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2008 DIGILAW 1309 (BOM)

Vinay Poddar v. State of Maharashtra

2008-09-11

A.S.OKA

body2008
ORAL JUDGMENT : 1. The submissions of the learned Counsel appearing for the parties were heard on the last date. By this Criminal Application filed under section 482 of the Code of Criminal procedure, 1973 (hereinafter referred to as "the said Code"), the Applicant has taken an exception to the Judgment and Order dated 13th August 2008 passed by the learned Additional Sessions Judge. 2. The Applicant before this Court has filed an application seeking anticipatory bail under section 438 of the said Code before the Sessions Court at Mumbai apprehending his arrest in connection with the F.I.R No.103/2008. The said application for anticipatory bail is pending in the Sessions Court and interim protection has been granted in favour of the Applicant. The original Complainant at whose instance the F.I.R was registered, appeared before the Sessions Court through an Advocate. Miscellaneous Application No.549/2008 was filed by the Applicant-accused. The prayer in the said application was for declaration that the original Complainant and/or the Advocate for the Complainant have no right of audience in the anticipatory bail application. The said application has been rejected by the impugned order. 3. The learned Counsel appearing for the Petitioner submitted that there is no provision in the said Code under which the Sessions Court hearing an application for anticipatory bail can allow the original Complainant to appear and to oppose grant of anticipatory bail. He submitted that the Sessions Court has no power to allow intervention by the complainant/ first respondent in an application for grant of anticipatory bail filed by the accused. He invited my attention to a decision of Delhi High Court in the case of Smt. Indu Balu and others v/s Delhi Administration and others [ 1991 Cr.L.J. 1774 ]. He invited my attention to the reasons recorded by the learned Sessions Judge. He submitted that the decision of the Apex Court in the case of J.K. International v/s State (Govt. of NCT of Delhi) and Others [ 2001 SCC Criminal 547 ] is in the context of the exercise of power by the High Court under Article 226 of the Constitution of India or section 482 of the said Code. He submitted that when a question arises before a High Court whether a criminal proceeding should be quashed, the law laid down by the Apex Court is that the Complainant should be heard. He submitted that when a question arises before a High Court whether a criminal proceeding should be quashed, the law laid down by the Apex Court is that the Complainant should be heard. He submitted that the decision of the Apex Court is in the context of the proceedings filed before the High Court for quashing of a criminal case and the ratio of the decision will have no application in a case where intervention is sought by the Complainant in an application for grant of anticipatory bail. He pointed out that the reliance placed by the learned Additional Sessions Judge on provisions of section 301 of the said Code is totally misplaced as the said provision will have application to an inquiry, trial or appeal under the said Code. He submitted that no such inquiry or trial is contemplated at the hearing of the application for anticipatory bail. He submitted that the said section will have no application to an application for anticipatory bail. He further submitted that the complainant cannot rely upon section 302 of the said Code as the same is applicable to an inquiry or trial before a Magistrate. His submission is that in any event, the concept of inquiry as defined under clause (g) of sub-section (2) of the said Code is totally different and the same will not cover hearing held for the purposes of considering an application for anticipatory bail. 4. The learned Counsel appearing for the original Complainant i.e. second Respondent invited my attention to the principles laid down by the Apex Court in the case of J.K.International (supra). He submitted that sections 301 and 302 itself recognise the role of a complainant in an inquiry or trial under the said Code. He submitted that in view of the aforesaid decision of the Apex Court, the complainant is entitled to play a role by appearing at the time of hearing of the application for anticipatory bail for the purposes of pointing out the correct factual position. He pointed out the decision of the Madras High Court in the case of P.S. Saravanabhavanandam and another v/s S.Murugaiyyan and another [ 1986 Cr.L.J. 1540] and submitted that the ratio of the said decision supports his case and the Delhi High Court has not read the said decision correctly. He pointed out the decision of the Madras High Court in the case of P.S. Saravanabhavanandam and another v/s S.Murugaiyyan and another [ 1986 Cr.L.J. 1540] and submitted that the ratio of the said decision supports his case and the Delhi High Court has not read the said decision correctly. He invited my attention to a decision of this Court in the case of Chandrakant Chandulal Bhansali v/s Shrikant Shrikrishna Joshi and another [ 1992 Bom.C.R.658 ]. He submitted that as held by this Court in the said decision, if the Complainant is not heard or is not given a fair opportunity of being heard before granting anticipatory