Judgment:
Criminal Appeal No. 927 of 2007 (Arising out of SLP (Crl.) No.2535 of
2006)
Dr. Arijit Pasayat, J.-
Leave granted.
Challenge in this appeal is to the order passed by a learned Single
Judge of the Calcutta High Court allowing the application under Section
401 read with Section 402 of the Code of Criminal Procedure, 1973 (in
short the 'Code').
The main grievance in support of the petition is that the appellants
were not granted opportunity of being heard before the petition was
allowed by the learned Judge.
A brief reference to the factual aspects would suffice.
Appellant No.1 is the wife of appellant No.2 who is a
doctor by profession. Respondent No.1 filed a complaint
alleging commission of offences punishable under Sections
323, 342, 382, 386 read with Section 120B of the Indian
Penal Code, 1860 (in short the 'IPC'). The learned Magistrate
dismissed the complaint after recording statements of the
complainant and two others. Questioning correctness of the
order passed by the learned Magistrate, an application for
revision was filed before the learned Additional District and
Sessions Judge, First Track Court V, Alipore, South 24-Parganas. After hearing the revision petitioner-respondent
No.1 herein the said revision petition was dismissed.
5. Before the High Court the revision petition was treated to
be one under Section 482 of the Code, though styled as one
under Section 401 read with Section 402 of the Code. The
High Court allowed the petition and directed the Magistrate to
issue process against the appellants.
6. Learned counsel for the appellants submitted that before
the revisional Court the appellants were heard. Initially in the
present petition the appellants were impleaded as parties but
at the request of respondent No.1, their names were deleted.
Learned counsel for the appellants has further submitted that
though the respondent No.1 himself had styled the petition as
one under Section 401 read with Section 402 of the Code, the
High Court erroneously treated it to be a petition under
Section 482 of the Code. It is clear from the cause title that
the case was registered to be one under the criminal revisional
jurisdiction and in view of the bar contained in the code
second revision was not maintainable. In any event, appellants
were not heard before the order was passed.
7. Learned counsel for respondent No.1 submitted that in
the matter of issuance of process the accused has no right to
be heard.
8. There can be no quarrel with the proposition that at the
time of issuance of process and taking cognizance the accused
has no right to be heard. But in the facts of the instant case
before the Revisional Court the appellants were heard.
Further, their names were indicated in the cause title, which
at the request of respondent No.1 were deleted.
9. Above being the position the High Court ought to have
heard the appellants before deciding the matter. Therefore,
without expressing any opinion on the merits of the case and
maintainability of the petition before the High Court, we set
aside the impugned order and remit the matter to the High
Court for fresh disposal in accordance with law.
10. The appeal is disposed of accordingly.
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