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Judgment
R.R.K. Trivedi, J.—Heard learned counsel for the applicants.
The facts giving rise to this criminal revision are that on 21st December, 1992, a first information report was lodged by Om Prakash Singh Kushwaha to the effect that after school was closed at 4.00 p.m. his son Vivek Kumar alias Pintoo was coming back to home with, Sudha daughter of his younger brother. He was intercepted by some person and under the pretext that his grand-mother has suffered from a snake bite and everybody is in the hospital and he has also been required there by his family members. Boy Vivek Kumar was thus taken away. Daughter Sudha however, went back to school and informed her teachers about this occurrence. Sudha was ultimately sent to her home by help of school staff. On knowing this happening a search was made but Vivek Kumar could not be traced in spite of the best efforts. On 24th December, 1992, the body of the boy was found near Dadri Ghat of river Ganga at Ghazipur. On this information, case crime No. 806 of 1992, under Sections 364, 302, 109, 201 and 120, I.P.C. was registered at Police Station Kotwali, District Ghazipur. A confessional statement was given by accused Ram Bachan Kushwaha. His statement u/s 164, Cr.P.C. was recorded on 16th January, 1993 by the Magistrate. The police after investigation filed a report u/s 173, Cr.P.C. against accused Ram Bachan and Radhey Shyam Singh Kushwaha. However it submitted a final report so far as present applicants are concerned. The complainant then filed a criminal complaint against applicants registered as criminal case No. 898 of 1993 before the Chief Judicial Magistrate, Qhazipur. It appears that the case was transferred to the Court of Assistant Chief Judicial Magistrate, Ghazipur where it has been renumbered as criminal case No. 12.55 of 1993. The complainant examined himself u/s 200, Cr.P.C. and also examined three witnesses u/s 202, Cr.P.C. and also filed an affidavit of the M.edical Official (Doctor) and other documentary evidence namely statement of Ram Bachan u/s 164, Cr.P.C. recorded by the court. The learned Assistant Chief Judicial Magistrate on basis of this material felt satisfied and summoned the applicants by his order dated 1st June, 1994 u/s 364 and 368, I.P.C. which has been challenged in the present revision.
Learned counsel for the applicants has challenged the order on the ground that the applicants were not given any opportunity of hearing before summoning and the order is violative of principles of natural justice. It has been submitted that as final report was submitted by the police so far as the applicants are concerned, they ought to have been given an opportunity of hearing before passing the summoning order. Reliance has been placed on a decision of this Court in case of Gajendra Kumar Agarwal v. State of U.P., reported in 1994 ACC 341.
I have seriously considered the submission of the learned counsel for the applicants and I have also perused the view expressed by the learned single Judge in case of Gajendra Kumar Agarwal.
It would be very appropriate at this place to discuss the position of the accused in a criminal case at different stages of investigation, enquiry and trial and his right to appear and participate in criminal proceedings. Hon''ble Supreme Court through a constitutional bench consisting of five Judges in case of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, expressed its view in the following words at Page 1432; of AIR:�
"Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure 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. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the persons named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interest of justice. But beyond that, he cannot go. It was, however, contended by Mr. Sethi for respondent No. 1 that the very object of the provisions of Ch. XVI of the Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. A privilege conferred by these provisions can, according to Mr. Sethi, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects behind the provisions of Section 202, Cr.P.C. is to enable the Magistrate to scrutinise 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 obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at this stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry u/s 202 can in no sense be characterised as a trial for the simple reason that in law there can be put one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provisions permitting an accused person to take part in any enquiry."
The view expressed by the constitutional bench has been followed by the apex court in subsequent decisions. In case of State of Bihar Vs. Ramesh Singh, , Hon''ble Supreme Court has observed that if the scale of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand it is so at the initial stage of making of order under Sections 227 or 228 then in such a situation ordinarily and generally the order which will have to be made, will be one u/s 228 and not u/s 227. The only inference which can be drawn from the aforesaid observation of the Hon''ble Supreme Court is that at the stage of summoning, the court has to look ''into as to whether there is prima-facie case to summon the accused for trial and even if there is some doubt which on the conclusion of the trial may result in acquittal, may not be sufficient to drop the proceedings. Thus to recognise a right in accused to appear at this stage and contest proceedings can only frustrate the enquiry about accusation with an object of prima-facie satisfaction. At this stage the enquiry with the limited purpose cannot be allowed to be converted into a trial as there can be only one trial. To recognise the right of participation by the person against whom, accusation is made at this stage may amount to a pre-trial which is unknown to the criminal jurisprudence.
