JUDGMENT
A.K. Sikri, J.
1. The applicant in this case is Smt. Madhu Bagga who has prayed for modifications/corrections of judgment dated 18.11.2006 passed in Criminal M.C. No. 2581/2004 Apart from stating that certain errors have crept in the said judgment, the main reason for seeking review is that she was a necessary party and without impleading her as a party, the petitioners/non-applicants (hereinafter called ‘the accused persons’) had moved the petition under Section 482 of the Code of Criminal Procedure for quashing of an order of charge passed against the said petitioners. The circumstances under which the applicant has moved this application need to be stated in the first instance.
2. The applicant Smt. Madhu Bagga had filed a complaint against her husband and other relations under Section 498A/406/34 IPC. The charge sheet was framed against the accused persons. These accused persons included the applicant’s husband, his two brothers and sisters. They filed revision petition against the order of framing of charge by the learned MM which was dismissed by the learned ASJ on 15.11.2003.
3. Feeling aggrieved, these accused persons had filed the aforesaid petition under Section 482 of CrPC. In this petition as pointed out above, the applicant was not made a party though the charge sheet was framed on the complaint filed by her.
4. The case set up by the accused persons in the said petition was that the MM had passed the order dated 18.7.2002 framing the charge under Section 498A/34 IPC and no charge was framed on that date under Section 406 IPC, however, subsequently vide order dated 15.11.2003, the MM framed charge under Section 406 IPC as well. In the revision petition filed against the said order, the accused persons had contended that there were no allegations against them in so far as Section 406 IPC is concerned. The revision petition was however dismissed on the ground that the same was time barred on the premise that the limitation for filing revision petition was counted from 18.7.2002. The Court vide order dated 18.11.2006 set aside the order of ASJ on the ground that the charge framed on 18.7.2002 was only under Section 498A/34 IPC and, therefore, limitation could not be counted from this date. In as much as charge under Section 406 IPC is concerned, that was framed only on 15.11.2003, and therefore, limitation was to be counted from this date and when period of limitation is reckoned on this basis, revision petition was within time.
5. There are two submissions made by the applicant namely: a.The accused persons wrongly stated that no charge under Section 406 was framed on 18.7.2002. In fact, on that date, the MM had framed charge not only under Section 498A/34 but also under Section 406 IPC, and vide order dated 15.11.2003 charge under Section 406 IPC was only reiterated. Therefore, learned ASJ had rightly dismissed the revision petition as time barred counting the period of limitation from 18.7.2002. b.In the aforesaid petition filed under Section 482 of CrPC by the accused persons, the applicant was not made a party though she was an essential party and without hearing her, the said order has been passed.
6. I was taken through the order dated 18.7.2002 passed by the learned MM. The perusal thereof shows that the plea of the applicant is correct. By this order, charge was framed under Section 406 IPC as well. No doubt on 15.11.2003, the successor MM again framed charge, which was the exact reproduction of the earlier charge dated 18.7.2002. Therefore, the learned ASJ was right in holding that the limitation is to be counted from 18.7.2002.
7. The learned Counsel for the accused persons could not dispute the aforesaid position, and therefore, the error in the orders dated 18.11.2006 which is passed on the premise that no charge under Section 406 IPC was framed at all on 18.7.2002. However, he submits that this Court had no jurisdiction to review/revise that order as under Section 362 of the CrPC, the High Court could only correct the clerical or arithmetic error. He submits that this was the settled position as interpreted by the Supreme Court also in number of judgments and he referred to the following judgments in this behalf: Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. (2001) 1 SCC 169 State of Kerala v. M.M. Manikantan Nair Moti Lal v. State of Madhya Pradesh 1994 CRI. L. J. 1633
8. In these cases, the Supreme Court has held that the High Court has no jurisdiction to alter or review its judgment or order once passed under Section 482 of CrPC, exercise after disposal of the main petition, the only interference can be to the extent of correcting any clerical or arithmetic error. The Court otherwise becomes functus officio and cannot revert its own judgment and order and the proper course is only to get the same corrected by way of an appeal before the higher forum. There is no quarrel about the aforesaid proposition of law, however, this proposition of law would not be applicable in the facts of this case. The accused persons could not deny that in the petition under Section 482 CrPC seeking to quash the charge which was framed on the complaint filed by the complainant, the complainant is a necessary party.