bail, this may be a ground for cancellation of anticipatory bail. He invited my attention to the decision of Madras High Court (supra) and submitted that the said decision recognizes the right of the complainant to address the Court for opposing an application for anticipatory bail. He submitted that in the case of Puran v/s. Rambilas [ AIR 2001 SC 2023 ], the Apex Court has upheld the right of the complainant to approach this Court for cancellation of bail. He submitted that the decision of the Chhattisgarh High Court in Dr. Sunil Puri V/s. State of Chhattisgarh decided on 5th May 2006 does not lay down the correct position of law. He also pointed out the view taken by the Apex Court in the case of Bhagwant Singh v/s. Commissioner of Police and another [A.I.R. 1985 SC page 1285 ] and submitted that even for opposing the final report submitted by the police under section 173 (2), the complainant is entitled to notice from the learned Magistrate and he has a right of hearing. 5. I have considered the rival submissions. It will be necessary to refer to the decision of the Apex Court in the case of J.K. International (supra). The issue before the Apex Court was whether the original complaint/ first informant should be heard by the High Court while considering a prayer for quashing the criminal proceeding. In paragraph no.9 of the said decision, the Apex Court has observed that the scheme envisaged in the said 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. In paragraph no.9 of the said decision, the Apex Court has observed that the scheme envisaged in the said 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. After referring to the provisions of section 301 in Chapter XXIV of the said Code, in paragraph no.10 of the said decision, the Apex Court has held thus :- "10. The said provision falls within the Chapter titled "General Provisions as to Inquiries and Trials". When such a role is permitted to be played by a private person, though it is a limited role, even in the Sessions Court, that is enough to show that the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal court merely because the case was charge-sheeted by the police. It has to be stated further, that the court is given power to permit even such private person to submit his written arguments in the court including the Sessions Court. if he submits any such written arguments the court has a duty to consider such arguments before taking a decision." (underlines supplied) 6. Thereafter, the Apex Court considered the provisions of section 302 of the said Code which are applicable to an inquiry before the Court of a learned Magistrate. After observing that the wider amplitude provided under section 302 is limited to the Court of a Magistrate and after observing that the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much limited, the Apex Court proceeded to hold thus :- "The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that as aggrieved private person is not altogether to be eclipsed from the scenario where 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 him." (underlines supplied) 7. 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 him." (underlines supplied) 7. My attention is also invited to the decision of the Apex Court in the case of Bhagwant Singh (supra). The Apex Court was dealing with a situation where a report is submitted under sub-section (2) of section 173 before a Magistrate and the Magistrate decides not to take cognizance of the offence. The Apex Court observed that while passing such order, it is not possible to spell out either from the said Code or from the principles of the natural justice, an obligation on the part of a Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report unless such person is the first informant who has lodged the first information report. In paragraph 4, the Apex Court has observed that " 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-section (2)(i) of S.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. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-sec.(2)(i) of S.173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report." In paragraph 5 of the said decision, the Apex Court proceeded to observe :- "5. The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant is entitled to notice when the report comes up for consideration by the Magistrate. The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Criminal P.C., 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report." 8. It will also be necessary to refer to the decision of this Court in the case of Chandrakant Chandulal Bhansali (supra). This Court has considered the question whether the principles applicable for cancellation of regular bail apply equally even to an application for cancellation of an anticipatory bail. The learned Judge of this Court has considered the scheme of section 438 of the said Code. Thus, the issue involved in this application did not specifically arise before this Court in the said decision. The learned Judge of this Court has considered the scheme of section 438 of the said Code. Thus, the issue involved in this application did not specifically arise before this Court in the said decision. In paragraph no.8 of the said decision, the learned Judge has observed that since the complainant was the aggrieved party, even though it was a State