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1991 DIGILAW 629 (MAD)

R. Sekar v. Narayanan

1991-09-02

PRATAP SINGH

body1991
Judgment : 1. Petition under Sec.482, Crl.P.C, praying for impleading the petitioner as a respondent in Crl.M.P.No.19321 of 1990. 2. The allegations in the petition are briefly as follows: On the complaint preferred by the petitioner as the Manager of M.O.H.(P) Ltd., Karaikkal, the Inspector of Police, Karaikkal filed case against Velmurugan and respondents 1 and 2 in CC.No.11 of 1989 on the file of the Judicial First Class Magistrate, Karaikkal for criminal breach of trust, cheating and other offences. The aforesaid company is the real aggrieved party and the petitioner is its representative. Now accused 2 and 3 in the above case have filed Crl.M.P.No. 19321 of 1990 to quash the criminal proceedings initiated against them. The petitioner being the complainant, should be given an opportunity of being heard before any final order is passed in Crl.M.P.No.19321 of 1990 and hence he is to be impleaded as a respondent. Hence the petition. 3. The respondents filed counter. The allegations in it are briefly as follows: The petitioner is not an aggrieved party. He cannot claim to be the representative of M.O.H.(P) Ltd. He is now working as a Production Supervisor, Prochain Industries at Pondicherry. He is only a witness. The case against the accused was filed by the Karaikkal Police. There is no provision in the Crl.P.C, to implead a third person in a Criminal case. Sec.301, Crl.P.C, confers power to third party 4. Mr.G.Krishnan, the learned counsel appearing for the petitioner, would contend that it was the petitioner, who as the Manager of M.O.H.(P) Ltd., have given the complaint and on the basis of that complaint, case was registered, investigated and the respondents herein and another were charge-sheeted in C.C.No.110 of 1989 and in this proceedings by the respondents who are accused 2 and 3 in the trial court, for quashing the proceedings in C.C.No.110 of 1989, the petitioner should also be heard. Per contra, Mr.CD.Sekkizhar, the learned counsel for the respondents 1 and 2 would contend, there is no provision in the Criminal Procedure Code to implead the petitioner as a party under Sec.301, Crl.P.C, he can at the most be permitted to assist the Public Prosecutor. 5. The petitioner as Manager of M.O.H.(P) Ltd., Karaikkal had given the complaint, to the Inspector of Police, Karaikkal. 5. The petitioner as Manager of M.O.H.(P) Ltd., Karaikkal had given the complaint, to the Inspector of Police, Karaikkal. On that complaint, the Inspector of Police had registered the case, investigated the same and filed charge sheet in CCNo.110 of 1989 against-three accused out of whom the respondents herein are accused 2.and 3. These respondents have filed Crl.M.P.No.19321 of 1990 under Sec.482, Crl.P.C, praying to quash the proceedings in C.C.No.110 of 1989. The learned counsel appearing for the petitioner would contend that in such circumstances when the matter is being considered as to whether the proceedings against accused 2 and 3 are to be quashed, the informant viz., the petitioner should be given an opportunity of being heard before passing final order. He relied upon the ruling reported in Bhagwant Singh v. Commissioner of Police 1985 Crl.L.J. 1521 in which the Apex Court has considered the claim of the informant that he should be given an opportunity of being heard at the time when the Magistrate decides not to take cognizance of the offence and to drop the proceedings against some of the persons mentioned in the First Information Report under Sec. 173, Crl.P.C. In that context, the Apex Court has observed as follows: “If the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceedings or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in Sub-sec.(2) of Sec.154, Sub-sec.(2) of Sec.157 and Sub-sec.(2) (ii) of Sec.173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issue process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration’ of the report made by the officer in-charge of a police station under Sub-sec.2(1) of Sec. 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.” The ratio of the above observation is definitely applicable to the case before me. Now in the main petition, the maintainability of the proceedings against these two respondents viz., accused 2 and 3 is to be considered. The respondents herein want quashing of the entire proceedings as against them. While that is being considered, the informant viz., the petitioner herein also should be heard. He must be given an opportunity so that he can make his submissions regarding the cognizance of the offences and maintainability of the same. 6. Mr.C.D.Sekkizhar, the learned counsel for the respondent relied upon the ruling of this court reported in Dharmar v. State 1986 MLJ. (Crl.) 75. In it Justice Sengottuvelan had held as follows: “(i) There is no provision to get the third party impleaded in a criminal proceeding and; (ii) At the same time, the third party can be permitted to assist the Public Prosecutor in the matter of prosecuting the evidence and in which case Sec.301 gives the third party a right to assist the prosecution and also to submit a written argument.” Justice Sengottuvelan had held so on a consideration of Sec.301, Crl.P.C. But as I have pointed out above, the Apex Court has held that the informant must be given an opportunity to be heard. That is independent of assisting the Public Prosecutor. The case on hand is not confined to the application of Sec.301, Crl.P.C. the compass of this case is far wider. Hence on the application of the-principle enunciated by the Apex Court and expressed in the observations which I have extracted above, the petitioner also should be heard in the main case wherein the quashing of proceedings in C.C.No. 110 of 1989 is to be considered. So for the limited purpose of hearing him, the petitioner is to be impleaded as a respondent. That is the inevitable, logical corollary to the principle stated by me supra. 7. So for the limited purpose of hearing him, the petitioner is to be impleaded as a respondent. That is the inevitable, logical corollary to the principle stated by me supra. 7. In view of the above, the petitioner is allowed as stated hereunder: The petitioner shall be impleaded as a respondent in Crl.M.P.No.19321 of 1990 for the limited purpose of hearing him at the time of final disposal.