1. Legality of the order dated 16-1-1997, passed by the learned IV additional Sessions Judge, Chhatarpur in Cr. R. No. 50/96 reversing the order dated 1-2-1996, passed by the learned Judicial Magistrate First Class, Chhatarpur in an unregistered complaint case is called in question by the present revisionist.
2. The essential facts giving rise to the present revision are that the non-applicant as complainant filed a criminal complaint for offences Under Sections 406, 420, 465 and 120B of the Indian Penal Code (in short 'the IPC) against the present petitioner and 2 others alleging that a Banker's cheque duly crossed was issued by the competent authority of the Education, District Chhatarpur in the name of the Head Master, Primary School, Dhadari amounting to Rs. 10,000/- for construction of School building. The aforesaid cheque was sent to the Head Master of the Govt. Middle School, Dhadari who was to hand over the said cheque to the Head Master, Govt. Primary School, Dhadari, but, instead of doing so he deposited the cheque in the account of the Head Master of Govt. Middle School, Dhadari in the State Bank of India, Chhatarpur. It was alleged in the complaint petition that the Head Master, Govt. Middle School was assisted by the other accused persons who are the bank officials. The matter was reported by the Head Master of the Primary School to the Higher Authorities of the Department of Education and the authorities of the State Bank of India. On receipt of such report the competent authority of Education Department, Chhatarpur communicated with the State Bank of India by letter dated 14.4.1991. As a consequence of which the Head Master of Middle School prepared a Banker's cheque and gave it to the complainant. It was further alleged that accused No. 1 had colluded with other accused persons and after interpolating the cheque, had deposited the same in his name with a view to misappropriate the Government's money. The complainant examined himself Under Section 200 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'). The learned Magistrate observing that there were no materials to make out a prima facie case against the accused persons, by his order dt. 1-2-1996 rejected the complaint.
3. The order rejecting the complaint was challenged by the complainant in a criminal revision which came to be disposed of by the learned Additional Sessions Judge, Chhatarpur. The learned Additional Sessions Judge set aside the order passed by the learned Magistrate and directed the trial Court to inquire into the matter afresh. Certain facts were highlighted by the revisional Court while passing this direction.
4. Challenging the impugned order Mr. Y. P. Sharma, learned counsel for the petitioner has contended that the revisional Court has erred in law by setting aside the order passed by the Magistrate without issuing notice to the accused non-applicants, therein. It is his further submission that order directing for fresh inquiry was not warranted in the facts and circumstances inasmuch as the learned Magistrate had passed the order refusing to register the complaint on analysis of the materials on record in proper perspective.
Combating the aforesaid submissions, Ku. Tripti Kholiya learned counsel for the non-applicant complainant, has canvassed that the accused persons were not entitled to notice from the Revisional Court inasmuch as issue in controversy was whether the learned Magistrate was justified in the facts and circumstances of the case in refusing to register the complaint case. Her submission, in essence, is that the accused persons are not necessary parties to the revision of this nature as the accused persons have no locus standi to participate before the process is issued. Her further contention is that as the Revisional Court has scrutinised the factual matrix and had directed for fresh consideration by the learned Magistrate, the order does not call for any interference by this Court in exercise of its revisional jurisdiction.
5. The core question that falls for determination is that whether the learned additional Sessions Judge was correct in disposing of the revision on merits without notice to the accused persons who were arrayed as non-applicants before him. On a perusal of order, I find that the revisional Court has taken note of fact that the learned Judicial Magistrate had not issued process against the accused persons, and therefore, they were not entitled to be heard. The heart of the matter is whether an accused has any role to play before the issuance of process. The grievance of the complainant was that the Magistrate had refused to issue process to the accused persons. The said order was the subject-matter of challenge in revision. The accused has no locus standi to participate before the process is issued. In this regard I may refer to the decision rendered in the case of Chandra Deo Singh v. Prakash Chandra Bose alies Chabi Bose, AIR 1963 SC 1430, wherein the Apex Court held as follows:-
"The entire scheme of Ch. XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so."
Again in the case Smt. Nagawwa v. Veeranna Shivallingappa Konjalgi, AIR 1976 SC 1947, their Lordships of the Apex Court held as under:-
"It would thus be clear from the two decisions of this Court that the scope of the inquiry under
Section 202 of 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 - (i) on the material placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie 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 absolutely to locus standi and is not entitled to be heard on the question whether the process should be issued against him or not."
The High Court of Orissa in the case of KeshabJena v. Pradipta Kishore Das, (1989) 2 O.C.R. 34, laid down as under:-
"It has been repeatedly held by the Supreme Court that at the time of issuing process the accused has no locus standi to participate in the enquiry and that further the case is to be judged exclusively from the point of view of the complainant only. At that stage, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he has only to be prima facie satisfied whether there was sufficient grounds for proceeding against the accused."
The same view was taken in the case of Bhagyalaxmin alias Laxmi Chundi v. Fatal Krushna, 1991(1) CLR 59. At this juncture I may also refer to a decision rendered in the case of M. Thulasidass v. K. Govindaraju, 1995 Cri.L.J. 1660, wherein Madras High Court has expressed this:
"The order has been passed by the learned Magistrate Under
Section 203, Criminal Procedure Code holding that prima facie the complaint did not disclose any commission of offence and on more suspicion, the complainant came forward with the complaint. While passing the order Under
Section 203, Criminal Procedure Code the accused petitioner herein was not before the Court and process also was not issued. Therefore, before the state had reached, for issue of a process to the accused, the order has been passed by the learned Magistrate Under
Section 203, Criminal Procedure Code, while so, before the learned Sessions Judge also, the same stage continues and the question is whether the process has to be issued against the accused or not? When the order has been passed Under
Section 203, Criminal Procedure Code without hearing of the accused, in the revision against that order also, I feel that the accused person need not be heard because he has not been summoned to the Court."
6. In view of the aforesaid enunciation of law it is luminously clear that the accused-has no locus standi to appear and participate before the process is issued. This being the accepted position of law it can safely be concluded that when a revision is filed challenging the order refusing to take congnizance the accused has no locus standi to contest. He is not a necessary party. The determination is to be made by the Court to find out the approach of the Court below and to scrutinise the justifiability of the order refusing to take cognizance. This being the position of law disposal of revision by the revisional Court without issuing notice to the non-applicant is not infirm or pregnable. Once it has been held that the accused persons have no role to play before process is issued the revision at their instance challenging the order of the revisional Court directing the Magistrate to reconsider the matter is not tenable as they cannot raise grievance in regard to the same as yet there is no direction for issuance of process.
7. The present revision is liable to be dismissed on the basis of the conclusion reached by me with regard to the locus standi of the petitioner. However, to satisfy myself I have also closely scanned the reasonings of the revisional Court directing for reconsideration of the matter by the learned Magistrate. The reasonings are quite cogent and acceptable. I do not find any infirmity in the same, and, there is no impose to give the stamp of approval of this Court to the said order.
3. Consequently, the revision fails and the same is accordingly dismissed.