Bombay High Court
In The High Court Of Judicature At ... vs Unknown on 28 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Rev. Application No. 168 of 2004
Applicant : Kalyani wife of Subhash Buty, aged about
49 years, occ: Landlady and House-wife,
resident of Buty Bungalow, Civil Lines,
Nagpur
versus
Respondents : 1) The State of Maharashtra, through
Police Station Officer, Sitabuldi, Nagpur
2) Dr Avinash Prakashchandra Banait,
aged about 46 years, occ: Medical
Practitioner, resident of 251, Congress
Nagar, Nagpur
3) Dinkar @ Divakar Pandurang Karade,
aged about 28 years, resident of Gopal
Nagar, Nagpur
4) Chand @ Raju Mulchand ... Deleted
Mr S.V. Sirpurkar, Advocate for applicant
Mr D. P. Thakare, APP for respondent no. 1
Mr R. S. Sunderam, Advocate for respondents no. 2 and 3
Coram : A. P. Bhangale, J
Dated : 28th November 2011
Oral Judgment
1. Heard learned counsel for the parties. Respondents
no. 2 to 5 (original accused) filed application (exhibit 13) before the
Judicial Magistrate, FC, Nagpur in Regular Criminal Case No. 670 of
1992 for their discharge. Learned Magistrate rejected that application
as against which accused preferred Criminal Revision Application No.
304 of 2000 before the Sessions Judge who by order dated 18th July
2002 allowed the application of accused and discharged them of the
offences punishable under Sections 341, 448 and 506 read with Section
34 of the Indian Penal Code. It is this order which is subject-matter of
challenge in this application under Section 482 Cr. P.C.
2. Learned counsel for the applicant, inter-alia, contended that
application should not have been allowed by the Sessions Judge
particularly when charge was about to be framed in the Regular
Criminal Case. Main limb of argument is that applicant being
complainant on whose complaint accused stood prosecuted, should
have been given notice of hearing and since the impugned order is
passed without affording opportunity of being heard to the original
complainant, the same is non-est and is vitiated. Reliance is placed on
M/s J.K. International v. State and ors reported in AIR 2001 SC 1142.
3. In M/s J.K. International's case (supra), the Apex Court in
paragraph 9 holds thus :
"The scheme envisaged in the Code of Criminal
Procedure (for short "the 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. Even the
fact that the Court had taken cognizance of the
offence is not sufficient to debar him from
reaching the Court for ventilating his
grievance. Even in the Sesions Court, where
the Public Prosecutor is the only authority
empowered to conduct the prosecutiion as per
Section 225 of the Code, a private person who
is aggrieved by the offence involved in the case
is not altogether debarred from participating in
the trial. This can be discerned from Section
301(2) of the Code......"
4. Mr Sunderam, learned counsel for respondents no. 2 and 3
contends that revision applicant was not required to be made a party
to the proceedings as the State of Maharashtra, through Police Station,
Sitabuldi, Nagpur was already a party to the proceedings. He
submitted that the complainant would not be covered by the
expression "other person" contained in Section 401 (2) of the Code of
Criminal Procedure as the opportunity of hearing is required to be
granted in favour of accused or a party which is similarly placed; and
informant or complainant is not a person who is similarly placed and,
therefore, cannot claim protection under Section 401 (2) Cr. P. C.
According to Mr Sunderam, ruling in M/s J.K. International's case
(supra) is not attracted in the present case. He made reference to the
ruling in Thakur Ram & ors v. The State of Bihar reported in AIR
1966 SC 911 (paragraphs 8, 9). The Apex Court observed in
connection with Section 435 Cr. P. C. (old Code) that in a case which
has proceeded on a police report, a private party has no locus standi,
because the criminal law is not to be used as an instrument of wrecking
private vengeance by an aggrieved party against the person who,
according to that party, had caused injury to it. It was further
observed that barring a few exceptions, in criminal matters, the State
which is the custodian of the social interests of the community at large
and so it is for the State to take all the steps necessary for bringing the
person who has acted against the social interests of the community to
book. In Thakur Ram's case (supra), the Apex Court had directed the
trial to proceed according to law.
