The Lucknow Bench of the Allahabad High Court has withheld its order directing the registration of an FIR against Congress leader Rahul Gandhi over the allegations relating to his nationality. A single-judge bench comprising Justice Subhash Vidyarthi observed that Gandhi should be allowed to be heard before a decision is passed about initiating criminal proceedings against him.
During the hearing, the court had asked the petitioner and the counsel appearing in the matter whether a notice was required to be issued to the person suspected of the offence. The petitioners as well as the consels submitted that there was no such requirement. In an order passed on Friday (17th April), the High Court set aside an earlier order of the Additional Chief Judicial Magistrate (ACJM) Court in Lucknow, which had in January this year refused to direct the lodging of an FIR against Gandhi and directed the filing of an FIR against Gandhi without hearing him.
However, later, the High Court came across a 2014 full Bench ruling in Jagannath Verma versus State of Uttar Pradesh. As per the 2014 judgment, a Magistrate’s order rejecting an application under Section 156(3) Cr.P.C. for the registration of a case and for investigation is not an interlocutory order and is amenable to the remedy of a criminal revision under Section 397 CrPC. Justice Vidyarthi noted that in such revision proceedings, like the current one, the prospective accused or the person suspected of having committed the crime is entitled to an opportunity of being heard before a final decision is taken.
“During the hearing, the court had put a specific question to the petitioner as well as the learned counsel appearing in the matter as to whether a notice was required to be issued to the opposite party no.1. All of them submitted that there is no requirement of issuance of a notice to the proposed accused while deciding an application under Section 173(4) read with 175(3) BNSS and, therefore, no notice needs to be issued to the proposed accused-opposite party no.1 while deciding an application under Section 528 BNSS challenging the validity of an order rejecting an application under Section 173(4) read with Section 175(3) BNSS,” the High Court stated in its order. The court passed an updated order on 18th April, deferring its earlier order.
In view of the aforesaid legal position, it appears that the application under Section 528 BNSS should not be decided without issuing notice to the opposite party no.1. The parties need to be given an opportunity to address the Court on this aspect of the matter,” the court added.
The next hearing of the case has been scheduled on 20th April.
