Blog

Asper sub-section 2 to Section 401 CrPC no order shall be passed to the prejudice of the accused or ‘other person’ unless he has a liberty of being heard either personally or through pleader. The words ‘other person’ refers to person akin to the accused and it does not include the complainant. This was held by the Hon’ble Justice Yogesh Khanna in the case of Vipul Gupta and S.P. Gupta Vs. State and Anr. [CRL.M.C. 1163/2021 & CRL.M.A.5948/2021; and CRL.M.C. 1186/2021, CRL.M.A.6061 and 6251 of 2021] on the 06^thof August before the Hon’ble High Court of Delhi at New Delhi.

The brief facts of the case are, the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2, whereas the complainant has no role to play before learned Revisional Court and it’s only the learned Public Prosecutor for the State, who has to take realm of the case before learned Session’s Court. It is argued per sub-section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has a liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2. These petitions are filed to assail an impugned order dated 05.04.2021 by the learned Principal District and Sessions Judge (HQs), Delhi (hereinafter referred to as the Revisional Court), against the orders dated 01.02.2021, 22.02.2021 and 06.03.2021 passed by the learned Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi in case State vs S.P.Gupta & Others.

The counsel for the petitioner submits Section 401(2) Cr P C does not give any right to the complainant to be heard in revision before the learned Session’s Court and hence the impugned order suffers from illegality. The counsel referred to the decision in Mahabunnisa Begum vs. State of Telangana and Ors. MANU/AP/1128/2017, wherein, the crux of the decision “(i) the word other person under Section 401(2) Cr P C is either an accused or a person similarly placed to the accused; (ii) in a Session’s trial, the complainant can only assist the learned Public Prosecutor at the stage of enquiry, trial or appeal and may submit written arguments only after the evidence is closed; (iii) the complainant cannot be given an opportunity of being heard in an anticipatory bail application; (iv) in a case filed on a police report, the public person has no locus standi after the cognizance is taken; (v) in a Magistrate triable case, permission may be granted to the person concerned to appoint any counsel to conduct the prosecution on his behalf; (vi) the prosecution in Session’s case cannot be conducted by any person other than the learned Public Prosecutor; and (vii) the reason need be given if an order Section 401(2) Cr PC is passed to the prejudice of the accused.” The arguments of the respondent is the impugned order is perfectly justified and petitions need to be dismissed at the outset.

The judges heard the submission of both the parties and referred to the judgment in the case of A.K.Subbaiah & Ors vs. State of Karnataka & Ors. 1987 SCC (4) 557, wherein it was held that, “Sub-clause 2 of this Sec. talks of a situation where an order is being passed against any person and it was contended by the learned counsel that the section not only talks of accused persons but also of “or other person unless he has had an opportunity of being heard.” Apparently this sub- clause contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Sec. 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party. Learned counsel for the appellants was not in a position to contend that even if any contention of the appellants is accepted and the High Court accepts the revision petition as it is, there will be any situation where an order may be passed against these two respondents or they may be joined as parties to the proceedings. Reference to Section 401 clause 2 is of no consequence so far as these two respondents are concerned. In the light of the discussions above therefore it is clear that the question about anyone else being instrumental in getting the prosecution launched or questions which are foreign are not to be considered in a revision where the issue of process is being challenged and therefore the further question as to whether the party against whom an allegation is made is or is not a necessary party in the proceedings also is of no avail. The scope of the revisional jurisdiction of the High Court as we have discussed earlier clearly indicates that the High Court is only expected to see the legality, correctness or the propriety of the order, which is an order of issue of process, these things could only be seen by looking into the complaint and the accompanying papers and evidence if any which were before the court below. In our opinion, the High Court was right in deleting the names of the two respondents.”

Applying the rationale in the above-mentioned case, the court set aside the order passed by the revisional court by holding, “Thus as is seen above „other person‟ does not include a complainant in revision. This is a State prosecution and at the highest the complainant can be a witness to the proceedings and can participate through learned APP for the Sate but cannot be a party to the revision petition. The judgments relied upon by the respondents did not consider A .K. Subhaiah’s (supra). I agree with the petitioner if we allow the complainant to participate before the Session’s it shall change the entire nature of the proceedings from criminal to civil and hence shall hamper independence of prosecution. The complainant can at best assist the prosecution, though prosecution in such a case has to make an independent call.”

Click here to read the judgement