5. Reference is also made to single Judge's ruling in Ravinder
Bhatia v. Satnam Singh & anr reported in 1990 Cri. L.J. 2467 (Delhi
High Court) in which it is observed that there is no right of a party to
be heard in person before criminal revision is decided. It is also quite
clear that once criminal revision has been dismissed on merit, the Court
has no power to review the said order. Then reference is made to a
ruling in M/s Kerala Transport v. D. Soma and ors reported in 1982 Cri.
L.J. 1065 in order to submit that informant or complainant is not a
person who is entitled to be heard under Section 401 (2) Cr. P. C.,
because once the State has undertaken the prosecution, the original
complainant ceases to be an independent entity with a cause of his own
to advocate his cause. In other words, private party has no locus
standi and if a private party is permitted to prosecute the proceedings
along with the State, it would not only lead to chaos and confusion but
also would amount to a sort of double jeopardy.
6. Mr S. V. Sirpurkar, learned counsel for revision applicant
made reference to ruling in State of Himachal Pradesh v. Krishnan Lal
and ors reported in AIR 1987 SC 773 so as to submit that at the stagte
of framing charge, the Court is only concerned with prima facie case
regarding commission of certain offences. At that prima facie stage, it
is not to be considered as to whether the charges will eventually stand
proved or not since proof of offence is to be determined only after the
evidence is recorded in the case. It is submitted that learned Additional
Sessions Judge who decided to quash the order of learned trial
Magistrate rejecting application for discharge preferred by the accused
for the offences under Sections 341, 448 and 506 read with Section 34
of the Indian Penal Code, ought to have, before allowing the
application for discharge in exercise of revisional jurisdiction,
summoned the complainant in the case so as to give her opportunity of
hearing as the order to be passed would have the effect to dismiss the
complaint since the accused were to be discharged. Mr Sirpurkar also
submits that learned Additional Sessions Judge ought to have at lease
issued notice to the complainant before quashing the reasoned order
impugned before him. He also submitted that the change in law may be
noted which take care of the victim in criminal justice delivery system
to ensure that any other person who is likely to be prejudicially affected
by the order of revisional court is required to be heard for advancement
of cause of justice and in consonance with the principles of natural
justice.
7. It cannot be disputed that even when the State Government
has not challenged the impugned judgment and order, it may be open
for this Court to set aside aside the order of discharge or acquittal in in
exercise of revisional jurisdiction even at the instance of a private party
particularly when the State did not prefer to challenge the impugned
judgment and order although this power may be exercised in
exceptional case where there is some glaring defect in the procedure or
manifest error on point of law which resulted in miscarriage of justice.
8. This Court in Shriram Nagordhar & ors v. State of
Maharashtra and anr reported in 2006 Cri. L.J. 2216 observed taking
note of the change in the Legislative intent of introducing the words
"any other person" that opportunity of being heard ought to be
granted to any person who is likely to be prejudicially affected by order
of revisional court as it is necessary for advancement of the cause of
justice and is also in consonance with the principles of natural justice.
Thus, it was concluded that it is necessary for the revisional court to
hear such person before the order is passed to the prejudice of any such
person looking into spirit of the provisions contained in Section 401
(2) Cr. P. C.
9. Therefore, without entering into merits of the controversy
between the parties, I think, it would be just and necessary for learned
Additional Sessions Judge, Nagpur to hear revision-applicant Smt
Kalyani Subhash Buty (complainant/first informant) and then to pass
appropriate order in accordance with law.
10. For all these reasons, impugned judgment and order is
quashed and set aside and matter is remitted back to the Additional
Sessions Judge, Nagpur with direction that learned ASJ shall hear
present revision petitioner Smt Kalyani Subhash Buty in addition to
hearing accused persons and learned learned prosecutor concerned
prosecuting the case and then to pass an appropriate order in
accordance with law. Parties to appear before learned Additional
Sessions Judge on 15th December 2011 at 11.00 a.m. The Revisional
Court shall decide the proceedings as expeditiously as possible.
A. P. BHANGALE, J
joshi
