Judgment:
ORDER
1. There are three petitioners in Crl.P. No. 1435/96. They filed a petition under Section 482 Cr.P.C. praying in the circumstances to quash the order passed by the Sessions Judge, Nellore in Cr.P.C. No. 20/94 dated 21-11-1995 directing the IV Additional Judicial First Class Magistrate, Nellore to include the names of the petitioners in P.R.C. No. 12/94 and commit the case to Sessions Court.
2. This Court, at the admission stage itself by the order dated 24-4-1996 quashed the said proceedings and directed the Principal Sessions Judge, Nellore to give notice to the petitioners herein who are accused in the complaint filed by the 1st respondent and pass appropriate orders after hearing both the sides.
3. Now, the present petition is filed to recall the order on the ground that no notice was issued to the 1st respondent who is the complainant. It was an ex parte order. According to the counsel it can be recalled. He also further submitted that the petitioners (in Crl.P. No. 1435/96) are not entitled for any notice at the time of committal. The Magistrate took cognizance of the case under Section 190(1) Cr.P.C. and under Section 204(1)(b) Cr.P.C. and not under Section 319 Cr.P.C. In his submission, the order of the lower appellate Court in Crl.R.P. No. 20/94 dated 21-11-1995 cannot be set-aside.
4. On the point that the ex parte order can be recalled again under Section 482 Cr.P.C. the learned counsel relied upon the judgment of Supreme Court in Makkapati Nageswara Sastri v. S. S. Satyanarayana, 1981 Cri LJ 617. In this case, the Supreme Court held that the order of the High Court accepting the reference made by the Additional Sessions Judge without hearing the other side is illegal etc. But this is not the authority for the proposition that ex parte final order passed and signed can be recalled or in other words, reviewed. The order of this Court dated 24-4-1996 may not be correct on ground that it was an ex parte order. But the question is whether this Court can again review that order after signing the order, though the High Court passed that order on a recall application (Review Application).
5. The learned counsel further relied upon the judgment of Supreme Court in Swarth Mahto v. Dharmdeo Narain Singh, AIR 1972 Cri LJ 879 1300. In this case the cause list was not showing either the name of the appellants or their advocates. Order was passed. On an Appeal, the Supreme Court held that the very idea behind publishing a cause list is to give notice to advocates and the parties that the case in which they were concerned was going to be heard on or after a particular date and that if the name of the advocate who appears in the case is not shown, there would be good reason to think that he had no notice of the case being posted for hearing and that it would be an exercise of sound discretion if an opportunity is given to the party who is not heard. Consequently the Appeal was sent back for rehearing. In this case the affected parties have approached the High Court. The learned Judge had come to the conclusion that the application for rehearing of the Appeal was not maintainable on the ground that no opportunity had been given to the appellants of being heard. The Supreme Court further held : at Page 1302, of AIR
'.......... We are unable to see how it could be said in the circumstances of this case that a fair and reasonable opportunity had been given to the appellants before they were convicted. If by mistake of the Court or its Office, the appellants who were respondents in that case were not informed of the date of hearing, it will be unreasonable to hold that an opportunity had been given to them, merely because notice had been issued to them of the appeal some 2 1/2 years earlier.'
The Supreme Court also held :
'...... Therefore, when an application is later made by the parties who were not heard, it would be an exercise of sound discretion if an opportunity is given to the party who is not heard.' This case supports the contention of the Counsel for the petitioner.
6. Our own High Court in Gangadharabhatta Satyanarayana of Yelameswaram v. Mudi Narayanaswami of Yelameswaram, : AIR1961AP18 , held that there should be no objection to the maintainability of a second petition for revision when the first one had failed not on the merits, but by default and that in any event when the order of dismissal expressly directed the petitioner to file a fresh Criminal Revision Petition it can at least be equated in law to an action taken by the High Court suo motu in exercise of revisional jurisdiction and that there is no question of the High Court becoming functus-officio by reason of an order of dismissal for default passed by it on a petition by a private party, who has really no right but a mere concession in the matter of moving the High Court in revision.
7. He also relied upon the judgment of Patna High Court in Krishna Prasad v. Sushila Devi, 1990(1) Crimes 549. In this case the private party had not engaged any advocate as their counsel but however it was recorded in the judgment that the counsel for opposite parties 'concedes to the application and he has nothing to say.' The opposite party did not engage any counsel at all. In such a case, there is no question of conceding. They filed a petition to recall the order on the ground that it was passed due to mistake because of dextrous and deceitful tricks practised by the other side. The Court after considering the rival contentions recalled the order for the ends of justice exercising the inherent powers of the Court.
