PRABHA MATHUR & ANR. versus PRAMOD AGGARWAL & ORS.

[2008] 13 S.C.R. 1086

PRABHA MATHUR & ANR.

II. PRAMOD AGGARWAL & ORS. (Criminal Appeal No.1532 of 2008) SEPTEMBER 26, 2008 [C.K. THAKKER AND D.K. JAIN, JJ.]

Writ petition - Disposal of - Notice and opportunity of hearing - Requirement of - Complaint of cheating against [appellants ][-][ Dismissal ][of, ][by ][Trial ][Court and ][Sessions ][Judge ]-- Complainant filing writ petition High Court allowing writ petition without issuing notice to appellants and without afford-ing opportunity of hearing - Propriety of - Held: Not proper -High Court arrived at finding as to mens rea on part of ap-D [pellants which could not be arrived at without issuing notice ][to ]appellants and without affording opportunity of hearing -Moreso, when appellants were joined as respondents in writ petitions - In any event, in accordance with Rule 2 of Chapter XX/I of Allahabad High Court Rules, 1952, notice was required to be issued to appellants before hearing and deciding writ --petitions Allahabad High Court Rules, 1952 Chapter XX/I - Rule 2 - Penal Code, 1860 - ss. 420, 467, 468 and 471 r. w. ss.34 and 1208 - Principles of natural justice - Administra-five Law.

Prosecution case was that the complainants were in the business of sale and purchase of property. They contacted appellants for purchase of property owned by appellants. The appellants sold the property to the com-plainant and received payment from complainants. How-G [ever, appellants ][did ][not come ][to ][the office of Sub-Regis-]trar for registration of sale deeds as was agreed between them. Thereupon, complaint case was filed against ap-pellants under ss.420, 467, 468 and 471 r.w. ss.34 and 1208 IPC. Chief Judicial Magistrate dismissed the com-

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plaint holding that the case was civil in nature. This order

was upheld in revision petitions. The complainants filed writ petitions before High Court. High Court without issu-ing notice to the appellants and without affording oppor-tunity of hearing allowed the writ petitions and remanded the matter to Chief Judicial Magistrate with direction to make further enquiry in the matter. Hence the present appeal.

_l)isposing of the appeal and remitting the matter to High court, the Court

HELD: 1.1 It is no doubt true that the accused has

no locus standi at the stage of investigation and he can-not insist for hearing before process is issued against him. At the most, an accused may remain present with view to be informed as to what is going on and nothing more. It is equally correct that if person has no locus standi or right of hearing, such right does not accrue in his favour by an indirect process. On the facts and in the circumstances of the .case, however, High, Court ought to have issued notice and afforded hearing before passing the impugned order in writ-petitions. Both the Courts de-cided the case in favour of the appellants and the com-plaint was dismissed. The complainants approached the High Court by joining appellants as respondents. The writ petitions were not dismissed in limine. !n' accordance with Rule 2 of Chapter XXH of the Allahabad High Court Rules, 1952, notices oughUo have been issued to the appellants before the writ petitions were heard and finally decided, But even otherwise, issuance of such notice to the ap-pellants was necessary and was in consonance with the principles of natural justice and fair play. From the record it is clear that the present appellants were arrayed as re-spondents in the writ petitions and yetthe High Court did not think it appropriate to observe natural justice. [Paras 16-19, 24] (1093,B; 1093,C-F; 1095,D]

Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi &

Ors. (1976) 3 SCC 736; Chandru Oeo Singh v. Prakash Chandra Bose & Anr (1964) 1 SCR 639 and in Shashi Jena & Ors. v. Khadal Swain & Anr AIR (2004) 4 SCC 236 - re-ferred to.