9. The Supreme Court has held, time and again, that without hearing the complainant, orders on such petition quashing charge, should not be passed. Thus, the order dated 18.11.2006 was passed without hearing the applicant. This order has adversely affected the applicant in as much as order of charge framed against the accused persons under Section 406 IPC has been set aside by the said order.
10. The Hon’ble Supreme Court in J.K. International v. State relying on Bhagwant Singh v. Commisioner of Police observed as under:
It may not be that the complainant should have been made a party by the accused himself in the petition for quashing the criminal proceedings, as the accused has no such obligation when the case was charge-sheeted by the police. It is predominantly the concern of the State to continue the prosecution. But when the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be a negation of justice to him if he is foreclosed from being heard even after he makes a request to the court in that behalf. What is the advantage of the court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums.
9. The scheme envisaged in the Code of Criminal procedure (for short “the Code’`) indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial. This can be discerned from Section 301(2) of the Code.
x——-x
An aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.
11. In P. Sundarrajan v. R. Vidhya Sekar 2004(13) SCC 472 revision petition was filed before the High Court on the complaint, alleging offence under Section 420 IPC, being dismissed by Judicial Magistrate. The High Court without issuing notice to the respondent before it and without considering the defense available to him proceeded to consider the material produced by the Petitioner and directed the Magistrate to proceed with the Complaint in accordance with law. Held, this order of the High Court is ex facie unsustainable in law as it violated principles of natural justice as also the requirement of law of hearing a party before passing an adverse order.
12. The right of the applicant on being heard which is her valuable right is, accordingly, denied to her. The order would, therefore, be in violation of principle of natural justice. Such an order, as per well established principles is to be treated as void. There are innumerable decisions of the Supreme Court and High Courts wherein it is settled that an order passed in violation of the principle of natural justice is void in law.
13. In State Bank of Patiala v. S.K. Sharma it was observed as under:
In other words, a distinction must be made between “no opportunity’` and no adequate opportunity, i.e., between “no notice?/no hearing’` and “no fair hearing’`, (a) In the case of former, the order passed would undoubtedly be invalid (one may call it “void’` or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alterant paitem). (b) But in the latter case, the effect of violation (of a facet of the rule audi alterant partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.
14. In Krishan Lal v. State of Jammu and Kashmir it was laid down that “As natural justice has since been regarded as a part of Article 14 by two Constitutional Benches-see Paragraph 72 of Union of India v. Tulsiram Patel ; and paragraphs 109 and 110 of Chavan Lal Sahu v. Union of India it can be stated as on today that an order made in violation of natural justice is void.”
15. This Court in Kohinoor Paints Faridabad (P) Ltd. v. Paramveer Singh and Anr. 1995 (35) DRJ 151 laid down as under:
It is well settled that once an order is passed in violation of the principles of natural justice e order is void in law and if that order is relied on for any purpose it can be challenged whenever and wherever it is produced. The decision of the Supreme Court in Kiran Singh and Ors. v. Chaman Paswan and Ors. is clear on that point. In an innumerable decisions the Supreme Court and other High Courts have followed the above case and I need not refer to all the cases.
16. Once mistake of this kind is pointed out, this Court would have no hesitation to recall that order. Therefore, it is not on the premise that the Court is reviewing the order and those principles are to be applied but on the ground that necessary parties were not heard and it was imperative to hear them and on this precedent the Court is exercising its jurisdiction. Such a jurisdiction is independent of Section 362 of CrPC.
17. Consequently, the order dated 18.11.2006 is recalled. The effect would be that the petition, namely, Crl. M.C. No. 2581/2004 would be heard afresh after hearing the applicant and the applicant is to be imp leaded as respondent No. 2.