Nagawwa v. Veeranna
E
Shivalingappa Konjalgi and others8, Ada/at Prasad v. Roop/al
Jindal and others9 and Mohd. Yousuf v. Afaq Jahan (Smt.)
and another10•
14. Learned counsel for the respondent no.1 also relied
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upon decisions of Punjab and Haryana High Court, Madhya
Pradesh High Court and Gujarat High Court in support of her
submission that accused has no right of hearing under Section
4.
(1964) 5 SCR 37.
s.
(1993) 2 sec 16.
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6.
(2006) 6 sec na.
7.
1964 (1) SCR 639.
8.
(1976) 3 sec 736.
s.
(2004) 1 sec 338.
10. (2006) 1 sec 627.
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A 401 (2) in a revision against an order by which a complaint has
been dismissed by the Magistrate under Section 203 of the
Code. She relied upon Gurdeep Singh v. State of Haryana",
Panatar ANindbhai Rafi/a/ v. State of Gujarat and others12,
Ratanlal Soni v. Kai/ash Narayan Arjariya13. She also relied
B upon a decision of Delhi High Court in Tata Motors Limited v.
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State (Criminal Revision Petition No. 16/2008 and Criminal
LPA 4301/2008) decided on 12.2.2009 wherein decision of
this Court in Raghu Raj Singh Rousha 2 has been
distinguished.
15. Learned counsel for the respondent no. 1 would submit
that decision of this Court in P. Sundarrajan' was not
applicable to the fact situation of the present case inasmuch
as in that case, the accused were party in the revision petition
whereas in the subject revision the appellants have not been
D allowed to be impleaded as party respondents and the
impugned order has been passed on the application for
impleadment. While referring to A.N. Santhanam3 , learned
counsel for the respondent no. 1 submitted that this case too
was not applicable to the facts of the present case as in that
E case the complainants were examined under Section 200 of
the Code whereas in the present case the CJM has accepted
the 'C' Summary Report under Section 173 after the
investigation was done by the police.
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16. In order to appreciate the rival submissions, some of
the provisions of the Code need to be referred to. Section 156
deals with Police Officer's power to investigate cognizable
case. It reads as follows:
"S. 156. Police Officer's power to investigate cognizable
case. - (1) Any officer in charge of a police station may,
without the order of a Magistrate, investigate any
11. ILR 2001 (2) P & H 388.
12. 1991 (1) Vol. 32 GLR 451.
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13. 1998 (2) MPLJ 321.
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1029
MOHANBHAI PATEL [R.M. LODHA, J.]
cognizable case which a Court having jurisdiction over the
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local area within the limits of such station would have
power to inquire into or try under the provisions of Chapter
XIII.
(2) No proceeding of a police officer in any such case shall
8
at any stage be called in question on the ground that the
case was one which such officer was not empowered
under this section to investigate.
(3) Any Magistrate empowered under Section 190 may
order such an investigation as.above mentioned."
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17. Section 190 falls in Chapter XIV and reads as under:
"S. 190. Cognizance of offences by Magistrates. - (1)
Subject to the provisions of this Chapter, any Magistrate
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of the first class, and any Magistrate of the second class
specially empowered in this behalf under sub- section (2),
may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute
such offence;
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(b) upon a police report of such facts;
(c) upon information received from any person other than
a police officer, or upon his own knowledge, that such
offence has been committed.
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(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under
sub-section (1) of such offences as are within his
competence to inquire into or try."
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18. Chapter XV of the Code deals with the complaints to
Magistrates. It has four Sections, 200 to 203, which read as
under:
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"S. - 200. Examination of Complainant.- A Magistrate
taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination
shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses-
(a) If a public servant acting or purporting to act in the
discharge of his official duties or a court has made the
complaint; or
(b) If the Magistrate makes over the case for inquiry, or trial
to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case
to another Magistrate under section 192 after examining
the complainant and the witnesses, the latter Magistrate
need not re-examine them.