1.2. Even on merits, the impugned order of the High

Court is not sustainable. The High Court made certain observations against the appellants which prejudicially and adversely affected them. High Court had given "anx-ious consideration" to the matter and it found that there was no question of not executing the sale deed according to the schedule or prescribed conditions by the appellants, but it reflected "criminal intention". It further observed that had the accused not induced the complainants to pur-chase the property, the latter would not have parted with huge amount and it was "clear case of cheating". The find-ing as to mens rea on the part of the appellants and that 'clear case of cheating' being made out, could not have been arrived at without issuing notice to the appellants and without affording opportunity of being heard. Though final direction to the trial Court is to hold further inquiry and to make an appropriate order, in view of earlier por-tion in the judgment probably, no option has been left with the trial Court, but to issue process. It is thus case of fait accompli. [Paras 20, 22, 23] [1093,G; 1094, F-G; 1095,B-C]

Case Law Reference

(1976) ~ sec 736

referred to Para 16 referred to Para 16 referred to Para 16

(1964) 1 SCR 639

AIR (2004) 4 sec 236

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1532 of 2008

From the final Judgment and Order dated 26.09.2006 of the High Court of Judicature at Allahabad in Criminal Misc. Writ Petition Nos. 9952 & 9953 of 2006

Dr. Rajeev Dhawan, Apoorva Karol and R.S. Suri for the Appellants.

S.G. Hasnain, Pramod Swarup, Sandeep Singh and Anuvrat Sharma for the Respondents .

The Judgment of the Court was delivered by

C.K. THAKKER, J. 1. Leave granted.

2. The present appeal is directed against the judgment and order dated September 26, 2006 passed by the High Court of Judicature at Allahabad in Criminal Writ Petition Nos. 9952- 53 of 2006. By the said order, the High Court set aside the order dated July 16, 2005, passed by the Special Chief Judi-cial Magistrate, Agra and confirmed by the Additional Sessions Judge, Agra on July 29, 2006 dismissing the complaint filed by the complainants against the accused for offences punishable under Sections 420, 467, 468, 471 read with Sections 34 and 1208, Indian Penal Code, 1860. The High Court remanded the matter to the trial Court with direction to make further inquiry in the matter and to pass an appropriate order in accordance with law.

3. Brief facts giving rise to the present appeal are that Pramod Kumar Aggarwal and Smt. Taruna Aggarwal, wife of Pramod Kumar Aggarwal (hereinafter referred to as 'the com-plainants') are in the business of sale and purchase of prop-erty. It was the case of the complainants that they contacted the appellants herein for purchase of the property from the appel-lants since appellants were having share in the property situ-ated at village Nagla Padi Muhai Beni Prasad Tehsil, District Agra in front of Civil Court, Agra which was joint family prop-erty. The complainants apprised the appellants-herein that they were interested in purchasing share of the property owned by the appellants. They were also to purchase the remaining prop-erty from other co-owners. According to the complainants, the appellants sold their shares in the property to the complainants. Payment was made by the complainants to the appellants. It

was the allegation of the complainants that it was agreed be-tween the parties that sale-deeds would be executed by the appellants in favour of purchasers. Sale-deeds were also drafted. The appellants, however, did not come to the office of Sub-Registrar, Agra for registration of sale-deeds. The appel-B [lants induced the complainants, gave false assurances and ]cheated them. Thereby the appellants committed offences pun-ishable under Sections 420, 467, 468 and 471 read with Sec-tions 34 and 1208 of the Indian Penal Code (IPC). complaint was, therefore, filed by the complainants in the Court of Special

[Chief Judicial Magistrate, Agra, being Complaint Case No. ]1962 of 2003. The learned Magistrate after recording state-ments of witnesses, examining documents produced by the com-plainants and perusing inquiry report submitted by the Police held that the entire case was of civil nature. There was, there-D [fore, no justification for initiating criminal proceedings. He, ac-]cordingly, dismissed the complaint.

4. Being aggrieved by the above order, the complainants

approached the revisional Court by filing revisions being Crimi-nal Revision Nos. 235-36 of 2005. The Additional Sessions [Judge again considered the relevant record, heard the argu-]ments of both the parties and held that no error was committed by the trial Court in dismissing the complaint and the revision petitions were liable to be dismissed. Accordingly, both the re-visions were dismissed by the Additional Sessions Judge,

[Agra. ]

5. The complainants in view of dismissal of complaints

and revisions challenged those orders by instituting Criminal Writ Petition Nos. 9952-53 of 2006 in the High Court of Judica-ture at Allahabad.

