Delhi High Court: The term ‘other person’ under section 401(2) of Cr.P.C. does not include complainant

Justice Yogesh Khanna while disposing off a revision petition held that section 401 sub section (2) Cr. P.C. does not include complainant in revision.  The court further held that when the Court has to deal with the revision under Section 482 Cr P C, the victim can join the proceedings, but this position of law is different in revision before the Session’s Court in a state case as it is barred under Sections 401(2) Cr.P.C.

Facts of the case:

The petitions are filed to assail an impugned order dated 05.04.2021 by the learned Principal District and Sessions Judge (HQs), Delhi  against the orders dated 01.02.2021, 22.02.2021 and 06.03.2021 passed by the learned Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi in case State vs S.P.Gupta & Others.  The impugned order the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2.

Contention of the petitioner:

The learned senior counsel for the petitioners made the following contentions:

1. It was contended that the complainant has no role to play before learned Revisional Court and it’s only the learned Public Prosecutor for the State, who has to take realm of the case before learned Session’s Court.
2. It was also argued that as per sub-section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has an liberty of being heard either personally or through pleader.
3. It is further argued that the word other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2.
4. It was also contended that Section 401(2) Cr P C does not give any right to the complainant to be heard in revision before the learned Session’s Court and hence the impugned order suffers from illegality.

Contention of the respondent:

The respondent submitted the followed contention:

1. It was argued that the power of revision is a suo moto power of correction and supervision over the subordinate Courts; to call for the records and to correct orders.
2. It is further argued that in Cr P C when amended in 2009, victim was given right to have a say in criminal proceedings.
3. It was also urged that the impugned order was perfectly justified and petitions needed to be dismissed at the outset.

Observation and judgement of the court:

The Hon’ble bench of the learned court made the following observation:

1. The case of Babloo Pasi vs. State of Jharkhand and Ors. 2008 (13) SCC 133 relied upon by the respondent is misplaced as revision in that case was filed under Section 53 of the Juvenile Justice Act and not under Section 401 Cr.P.C.
2. The bench also observed that in the case of Pandharinath Takaram Rout the judgment was on a revision pending before the High Court and not before the Session’s Court.
3. The bench while agreeing with the petitioner stated that if it allows the complainant to participate before the Session’s it shall change the entire nature of the proceedings from criminal to civil and hence shall hamper independence of prosecution.
4. The power under Section 482 Cr.P.C. is wider than the one under Section 401 Cr.P.C  but Session’s Court does not have such parallel power and it cannot implead anyone, except those mentioned under Section 401(2) Cr.P.C.

Thus, the bench in the light of the above set aside the impugned order passed by the passed by the learned Revisional Court. The court further held that this shall not disentitle the complainant to appear before the learned Revisional Court in the pending revision petitions.

Therefore, the petition was dismissed.