S. 201. Procedure by Magistrate not competent to take
cognizance of the case.- If the complaint is made to a
Magistrate who is not competent to take cognizance of the
offence, he shall, -
(a) If the complaint is in writing, return it for presentation
to the proper court with an endorsement to that effect;
(b) If the complaint is not in writing, direct the complainant
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to the proper court.
S. 202. Postponement of issue of process.- (1) Any
Magistrate, on receipt of a complaint of an offence of
which he is authorised to take cognizance or which has
H
been made over to him under Section 192, may, if he
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1031
MOHANBHAI PATEL [R.M. LODHA, J.]
thinks fit, and shall, in a case where the accused is
A
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 s
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
C
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)
0
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
E
complained of is triable exclusively by the Court of Session,
he shall call upon the complainant to produce all his
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.
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S. 203. Dismissal of complaint-If, after considering the
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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
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dismiss the complaint, and in every such case he shall
briefly record his reasons for so doing."
19. Chapter XVI of the Code has Sections 204 to 210.
Section 204 deals with the issuance of process by the
8 Magistrate. The process is issued by the Magistrate if in his
opinion there is sufficient ground for proceeding.
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20. Section 210 provides for procedure to be followed
when there is complaint case and police investigation in respect
of the same offence. It reads as under:
"S. 210. Procedure to be followed when there is a
complaint case and police investigation in respect of the
same offence.-(1) When in a case instituted otherwise
than on a police report (hereinafter referred to as a
complaint case), ii is made to appear to the Magistrate,
during the course of the inquiry or trial held by him, that an
investigation by the police is in progress in relation to the
offence which is the subject-matter of the inquiry or trial held
by him, the Magistrate shall stay the proceedings of such
inquiry or trial and call for a report on the matter from the
police officer conducting the investigation.
(2) If a report is made by the investigating police officer
under Section 173 and on such report cognizance of any
offence is taken by the Magistrate against any person who
is an accused in the complaint case, the Magistrate shall
inquire into or try together the complaint case and the case
arising out of the police report as if both the cases were
instituted on a police report.
(3) If the police report does not relate to any accused in
the complaint case or if the Magistrate does not take
cognizance of any offence on the police report, he shall
proceed with the inquiry or trial, which was stayed by him,
in accordance with the provisions of this Code."
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1033
MOHANBHAI PATEL [R.M. LODHA, J.]
21. Section 397 of the Code empowers the High Court or
A
the Sessions Judge to call for and examine the record of any
proceeding before any inferior court situate within its or his local
jurisdiction for the purpose of satisfying itself or himself as to
the correctness, legality or propriety, inter alia, of any order
passed by such inferior court. The powers of revision are
B
concurrent with the High Court and the Sessions Judge. By
virtue of Section 399, the Sessions Judge may exercise all or
any of the powers which may be exercised by the High Court
under sub-section (1) of Section 401 and while doing so the
provisions of sub-sections (2),(3),(4) and (5) of Section 401 c
apply to such power as far as possible. Section 401 deals with
High Court's power of revision and it reads as follows :
"S. 401. High Court's powers of revision.-(1) In the case
of any proceeding the record of which has been called for
by itself or which otherwise comes to its knowledge, the
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High Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by sections 386,
389, 390 and 391 or on a Court of Session by section 307
and, when the Judges composing the Court of revision are
equally divided in opinion, the case shall be disposed of
E
in the manner provided by section 392.
(2) No order unde• 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
pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one of
conviction.
(4) Where under this Code an appeal lies and no appeal
is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.
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(5) Where under this Code an appeal lies but an
application for revision has been made to the High Court
by any person and the High Court is satisfied that such
application was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the interests
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of justice so to do, the High Court may treat the application
for revision as a petition of appeal and deal with the same
accordingly."
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22. In light of the above provisions, the question for
consideration before us is to be examined.
