Nandram vs State Of Rajasthan And Ors

The petitioner, by way of this criminal misc. petition, challenges the order dated 22.3.2012 passed in a revision petition filed by non-petitioner - Gopal

Das Gupta, who is the co-accused and submits that in the revision petition filed by non-petitioner - Gopal Das Gupta, the petitioner who is a co-

accused and against whom charge was also framed, was required to be heard.

Learned counsel for the petitioner submits that on account of his absence, the order passed by the Additional District & Sessions Judge, No.2, District

Alwar (hereinafter referred to as 'the Court below') in revision petition is vitiated more so as in the impugned order dated 22.3.2012 observations have

come against the petitioner and the criminal liability has been shifted entirely upon the petitioner by the Court below without giving any hearing to the

petitioner. Learned counsel further submits that the charges were framed under Section 7/16 of the Prevention of Adulteration Act 1954 (hereinafter

referred to as ""the Act of 1954"") as against the petitioner as well as non-petitioner - Gopal Das Gupta.

Learned counsel has relied on the provisions of Section 401(2) Cr.P.C. wherein the provision enjoins upon the revisional court to give opportunity of

hearing to the accused or other person. Learned counsel also relies on the judgment in Manharibhai Muljibhai Kakadia & Anr. Versus Shaileshbhai

Mohanbhai Patel & Ors.: (2012) 10 SCC 517 where the accused was held to be entitled to opportunity of hearing in revision petition.

No one appears for non-petitioner - Gopal Das Gupta although notices have been served upon him.

Learned Public Prosecutor does not oppose the principle as laid down by the Apex Court in Manharibhai Muljibhai Kakadia & Anr. (supra), however,

he submits that the law laid down therein was in reference to a revision filed by the complainant whereas in the present case, the revision has been

filed by the co-accused.

I have considered the submissions.

The provisions of Section 401(2) Cr.P.C. reads as under: ""401. High Court's Powers of revisions.

(1) ....

(2) No order under 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.

In Manharibhai Muljibhai Kakadia & Anr. (supra), the Apex Court was examining the issue with reference to Section 401(2) Cr.P.C. and held as

under:

We are in complete agreement with the view expressed by this Court in P. Sundarrajan (2004) 13 SCC 472, Raghu Raj Singh Rousha: (2009) 2

SCC 363 and A.N. Santhanam 2011 (2) JCC 720 (SC). We hold, as it must be, that in a revision petition preferred by complainant before the High

Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint Under Section 203 of the Code at the stage Under

Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed

crime is entitled to hearing by the revisional court. In other words, where complaint has been dismissed by the Magistrate Under Section 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 right to be heard in such revision petition. This is a plain requirement of Section

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 persons who are alleged in the complaint to have committed crime have, however, no right to participate in the

proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for

issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.

Therefore, the said judgment was with reference to a case where revision was filed by the complainant against his rejection of protect petition. The

revisional court had allowed the revision and accepted the protest petition and had taken cognizance against the accused. Thus, in the facts and

circumstances, the Supreme Court directed that right exists of an accused of being heard before passing the order in the revision, however, it also laid

down by way of caution that so far as at the stage of taking cognizance is concerned, right of hearing does not exist in favour of the accused.

In terms of Section 401 (2) Cr.P.C. a right of hearing has been provided to the accused or other person if the order is passed to their prejudice. This

would also therefore mean that where a culpability if shifted from one accused to another, on a revision filed by the former, the later will also have a

right of hearing.

If the facts of the present case are examined in light of the aforesaid principle, this court finds that both the petitioner - Nandram and non-petitioner -

Gopal Das Gupta were the owners of the firm. The petitioner is his employee. In the revision order, Gopal Das Gupta has been discharged and

observations have been made putting the entire culpability on the petitioner. Thus, the case of the petitioner has been prejudiced, hence, he was

required to be heard before any such observations could have been made by the court.

It is noticed that the trial Court has framed charges against both the accused i.e. petitioner - Nandram and non-petitioner - Gopal Das Gupta under

Section 7/16 of the Act of 1954. The co- accused - Gopal Das Gupta has filed a revision petition and in the revision petition, vide impugned order

dated 22.3.2012, learned Court below made observations against petitioner - Nandram and even proceeded to hold that name of co-accused - Gopal

Das Gupta was entered only at the instance of the petitioner, who was present at the time of conducting inspection and relying upon such a fact has

proceeded to discharge the co-accused. Thus, prejudice has been caused to the accused petitioner while passing the impugned order dated 22.3.2012.

Admittedly, no opportunity of hearing was given to the petitioner. Thus, this Court is satisfied that the provisions of Section 401(2) Cr.P.C. had not

been followed and therefore, the impugned order dated 22.3.2012 stands vitiated. Accordingly, the order dated 22.3.2012 is set aside and the matter is

remanded back to the learned Court below to re- examine the revision petition filed by co-accused - non-petitioner- Gopal Das Gupta after giving

opportunity of hearing to the petitioner. The criminal misc. petition is accordingly allowed.