prosecution, it would have been advisable to issue notice to the complainant before deciding an application for anticipatory bail. The learned Judge observed that it is more out of abundant caution than anything else that Courts often observe the procedure because instances are not wanting where the prosecuting authority either due to negligence or sometimes in collusion with the accused does not properly point out to the Court all the relevant material. While dealing with the consideration of an application for cancellation of anticipatory bail, in paragraph no.11 of the said decision, the learned Judge has held thus :- "Having regard to the circumstances in which anticipatory bail orders are normally obtained, the grounds on which such orders can be reviewed would be different to the general principles on which bail can be cancelled. To my mind, therefore, as indicated earlier, predominant considerations which would arise while reconsidering the anticipatory bail order are the following a) Whether the prosecution and the complainant were heard and whether they had a fair opportunity of pointing out to the Court the grounds, if any, why bail ought not to be granted. b) At what stage of the investigation was the order passed and whether the passing of such an order could have the object of interfering with impeding or frustrating the investigation? c) Whether the considerations on which the bail order was passed were germane or whether the Court was either mislead or had overlooked the basic or fundamental aspects of the case while passing the order." 9. There is a decision of the Madras High Court in the case of P.S. Saravanabhavanandam and another (supra) specifically deals with this aspect. In paragraph no.13 of the said decision, the Madras High Court has held in paragraph no.13, thus :- "13. There is no provision in the Criminal P.C. which enables a third party to get himself impleaded in the proceedings before the criminal court. In paragraph no.13 of the said decision, the Madras High Court has held in paragraph no.13, thus :- "13. There is no provision in the Criminal P.C. which enables a third party to get himself impleaded in the proceedings before the criminal court. As already observed, we have only S.301 Cr.P.C. which enables the private parties to assist the prosecution and also submit written arguments with the leave of the Court. According to S.301 Cr.P.C., such assistance is to be given at the inquiry, trial or appeal in a criminal case. The question that arises is whether private parties can be allowed to intervene in the anticipatory bail petition with a view to represent matters before the court, when there is no provision for intervention in the Criminal P.C. By ‘intervention’ it is understood that a party who is possession of facts may appear before the court as an intervener and make his submissions on the matter in issue. In such cases, such a party is shown as intervener in the proceedings before the court. When a party cannot be imp leaded in a criminal proceeding, as held by this court, in the decision referred to above, he cannot be permitted to come in under the guise of an intervener. But, at the same time bearing in mind the wholesome observations of the Supreme Court extracted above, the right of a party to represent matters before the court cannot be whittled down into a strait jacket formula of locus standi, which is unknown to criminal jurisprudence. It is open to any party to make his representations in the bail proceedings pending before this court before the inquiry or trial starts." (underlines supplied) . Thus, the Madras High Court has recognized the right of the complainant to make his representation in the proceedings of anticipatory bail. The said decision is not correctly read by the Delhi High Court in the case of Smt. Indu Balu (supra). 10. In the case of Dr.Sunil Puri v/s State of Chhatisgarh, the Chhattisgarh High Court came to the conclusion that while considering the application for bail, the Counsel for the Complainant has no right of audience and he cannot be permitted to address the Court. The Chattisgarh High Court considered the provisions of section 301 of the said Code as well as the decision of the Apex Court in the case of J.K.International (supra). The Chattisgarh High Court considered the provisions of section 301 of the said Code as well as the decision of the Apex Court in the case of J.K.International (supra). The Court held that the statutory provisions of the said Code are clear and unambiguous and as the said Code does not permit a right of audience to the complainant while hearing the case for grant of anticipatory bail. The High Court proceeded to hold that it is only the State Counsel who can be heard in opposing the application and the Complainant can only assist the State Counsel. 