6. The High Court without issuing notice to the appellants

herein and without affording opportunity of being heard, allowed both the writ petitions, set aside the order passed by the trial court and confirmed by the revisional court and remanded the matter to the learned Magistrate with direction to make fur-

ther inquiry in the matter and to pass an appropriate order in accordance with law. The said order is challenged by the ap-pellants herein.

7. On March 08, 2007, notice was issued and further pro-

ceedingswere stayed. In the said order, it was indicated that the notice will state as to why the petition should not be disposed of at the SLP stage by setting aside the order of the High Court and by remitting it for fresh disposal in accordance with law .

8. Affidavits and further affidavits were thereafter filed. The

Registry was directed to plac~ the matter for final disposal on non-miscellaneous day and that is how the matter has been placed before us.

9. We have heard the learned counsel for the parties.

10. The learned counsel forthe appellants contended that

the order passed by the High Court deserves to be quashed and set aside on the ground that the order was not in conso-nance with principles of natural justice and fair play. It was sub-mitted that complaints were filed against the appellants. Seri-ous allegations were leveled against them that they had com-E mitted certain offences punishable under the Indian Penal Code . (IPC). The appellants convinced the Court that the entire trans-action was in the nature of Civil dispute between the parties and criminal proceedings could not have been initiated. After ap-plying mind and considering the relevant material on record, the trial Court was satisfied that no complaint could have been [F ]filed against the appellants. Accordingly, the complaint was dis-missed. The said order was confirmed in revision by the Addi-tional Sessions Judge. The High Court could not have set aside the order passed by the Courts below without issuing notice and affording opportunity of hearing to the appellants. The or-G der passed in the writ petitions in violation of principles of natu-ral justice deserves to be set aside .

11. It was also submitted that under the Allahabad High

Court Rules, 1952, ('Rules' for short}, when any person is joined

as respondent in writ petition, notice must be issued to such person if the Court does not reject the petition. In the instant case, both the Courts decided in favour of the appellants and the complaint filed by the complainants was dismissed. Even if the High Court felt that the orders passed by the Courts below [were ][not ][in ][consonance ][with ][law, ][it ][was ][incumbent ][on ][the ][High ]Court to issue notice to the appellants and only thereafter an appropriate order could have been passed. Only on that ground, the impugned order deserves to be set aside.

12. It was also submitted that even on merits, the order

12. It was also submitted that even on passed by the High Court is not sustainable.

13. The learned counsel for the complainants supported

the order passed by the High Court and the directions issued therein. It was submitted that whatever might have been stated [by ][the ][High ][Court ][in ][the ][course of deciding writ petitions, the ]final direction to the trial Court is to make further inquiry and to pass an appropriate order. Such direction could not be said to be contrary to law.

14. Regarding notice and hearing, the counsel submitted

[that under ][the ][Code ][of Criminal Procedure, 1973 (hereinafter ]referred to as 'the Code'), an accused has no locus standi till summons or process is issued to him. It is not in dispute that no summons has been issued to the appellants so far. Even the High Court has also not directed the trial Court to issue sum-F [mons ][to ][the ][appellants ][and ][hence, ][there ][is ][no ][question of giv-]ing notice or affording hearing to the appellants. It is only after the trial Court issues summons or process that the appellants may challenge the said action by taking appropriate proceed-ings known to law. At this stage, however, appellants cannot be [heard ][to ][make ][grievance of absence of hearing. Upholding of ]such contention would indirectly give the appellants locus standi unknown to the Code. It was, therefore, submitted that the ap-peal deserve to be dismissed.

15. The learned counsel for the State supported the argu-

[ments ][advanced ][by ][the ][learned counsel for ][the ][complainants. ]

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16. Having heard the learned counsel for the parties, in our opinion, the appeal deserves to be allowed. It is no doubt true, as held by this Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors., (1976) 3 SCC 736 and reiter-ated in several other cases that the accused has no locus standi at the stage of investigation and he cannot insist for hearing 8 before process is issued against him. It was also held in Chandru Dea Singh v. Prakash Chandra Bose & Anr., ( 1964) 1 SCR 639 and in Shashi Jena & Ors. v. Khadal Swain & Anr., AIR (2004) 4 sec 236 that at the most, an accused may re-main present with view to be informed as to what is going on and nothing more. It is equally correct that if person has no locus standi or right of hearing, such right does not accrue in his favour by an indirect process.

