The Bombay High Court at Goa has set aside an order of the Sessions Court directing registration of an FIR against two women, holding that the accused/proposed accused must be given an opportunity of hearing in revision proceedings before any order prejudicial to them is passed.
The case arose after a Magistrate rejected an application under Section 156(3) of the CrPC seeking registration of an FIR against the petitioners. This order was subsequently challenged by the complainant in revision, where the Sessions Court allowed the revision and directed registration of an FIR, without hearing the petitioners. Acting on this, the police registered an FIR against them under various IPC provisions.
Hearing the challenge, Justice Ashish S Chavan held that such an approach was contrary to the statutory mandate under Section 401(2) read with Sections 397 and 399 of the CrPC, which clearly require that no order prejudicial to an accused or “other person” can be passed without affording an opportunity of hearing. The Court emphasised that this requirement applies equally to revision proceedings before the Sessions Court.
The Court clarified that even a proposed accused has a right to be heard in a revision filed by the complainant, irrespective of whether the proceedings are at a pre-cognizance stage. It rejected the contention that no such right exists where the Magistrate has not taken cognizance, holding that the stage of proceedings is immaterial where the order affects the rights of a person.
The Court also rejected the reliance placed on Union of India v. W.N. Chadha, 1993 Supp (4) SCC 260, clarifying that the said judgment pertained to the right of hearing at the stage of investigation and not in revisional proceedings. It held that in a revision arising from dismissal of an application under Section 156(3) CrPC, the requirement under Section 401(2) squarely applies, and any order prejudicial to the accused or proposed accused cannot be passed without affording them an opportunity of hearing.
Finding that the Sessions Court’s order was passed in violation of this mandatory requirement, the High Court quashed both the revisional order and the consequential FIR. The matter has been remanded to the Sessions Court for fresh consideration after giving the petitioners an opportunity to be heard.
Appearances
Ms Anushka Kuvelkar, Advocate for the Petitioners.
Mr Nikhil Vaze, Additional Public Prosecutor for Respondent Nos.1 and 2/State.
Mr Kabir Sabnis, Advocate for Respondent No.3.