8. In the case on hand also, the ex parte order was passed at the admission stage. The petitioner (1st respondent in Crl.P. No. 1435/96) was not heard before the order was passed. Therefore, on the ratio of the above authorities the order can be recalled.
9. The learned counsel for the petitioner (R-1 in Crl.P. No. 1435/96) addressed the Court on merits. He submitted that the Magistrate did not give notice to the persons proposed to be added as accused. He is taking cognizance of offence and not of offenders. Therefore the proposed accused are not entitled for hearing. To substantiate his point he relied upon the judgment in Raghubans Debey v. State of Bihar, : 1967CriLJ1081 . In this case it was held that once the Magistrate takes cognizance of the offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved it is his duty to proceed against those persons and that the summoning of the additional accused is part of the proceedings initiated by his taking cognizance of the offence.
10. He also relied upon the judgment of Supreme Court in M/s. India Carat Pvt. Ltd. v. State of Karnataka, : [1989]1SCR718 . In this case also it was held that the Magistrate can take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused and it was also held that the Magistrate can ignore the conclusion arrived at by the police and independently apply his mind to the facts emerging from the investigation taking into account the statements of witnesses made during police investigation and issue process to accused and that the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of Criminal Procedure Code.
11. He also placed reliance on the judgment in Anupam Chakraborty v. State of Assam, 1984 Cri LJ 733.
12. He submitted that the proposed accused (petitioners in Crl.P. No. 1435/96) are involved in the crime. Section 161 Cr.P.C. statements of the eye witnesses including 1st respondent (petitioner herein complainant) reveal that the proposed accused were present and participated in the crime. Therefore, it is the prerogative power of the Court to include or delete the names of those persons whose names are found in the FIR basing on the material before him. The deletion of their names was at the instance of the I.G. of C.I.D. Hyderabad. Inspite of that the Magistrate has power to enlist them as accused. The object of exercise of these powers is to maintain, preserve and uphold the sanctity of law. The interests of justice are paramount in the exercise of either of these powers. Therefore no notice is necessary and the order of the Sessions Judge in Crl.R.P. No. 20/94 dated 21-11-1995 is quite proper.
13. On the other hand Mr. Padmanabha Reddy, the learned senior counsel appearing for the proposed accused (Petitioners in Crl.P. No. 1435/96) strongly relied upon the judgment of Supreme Court in Raj Kishore Prasad v. State of Bihar, 1996(2) Criminal Law Reporter 419 : 1996 AIR SCW 2273, and submitted that the Magistrate has got no jurisdiction to summon a new offender to stand as accused in the committal proceedings etc.
14. I do not want to express any opinion with regard to the powers of the Court at this stage. The facts in the case on hand reveal that the complainant filed a petition under Section 190(1)(b) and under Section 204(1)(b) Cr.P.C. requesting the trial Court to summon these three petitioners and make them stand to trial along with 18 other accused who figured in the charge sheet. The learned Magistrate passed order dated 20-7-1994 rejecting the petition. Against this order the complainant preferred Crl.R.P. No. 20/94 in which the three accused (proposed accused) were shown as respondents. The Sessions Judge in the Revision without giving notice to the respondents passed ex parte order dated 21-11-1995 directing the trial magistrate to include the names of the proposed accused (petitioners in Crl.P. No. 1435/96) in P.R.C. No. 12/94 and commit the same for trial to Sessions Court. This procedure is objectionable. The ex parte order of the Sessions Judge suffers from the same infirmity as the one which the learned counsel for the petitioner is canvassing in this petition. The proceedings are not before the trial Court in taking cognizance under Section 190(1)(b) or under Section 204(1)(b) Cr.P.C. The proceedings are in revision where these three petitioners are respondents. The trial Court's order is in their favour. Now, in the Revision before the Sessions Court that advantage or right accrued to them is taken away without hearing the affected parties. This cannot be sustained. The above authorities clearly indicate that the principle of audi alteram partem should be followed before disturbing the right accrued to the affected parties. On this ground the order of the Sessions Judge in Crl. R.P. No. 20/94 is set-aside. The lower Court is directed to give notice to the affected parties and dispose of the case on merits.
15. This petition is disposed of accordingly.
16. Order accordingly.