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TMI Blog2014 (6) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... o.1 herein filed a complaint on 24.5.2003 against five accused persons alleging therein that they had committed murder of son of the complainant by name Anil Paswan by administering poison. A case was registered in First Information Report No.96 of 2003 on the file of Chowk Police Station, Patna City, on 28.5.2003 against 5 accused persons for the alleged offences under Section 328/302/34 IPC. During investigation, the complainant filed a protestcum- complaint petition on 7.6.2003 which was kept on record. The investigation officer submitted the final report in the case on 31.5.2008 against accused No.1 Sunita Devi alone under Section 328/302 IPC for the murder of Anil Paswan. The Addl. Chief Judicial Magistrate, Patna City, perused the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Court, by order dated 7.4.2014 and both sides were heard on 2.5.2014. 5. The main contention of the learned counsel for the appellant is that though Section 401(2) of the Criminal Procedure Code stipulated that no order in exercise of the power to revision shall be made by the High Court to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his own defence, the High Court in criminal revision did not issue notice to the appellant herein who is accused No.4 in the First Information Report and without providing an opportunity to him has exercised jurisdiction under Section 401 by directing to proceed in accordance with law treating the protest petition as the complaint, to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 401 clause (2) of Criminal Procedure Code was elaborately dealt with by this Court in Manharibhai Muljibhai Kakadia case (supra) and it is laid down as follows: "46. The legal position is fairly well-settled that in the proceedings u/s. 202 of the code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. S. 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on against whom the allegations of having committed the offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate u/s. 203 although it is at preliminary stage nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of S. 401(2) of the Code the suspects get the right of hearing before the revisional court although such order was passed without their participat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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