17. On the facts and in the circumstances of the case, how-

ever, in our opinion, submission of the learned counsel for the appellants is well-founded that the High Court ought to have issued notice and afforded hearing before passing the im-pugned order in writ-petitions.

18. We have already noted that both the Courts decided

the case in favour of the appellants and the complaint was dis-missed. The complaints approached the High Court by joining appellants as respondents. The writ petitions were not dis-missed in limine. In accordance with Rule 2 of Chapter XXll of the Rules, notices ought to have been issued to the appellants before the writ petitions were heard and finally decided.

19. But even otherwise, issuance of such notice to the ap-pellants was necessary and was in consonance with the prin-ciples of natural justice and fair play.

20. Even on merits, the impugned order of the High Court is not sustainable. The High Court made certain observations against the appellants which have prejudicially and adversely affected them .

21. In this connection, learned counsel for the appellants

invited our attention to the following portion of the judgment of the High Court;

"The Court of Special Chief Judicial Magistrate, Agra dismissed the said complaint holding that simply because the deed was not executed according to the scheduled conditions no penal offence is made out. The Revisional Court also cited certain authorities and ultimately dismissed the Revision. I have given my anxious consideration to the matter and I find that this is not question of not executing the sale deed according to the schedule or prescribed conditions, but it shows the criminal intention of the opposite parties who obtained the money by way of case and Bank draft an did not execute the sale deed. Had the opposite parties not induced the complainant to purchase the property, the complainant would not have parted with this huge amount which is clear case of cheating. Thus, the order of the Special Chief Judicial Magistrate, Agra and that of · Revisional Court are devoid of any force. The order dated 16.7.2005 passed by Special Chief Judicial Magistrate, Agra and the order dated 29. 7.2006 passed by Revisional Court in Criminal Revision No. 235/05 and in Criminal Revision No. 236/05 are liable to be set aside".

(emphasis supplied)

22. Bare reading of the above paiagraph shows that the High Court had given "anxious consideration" to the matter and it found that there was no question of not executing the sale deed according to the schedule or prescribed conditions by the appellants herein, but it reflected "criminal intention". It was [further observed that had the accused not induced the com-]plainants to purchase the property, the latter would not have parted with huge amount. It was thus "clear case of cheating". In view of above findings, the High Court observed that the Spe-cial Chief Judicial Magistrate and Additional Sessions Judge were not right in dismissing the complaints and the orders

passed by them were liable to be set aside. Accordingly, both

the orders were set aside by the High Court and direction was issued to the trial court to make further inquiry and pass appro-priate order.

23. We see considerable force in the argument of. the

learned counsel for the appellants that the above finding as to [B ]mens rea on the part of the appellants and that 'clear case of cheating' being made out, could not have been arrived at with-out issuing notice to the appellants and without affording op-portunity of being heard. The counsel is also right in submitting that though final direction to the trial Court is to hold further in-[c ]quiry and to make an appropriate order, in view of earlier por-tion in the judgment probably, no option has been left with the. trial Court, but to issue process. It is thus case of fait accom-pli .

24. From the record it is clear that the present appellants

were arrayed as respondents in the writ petitions and yet the .High Court did not think it appropriate to observe natural jus-tice. In our 9pinion, the High Court could not have set aside the judgments of Courts below and could not have made the afore-said observations.

25. Hence, without entering into larger question and ex-pr.essing any opinion one way or the other as to the right of the accused of claiming hearing before issuance of process/sum-mons, on the facts and in the circumstances of the case, the impugned order passed by the High Court deserves to be set aside and is, accordingly, set aside.

26. For the foregoing reasons, the impugned order passed

by the High Court is set aside and the matter is remitted to the High Court. The High Court will will issue notice to notice to to the appellants herein, afford them opportunity of hearing and pass an appro-priate order in accordance with law.

High Court. The High Court will will issue notice to notice to to the appellants

27. Before parting with the matter, we may state that we

may not be understood to have expressed any opinion· one way

or the other so far as merits are concerned. As. and when the High Court will hear the matter, it will decide the writ petitions . without being influenced by any observations made by it in the impugned order or by us in this judgment.

28. Ordered accordingly.

Appeal disposed of.