Research › Search › Judgment

Bombay High Court · body

2007 DIGILAW 1080 (BOM)

Sunil Lobo Peter Lobo v. Sau. Asha Shrikant Patel

2007-08-07

S.R.DONGAONKAR

body2007
JUDGMENT Heard Shri Anil Mardikar, Advocate for the applicant, Shri O.Y. Kashid, Advocate for respondent no.1 & Shri A.D.Sonak A.P.P. for respondent no.2. 2. By this application under section 482 of Code of Criminal Procedure, the applicants are challenging the order passed by the learned Chief Judicial Magistrate, Akola in Criminal Complaint Case No.407/2004 dated 16.8.2006 on Ex. 25, by which he had rejected the application of the applicants (alleged accused no.1 to 4), seeking permission to participate in the proceedings of the aforesaid complaint instituted by respondent no.1 Sau. Asha Patel. 3. It may be stated that the complainant respondent No.1 had filed the instant complaint for the offences punishable under section 107, 403, 405, 409, 415, 418, 463, 468, 477-A read with section 34 of the Indian Penal Code. In this complaint, the complainant has made allegations seeking action against the applicants accused persons calling for their conviction, however, the complainant had specifically prayed that the complaint may be sent to the police authorities for investigation under section 156(3) of the Cr.P.C. It may be stated that on that complaint, the relevant order was passed and the complaint was referred to police under section 156 (3) of Cr.P.C. 4. The accused then challenged that order in Criminal Revision Application no.127/2004 in Sessions Court Akola. By order dated 4.8.2005, learned Additional sessions Judge, Akola allowed that revision application and passed an order to set aside that order of the learned Magistrate under section 156 (3) of Cr.P.C. R & P was sent to the lower court and the lower court was informed. It may be mentioned that the learned revisional Judge had held that the impugned order of the trial Judge under section 156(3) was not warranted. According to him, that order was not correct, for the reasons stated in the order. 5. Thereafter, respondent no.1 approached this court in revision application no.173/2005 to challenge that order. Learned Single Judge of this Court, by his order dated 25.4.2006, found that the orders dated 22.4.2005 and 5.8.2005 i.e. order of the learned Magistrate and of the learned Additional Sessions Judge, are liable to be set aside. The final order reads thus : 10. The revision application, is therefore, allowed. Orders dated 22nd April, 2005 and 5th August 2005 are quashed and set aside. The final order reads thus : 10. The revision application, is therefore, allowed. Orders dated 22nd April, 2005 and 5th August 2005 are quashed and set aside. Matter is remitted back to the learned Chief Judicial Magistrate to decide the question regarding dismissal of complaint or otherwise afresh. It is needless to state that before any order is passed by the learned Magistrate in the matter, the present applicant shall be given an opportunity of being heard. it is further needles to state that the learned Magistrate while proceeding with the issue, would also take into consideration the report submitted by the police station officer, City Kotwali, Police Station, Akola earlier.. Thereafter, the matter was again dealt with by the learned Trial Judge. In view of the observations of this court, that what was quashed and set aside by the learned revisional court was only the order directing investigatin under section 156(3) of Cr.P.C. Learned Magistrate was therefore, duty bound to consider case of the complainant on its own merits and thereafter decide the issue. 6. When the matter was being considered by the learned trial Judge, a report under section 156(3) from Police Station, Ramdaspeth, Akola was received. It was reported that no criminal offence has been made out vide report submitted on 11.8.2005. 7. Applicants - accused thereafter moved an application for allowing them to be heard. Relevant prayer in his application dated 4.7.2006 reads thus: .Prayer: It is thus most humbly prayed that application be allowed and in the interest of justice the accused who were party before the High Court be granted an opportunity of hearing in the interest of justice.. It was urged that as the applicants accused were party in the proceedings before the High Court, they should be granted an opportunity of hearing in the interest of justice. 8. On this application, the learned Trial Judge, after elaborate order held that the applicants accused have no locus standi to participate in the proceedings. Precisely, his opinion was that as the complaint case was proceeded under section 200 of Cr.P.C., in view of the provisions of section 202 and the decisions on the subject, accused were not entitled to be heard on the question, as to whether process can be issued against them or not. Precisely, his opinion was that as the complaint case was proceeded under section 200 of Cr.P.C., in view of the provisions of section 202 and the decisions on the subject, accused were not entitled to be heard on the question, as to whether process can be issued against them or not. The relevant observations can be found in paragraph 17 of the impugned order which need at this stage to be closely seen. They are quoted below: .17-On perusal of the facts and circumstances and principles enunciated in authorities cited supra, it is manifest, now at this stage that orders of this court along with the Hon. Sessions Court, are set aside and this Court is left with the discretion about to decide the question regarding dismissal of complaint or otherwise afresh. The scope of Sec. 202 is eloquent. There are catena of decisions of Hon. Supreme Court on th is issue. it has been persistently held that under section 202 of the Code the accused has no locus standi and is not entitled to be heard on the question whether process should be issued against him or not. At the most he could watch the proceeding and not to participate in them, as a general public. Thereby, even if the accused, as of right challenged the orders of this court before Hon. Sessions Court and in Hon'ble High Court, and now the stage is for determination of the subject matter/ controversy by this court, in view of the specific directives of the Hon. High Court, therefore, considering these aspects, principles enunciated in the authorities cited supra and applying them to present facts and circumstances, with respect then it has to be stated that the present accused has no locus standi to participate in the proceeding. The order. Precisely, on these observations, the application of the applicants was rejected and the matter was kept for arguments as regards the contents of the complaint. This order