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2013 DIGILAW 539 (BOM)

Vaishali Sudhakar Badhe v. State of Maharashtra

2013-03-05

A.B.CHAUDHARI, A.P.LAVANDE

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JUDGMENT A. P. Lavande, J.: 1. Heard Shri Sirpurkar, learned Counsel for the petitioner, Shri Nayak, learned Additional Public Prosecutor for respondent No.1State and Shri Deshpande, learned Counsel for respondent No.2. 2. Rule. By consent of the learned Counsel for the parties and the learned A.P.P., heard forthwith. 3. Briefly, the facts leading to filing of the petition are as under.: The petitioner herein initially filed a report against respondent No.2 for commission of an offence under Section 304A of the Indian Penal Code at Civil Lines Police Station, Akola. Since the police did not take any action, the petitioner filed criminal complaint under Section 190 read with Section 200 of the Code of Criminal Procedure before the Judicial Magistrate, First Class, Court No.1 at Akola on 06/12/2008. The learned Magistrate passed an order under Section 156(3) of the Cr. P. C. directing investigation on 17/12/2008. Pursuant to the said order, the Officer-in-Charge of Civil Lines Police Station, Akola registered the First Information Report against respondent No.2 under Section 304A of the Indian Penal Code. The order passed under Section 156(3) of the Cr. P. C. was challenged by respondent No.2 by filing a revision before the Sessions Judge, Akola, which was dismissed by an order dated 18/8/2009 against which a Criminal Writ Petition bearing No. 569/2009 came to be filed in this Court, which was disposed of by the learned Single Judge by judgment and order dated 20/4/2010 keeping in abeyance the investigation and directing the Expert Committee to look into the matter. Thereafter, the Expert Committee submitted the report. The petitioner filed the present Writ Petition initially challenging the report given by the Expert Committee on various grounds. In the reply filed on behalf of respondent No.1State, it was stated that pursuant to the registration of the First Information Report, investigation was carried out and C summary was filed in the Court of J.M.F.C. Court No.7, Akola on 25/12/2010 and by order dated 04/5/2012 the learned Magistrate has allowed the said C summary. Thereafter, the petitioner amended the petition challenging grant of C summary by the learned J.M.F.C., Akola. 4. There is no serious dispute that the Judicial Magistrate, First Class Court No.7, Akola has passed an order dated 04/5/2012 allowing C summary without giving an opportunity of being heard to the petitioner, who was the original complainant. Thereafter, the petitioner amended the petition challenging grant of C summary by the learned J.M.F.C., Akola. 4. There is no serious dispute that the Judicial Magistrate, First Class Court No.7, Akola has passed an order dated 04/5/2012 allowing C summary without giving an opportunity of being heard to the petitioner, who was the original complainant. It is, now, well settled by catena of judgments that before granting any summary, the first informant/ complainant is entitled to be heard. Moreover, C summary was filed in J.M.F.C. Court No.7 when the complaint was initially filed by the petitioner in J.M.F.C. Court No.1, Akola. Hence, it was for J.M.F.C. Court No.1 to pass an appropriate order on C summary filed by respondent No.1 after giving an opportunity of being heard to the petitioner/complainant. On this count only impugned order dated 04/5/2012 passed by the Judicial Magistrate, First Class, Court No.7, Akola is liable to be quashed and set aside. 5. In view of the above, order dated 04/5/2012 passed by the Judicial Magistrate, First Class, Court No.7, Akola is quashed and set aside. The learned Magistrate is directed to pass a fresh order after giving an opportunity of being heard to the petitioner. The petitioner shall appear before the Judicial Magistrate, First Class, Court No.7, Akola on 12/3/2013, on which date, according to Mr. Sirpurkar, learned Counsel for the petitioner, the matter is fixed. Rule is made absolute in the aforesaid terms.