23. Section 202 of the Code has twin objects; one, to
enable the Magistrate to scrutinize carefully the allegations
made in the complaint with a view to prevent a person named
therein as accused from being called upon to face an
D unnecessary, frivolous or meritless complaint and the other, to
find out whether there is some material to support the
allegations made in the complaint. The Magistrate has a duty
to elicit all facts having regard to the interest of an absent
accused person and also to bring to book a person or persons
E against whom the allegations have been made. To find out the
above, the Magistrate himself may hold an inquiry under Section
202 of the Code or direct an investigation to be made by a
police officer. The dismissal of the complaint under Section 203
is without doubt a pre-issuance of process stage. The Code
F does not permit an accused person to intervene in the course
of inquiry by the Magistrate under Section 202. The legal
position is no more res integra in this regard. More than five
decades back, this Court in Vadilal Panchal v. Dattatraya
Dulaji Ghadigaonker and another• with reference to Section
G 202 of the Criminal Procedure Code, 1898 (corresponding to
Section 202 of the present Code) held that the inquiry under
Section 202 was for the purpose of ascertaining the truth or
falsehood of the complaint, i.e., for ascertaining whether there
was evidence in support of the complaint so as to justify the
H 14. (1961) 1 SCR 1.
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1035
MOHANBHAI PATEL [R.M. LODHA, J.]
issuance of process and commencement of proceedings
A
against the person concerned.
24. In Chandra Deo Singh7 , a four-Judge Bench of this
Court had an occasion to consider Section 202 of the old
Code. The Court referred to the earlier decision of this Court
in Vadi/al Pancha/1 4 and few previous decisions, namely,
Parmanand Brahmachari v. Emperor15, Radha Kishun Sao
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v. S.K. Misra and Anr. 16, Ramkisto Sahu v. The State of
Bihar11, Emperor v. J.A. Finan 18, Baidya Nath Singh v.
Muspratt and others19 and it was held that the object of
provisions of Section 202 (corresponding to present Section
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202 of the Code) was to enable the Magistrate to form an
opinion as to whether process should be issued or not and to
remove from his mind any hesitation that he may have felt upon
the mere perusal of the complaint and the consideration of the
complainant's evidence on oath. It was further held that an
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accused person does not come into the picture at all till process
is issued.
·
25. In Smt. Nagawwa8, this Court had an occasion to
consider the scope of the inquiry by the Magistrate under
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Section 202 of the old Code. This Court referred to the earlier
two decisions in Vadilal Pancha/14 and Chandra Deo Singh7
and in para 4 of the Report held as under:
"4. It would thus be clear from the two decisions of this
Court that the scope of the inquiry under Section 202 of
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the Code of Criminal Procedure is extremely limited -
limited only to the ascertainment of the truth or. falsehood
of the allegations made in the complaint- (1) on the
materials placed by the complainant before the court; (ii)
for the limited purpqse of finding out whether a prima facie
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15. AIR (1930) Patna 30.
16. AIR (1949) Patna 36.
17. AIR (1952) Patna 125.
18. AIR (1931) Born 524.
19. ILR (1886) XIV Cal 141.
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case for issue of process has been made out; and (iii) for
deciding the question purely from the point of view of the
complainant without at all adverting to any defence that the
accused may have. In fact it is well settled that in
proceedings under Section 202 the accused has got
B
absolutely no locus standi and is not entitled to be heard
on the question whether the process should be issued
against him or not."
26. In Ada/at Prasad", a three-Judge Bench of this Court
had an occasion to consider Sections 200, 202 and 204 of the
C Code. The scheme of the above provisions was explained in
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the following manner:
"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 have 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 have
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
MANHARIBHAI MULJIBHAI KAKADIA v. SHAILESHBHAI 1037
MOHANBHAI PATEL [R.M. LODHA, J ]
of witnesses on oath, and after such investigation, inquiry
A
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.
B
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.