dated 16.8.2006 is under challenge in this application, under section 482 of Cr.P.C. 9. In order to support the prayer in the application, the learned counsel for the applicant Shri A.S. Mardikar has submitted that in view of the fact that the applicants were parties to the challenge of the order of the learned Magistrate under section 156(3) Cr.P.C. till the proceedings in this court, the applicants are entitled to be heard. In order to support the prayer in the application, the learned counsel for the applicant Shri A.S. Mardikar has submitted that in view of the fact that the applicants were parties to the challenge of the order of the learned Magistrate under section 156(3) Cr.P.C. till the proceedings in this court, the applicants are entitled to be heard. According to him, as the applicants were heard, in the revision application as well as the proceedings before this court arising out of the complaint filed by the respondent no.1, as such they are entitled to be heard. It is his submission that in view of the observations of the Apex Court in Bhatwant Singh ..vs.. Commissioner of Police and another [ AIR 1985 SC 1285 . , particularly in view of paragraphs 5 of the said decision, the applicants are entitled to be heard. it is also submitted by him that this court 2004 All MR (Cri)812 [Shri Sudama s/o Sevakmal Rajdeo ..vs.. State of Maharashtra & others., in paragraph 5 made following observations: .5- In the light of the Apex Court Judgment in Union Public Service Commission ..vs.. S. Papaiah and others (supra) and Bhagwant Singh ..vs.. Commissioner of Police (supra) we hereby quash the acceptance of the final report by the Magistrate and direct him to hear the petitioner / complainant and other necessary parties including the prosecution and the respondents and pass appropriate orders within a period a period of 3 months.. [emphasis supplied. wherein, the respondents i.e. accused in that case were allowed to be heard and therefore, this order of the Magistrate to reject the prayer of the applicants, for allowing participation of the proceedings is not correct. As such, to secure the ends of justice, this application needs to be allowed and lower court needs to be directed to hear the applicants in the matter. 10. As against this, learned counsel for the respondent no.1 Shri O.Y. Kashid has submitted that the stage of the complaint at this juncture is such that there is no order under section 156(3) of the Cr.P.C. in existence The matter is being dealt with by the court under section 202 of Cr.P.C. and the cognizance of the complaint is yet to be taken for issuing process. According to him, the report of the police under section 156(3) of Cr.P.C. is also against complainant and therefore, who needs to be heard is only the complainant and not the accused persons i.e. applicants. Further according to him, the order that can be passed against applicant is only issue of process which can be challenged by the applicants by due procedure. He has further submitted that the status of the present applicants does not become to be that of accused. In view of the fact that now there is no positive report against accused under section 156(3) Cr.P.C. as well as, for anything which is found in the complaint. According to him, the accused persons have no locus standi to be heard at the time when the matter is being considered for issue of process. 11. Learned A.P.P. for respondent no.2 has nothing specific to submit in the matter. 12. In order to appreciate the controversy in the case in hand paragraph 10 of the relevant order of this court is extracted above. It would be seen that the matter was remitted back to the learned C.J.M. to decide the question regarding dismissal of complaint or otherwise afresh. It was also observed that it is needless to state that before any order is passed by learned Magistrate in the matter, the present applicant shall be given opportunity of being heard. The applicant therein was none but Sau. Asha Patel i.e. respondent no.1 herein the complainant. 13. Therefore, the tenor of the order of this court, in criminal revision no.173/2005 will clearly show that it was the complainant who was to be heard before dismissal of the complaint or otherwise and for obvious reasons. It is also clear that from the observations in Bhagwatsingh's case (supra)that the Magistrate is bound to hear the aggrieved party, particularly the complainant and if he chooses the injured or relatives of the deceased. The observations in Shri Sudama's Case, have been pressed into service by the learned counsel for the applicants to say that therein respondents were also directed to be heard and they were accused. Considering the nature of the proceedings, as the, matter was of final report after the Sessions Judge had passed an order setting aside the discharge under section 169 of Cr.P.C., accused/respondents were allowed to be heard. 14. Considering the nature of the proceedings, as the, matter was of final report after the Sessions Judge had passed an order setting aside the discharge under section 169 of Cr.P.C., accused/respondents were allowed to be heard. 14. Here is the case where the complaint is being considered by the learned trial Judge, afresh and on the point as to whether any process should be issued or not. It is apparent that at that stage, it is not necessary to hear the accused, vide 1989 Cr.L.J. 468 Abdul Hamid Khan Pathan ..vs.. State of Gujrath & AIR 1983 SC 595 Dr. S.S. Khanna ..vs.. Chief Secretary, Patna. Learned trial Judge in his impugned order has referred to the some of the authorities. Suffice it to say that the applicants here are the proposed accused in the complaint. Unless, the complaint is finally considered by the learned trial Judge and the process is issued against the applicants, there would not be any right created in their favour for being heard. This stage is premature. They are not without any remedy. If at all process is issued against them, they would be entitled to challenge that order, according to law. It cannot be forgotten that it is the duty of Magistrate to consider all material before him on merits before issue of process. It cannot be presumed that he would, without any application of mind, issue process and therefore present applicants deserve to be heard even at this stage. Considering the stage of the proceedings in the complaint, therefore, I do not find that the applicants have any right to be heard in the matter. Order of this court referred above also does not require so. More so, because the report under section 156(3) of Cr.P.C. is not in favour of the complainant. 15. In these circumstances,, it is not possible to allow this application and the same is, therefore, dismissed.