In case of Gajendra Kumar Agarwal the main reason for recognising such a right in accused appears to be based on case of Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, . Therefore it would be appropriate to consider the view expressed by the apex court after 1978. Hon''ble Supreme '' Court in case of Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, observed as under at Page 597; of AIR:
"An inquiry u/s 202 of the Code is not in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial can commence only after process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused until it is decided to issue process against him. Even if he participates in the proceedings u/s 202 of the Code, he does so not as an accused but as a member of the public. The object of the inquiry u/s 202 is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a person cannot even, be legally called to participate in the proceedings u/s 202 of the Code."
Similarly in case of R.S. Nayak Vs. A.R. Antulay and Another, Hon''ble Supreme Court referred and followed the view expressed by Hon''ble Supreme Court in its earlier decision in cases reported in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, Thus, in my opinion, in the Scheme provided by the various provisions of the Criminal Procedure Code it is difficult to recognise a right in the accused person- to participate before issuing process either in complaint case or in a police case. It may be noticed that the Criminal Procedure Code, 1973 contains provisions to protect the interest of the accused at various levels even before the commencement of actual trial. Such provisions are contained in Sections 227, 239 and 245 of Code of Criminal Procedure. Thus there is no likelihood of any prejudice being caused to the person against whom a complaint is filed and if he is not allowed an opportunity of hearing at any stage before the process is issued against him. As noticed, earlier, Hon''ble Supreme Court has already observed that until the process is issued against the accused, the proceeding is not between the complainant and the accused as until the process is issued, there is no accused person. Until the process is issued the proceedings are strictly between the complainant and the court. Whether the complainant appears before the Court by way of protest petition against a final report or a complaint case is filed, it makes no substantial difference so far as this legal position is concerned. His position is some how identical to the position of a workman in reference proceedings before the State Government u/s 4K of U.P. Industrial Disputes Act. A Division Bench of this Court in case of. Indian Explosives Limited (Fertiliser Division), Pankj,, Kanpur v. State of U.P., reported in 1981 (42) FLR 423: 1981 Lab IC 148 held that when the State Government by motion or by a positive order declines to make a reference, there is no exercise of power u/s 4K of the Act and therefore when the State Government ultimately chooses to make a reference the question of affording the management a hearing before taking a different decision, does not and cannot arise. There is no doubt about the legal position that an opportunity of hearing is not required to be given for making a reference by the Government to the Labour Court or Industrial Tribunal and the reason behind it is that by order of the reference the employer is not directly effected by the referring order but parties are brought only to the forum to settle the dispute which is necessary for the industrial peace and harmony. In criminal case also, the court at the initial stage considered as to whether there is prima-facie case against the accused requiring to summon him for trial, no opportunity is required to be given at this stage. The view expressed by Hon''ble Supreme Court in case of Bhagwant Singh Vs. Commissioner of Police and Another, recognising in complainant, a right of hearing before accepting final report are based on entirely different considerations. Position of complainant so far as the criminal proceedings initiated on a First Information Report is concerned is entirely different from the accused. On acceptance of the final report submitted by police, the proceedings come to a close and so far as he is concerned it would be the end of the matter. However, the position of accused is entirely different. If on a protest petition filed against final report the accused is summoned, he will get full opportunity of hearing provided under the law. He is entitled even to dispute and challenge the prime-facie view taken by the Magistrate under Sections 227, 239 and 245 Cr.P.C. Thus the position of the accused and complainant could not be legally equated and the view expressed by Hon''ble Supreme Court in Bhagwan Das''s case could not be legally extended so far as accused is concerned.
There is yet another very formidable reason for not recognising such a right in accused at this initial stage. In criminal cases inquiries and trials are taking long time, judicial notice of which may be taken. If right of hearing is allowed at this preliminary stage, it shall further delay the conclusion of inquiries and trials and shall create serious complications. If right of hearing is allowed at this pre-trial stage, then orders will be passed which shall be followed by challenges before upper courts in revisions and before superior courts in writ petitions. Recognition of such right will defeat the ends of justice instead of promoting it. Principles and concepts behind recognising right at hearing before passing an order entailing adverse consequences against civil rights of citizens cannot be extended to criminal cases in this manner and until the stage is reached when an order may be passed against the person concerned adversely affecting him. Such a stage does not come until the process is issued calling him to appear before court to answer. The allegations made against him, till then there is no question of passing an order adversely affecting him. The order merely calling upon him to appear before court, commonly known as summoning order cannot be termed an adverse order passed against him, on the ground that he has not been given opportunity of hearing. On the other hand in fact, process is issued against him for giving right of hearing.
For the reasons stated above, with all respect and regards to my learned brother, I express disagreement and in my opinion, the judgment reported in 1994 ACC 341 is not good law, as the legal position in this regard, expressed by the Hon''ble Supreme Court, which has been consistently same before and after Maneka Gandhi''s case and the provisions contained in Sections 227, 239 and 245 Cr.P.C. have not been considered. The revision thus has no merit and is hereby rejected.