11. It is true that the provisions of the said Code do not specifically recognise the right of intervention. However, the role which the first informant or the complainant can play has been considered by the Apex Court in the case of J.K. International. In the paragraph 10 of the said decision, the Apex Court has observed that even before the Sessions Court the role of a private person who is aggrieved by the offence is not altogether wiped out merely because the accused was charge sheeted by the Police. The Apex Court observed that the relevant provision of the said Code permits written arguments to be filed by a private person before the Sessions Court and the Court is duty bound to consider the written arguments. The Apex Court has observed that the aggrieved private person or complainant is not altogether eclipsed from the scenario when a Criminal Court takes cognizance of the offence based on the report of the Police. The Apex Court noted the reality that almost in all such cases, the grievance is of individuals who are wronged by the accused by committing offences against them. 12. The learned Single Judge in the case of Chandrakant Chandulal Bhansali (supra) while referring section 438 of the said Code has observed that the relief under section 438 is a preventive measure and in majority of cases, it is a stop gap exercise. In paragraph 8 of the Judgment, this Court observed as under :- "Also, since the complainant was the aggrieved party, even though this was a State prosecution, it would have been advisable to issue notice to the complainant before deciding the matter. In paragraph 8 of the Judgment, this Court observed as under :- "Also, since the complainant was the aggrieved party, even though this was a State prosecution, it would have been advisable to issue notice to the complainant before deciding the matter. With regard to this last aspect, it is necessary for me to observe that it is more out of abundant caution than anything else that courts often observe this procedure because instances are not wanting where the prosecuting authority either due to negligence or sometimes in collusion with the accused does not properly point out to the Court all the material that needs to be projected. It only results in the multiplication of litigations at a subsequent point of time manifest with all sorts of allegations and a Court is often required to rehear and review the earlier order, but often times the damage cannot be undone." . The Apex Court has recognised the right of the first informant or the complainant to challenge the order granting bail. The Apex Court has observed that even in a case of inquiry or trial before the Court of Sessions, the first informant has a right of filing written submissions which the Court is duty bound to consider. As held by the Apex Court, a Complainant has a right to be heard when the learned Magistrate considers police report under section 173(2) of the said Code recording an opinion that no offence has been made out. 13. When an application for anticipatory bail is considered, the police may not place all factual details before the Court as the investigation in most of such cases is at a preliminary stage. Therefore, some role can be played by the complainant by pointing out factual aspects. In the circumstances, it is not possible to hold that the first informant or the complainant cannot be heard in an application for anticipatory bail. When the complainant appears before the Court in the course of hearing of an application for grant of anticipatory bail, the Court is bound to hear him. But the said right cannot be allowed to be exercised in a manner which will delay the disposal of an application for anticipatory bail. The delay in disposal of such application may adversely affect the investigation. But the said right cannot be allowed to be exercised in a manner which will delay the disposal of an application for anticipatory bail. The delay in disposal of such application may adversely affect the investigation. Therefore, the right which can be spelt out in favour of the first informant or the complainant is of making oral submissions for pointing out the factual aspects of the case during the course of hearing of an application for anticipatory bail before the Court of Sessions. The said right is to be exercised by the complainant either by himself or through his Counsel. This is not to say that the Sessions Court hearing the application for anticipatory bail is under an obligation to issue notice to the first informant or the complainant. There is no such requirement of issuing notice to the first informant or the complainant at the hearing of the application for anticipatory bail. However, if the complainant or the first informant appears before the Court, he cannot be denied a right of making oral submissions either in person or through his Counsel. It must be noted here that the legal position on this aspect in the case of an application for regular bail may not be the same. 14. Subject to what is observed above, the learned Sessions Judge was justified in not accepting the submissions made on behalf of the Applicant. Subject to what is observed above, no case is made out for interference. The Application is rejected. 15. At this stage, the learned Counsel for the Applicant states that the hearing of the Application for anticipatory bail may be stayed. It is not possible to accede to this request. The result of this order will be that the first informant will be heard before passing an order on the application for anticipatory bail and therefore, merits of the case of the Applicant in the application for anticipatory bail will not be affected. Hence, the said prayer is rejected. 16. As a copy of the Judgment may not be ready immediately, the parties and the concerned Court to act upon an authenticated copy of operative part of the order. Application rejected.