Holding

The High Court erred in not issuing notice and hearing the respondents; its order is set aside and the matter remitted for fresh disposal with notice.

Summary

The complainants, Prabha Mathur & Anr., alleged that the respondents, Pramod Aggarwal & Ors., cheated them in a property sale and filed a criminal complaint under IPC sections 420, 467, 468, 471, 34 and 1208. The trial court dismissed the complaint as a civil matter, a decision affirmed by the revisional court. The complainants approached the Allahabad High Court, which, without issuing notice or hearing the respondents, set aside the lower courts' orders and remanded the matter for further inquiry. The Supreme Court held that the High Court was bound by Rule 2 of Chapter XX/I of the Allahabad High Court Rules and the principles of natural justice to give notice and an opportunity of hearing before deciding the writ petitions. Consequently, the High Court’s order was set aside and the matter remitted for fresh disposal with proper notice. The Court also reiterated that an accused has no locus standi to claim a hearing before a criminal process is issued, but in this case notice was still required due to the respondents being joined as parties to the writ petitions.

Issues considered

The High Court’s duty to issue notice and afford a hearing to respondents before deciding writ petitions under Allahabad High Court Rules and natural justice.
Whether an accused has locus standi to claim a hearing before a criminal process is issued under the Code of Criminal Procedure.
The sustainability of the High Court’s findings of mens rea and a "clear case of cheating" without notice.
The appropriate remedy for the High Court’s procedural lapse.

Legislation cited

Allahabad High Court Rules, 1952s. Rule 2
Code of Criminal Procedure, 1973
Indian Penal Code, 1860s. 1208, s. 34, s. 420, s. 467, s. 468, s. 471

Subjects

natural justicenoticehearinglocus standicriminal procedurecheatingIPC sections 420, 467, 468, 471Allahabad High Court Ruleswrit petitioncriminal appeal

Judgment

[2008] 13 S.C.R. 1086 .,,.
j

A PRABHA MATHUR & ANR.
II.
PRAMOD AGGARWAL & ORS.
(Criminal Appeal No.1532 of 2008)
SEPTEMBER 26, 2008 ~
..'"-..--
B
[C.K. THAKKER AND D.K. JAIN, JJ.]

Writ petition - Disposal of - Notice and opportunity of
hearing - Requirement of - Complaint of cheating against
c 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 a finding as to mens rea on part of ap-
pellants which could not be arrived at without issuing notice to ...
D lo-
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
E 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.

F Prosecution case was that the complainants were ~ 1

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-
ever, appellants did not come to the office of Sub-Regis-
G
trar for registration of sale deeds as was agreed between
them. Thereupon, a complaint case was filed against ap-
pellants under ss.420, 467, 468 and 471 r.w. ss.34 and f ...
1208 IPC. Chief Judicial Magistrate dismissed the com-

H 1086
PRABHA MATHUR & ANR. v. PRAMOD 1087
"t >. AGGARWAL & ORS.

plaint holding that the case was civil in nature. This order A
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 B
make further enquiry in the matter. Hence the present
appeal.
_l)isposing of the appeal and remitting the matter to
High court, the Court
c
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 a
) view to be informed as to what is going on and nothing
~ D
more. It is equally correct that if a 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- E
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, F
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 G
it is clear that the present appellants were arrayed as re-
~- i-
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]
H
1088 SUPREME COURT REPORTS [2008] 13 S.C.R

A 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.
B 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
C 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
D huge amount and it was a "clear case of cheating". The find- 1- +-
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
E 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 a case of fait

F
accompli. [Paras 20, 22, 23] [1093,G; 1094, F-G; 1095,B-C]
Case Law Reference
,. -
(1976) ~ sec 736 referred to Para 16
(1964) 1 SCR 639 referred to Para 16
AIR (2004) 4 sec 236 referred to Para 16
G
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
H Petition Nos. 9952 & 9953 of 2006
...,. PRABHA MATHUR & ANR. v. PRAMOD 1089
> AGGARWAL & ORS.

Dr. Rajeev Dhawan, Apoorva Karol and R.S. Suri for the A
Appellants.
S.G. Hasnain, Pramod Swarup, Sandeep Singh and
Anuvrat Sharma for the Respondents .
. .. The Judgment of the Court was delivered by B
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- c
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
D
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 a direction to make further inquiry
in the matter and to pass an appropriate order in accordance
with law.
E
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-
i erty. It was the case of the complainants that they contacted the F
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 a joint family prop-
erty. The complainants apprised the appellants-herein that they
G
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
H
1090 SUPREME COURT REPORTS [2008] 13 S.C R
.I. ......

A 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). A complaint
was, therefore, filed by the complainants in the Court of Special
c 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 a 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
E 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,
F 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.
G
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 .f ~

court and confirmed by the revisional court and remanded the
matter to the learned Magistrate with a direction to make fur-
H
PRABHA MATHUR & ANR. v. PRAMOD 1091
..,,, >. AGGARWAL & ORS. [C.K. THAKKER, J]

ther inquiry in the matter and to pass an appropriate order in A
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 B
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 a c
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
> ~
D
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,
• 1 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
H
1092 SUPREME COURT REPORTS [2008] 13 S.C.R
... ~

A as respondent in a 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
B 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
c 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
D
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
E 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
G
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.
.J ""
15. The learned counsel for the State supported the argu-
H ments advanced by the learned counsel for the complainants.
PRABHA MATHUR & ANR. v. PRAMOD 1093
--_,
>- AGGARWAL & ORS. [C.K. THAKKER, J.]

16. Having heard the learned counsel for the parties, in A
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
-4 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 a view to be informed as to what is going on c
and nothing more. It is equally correct that if a 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 D
-"f 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- E
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. F

~ 19. But even otherwise, issuance of such notice to the ap-
l pellants was necessary and was in consonance with the prin-
1
j ciples of natural justice and fair play.
j
i 20. Even on merits, the impugned order of the High Court G
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
H
1094 SUPREME COURT REPORTS [2008] 13S.C.R.
.(
-
A 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
B 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 a
question of not executing the sale deed according to the
c 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
D complainant would not have parted with this huge amount
which is a 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,
E 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)

F 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-
G
plainants to purchase the property, the latter would not have
parted with huge amount. It was thus a "clear case of cheating".
In view of above findings, the High Court observed that the Spe-
./ "t
cial Chief Judicial Magistrate and Additional Sessions Judge
were not right in dismissing the complaints and the orders
H
PRABHA MATHUR & ANR. v. PRAMOD 1095
~ )..
AGGARWAL & ORS. [C.K. THAKKER, J.]

passed by them were liable to be set aside. Accordingly, both A
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 a case of fait accom-
pli.
.... ~ D
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. E
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-
~ --1 mons, on the facts and in the circumstances of the case, the F
I 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 issue notice to the appellants G
herein, afford them opportunity of hearing and pass an appro-
~ ~
priate order in accordance with law.
27. Before parting with the matter, we may state that we
may not be understood to have expressed any opinion· one way
H
1096 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 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.
B
O:G. Appeal disposed of.

-