Bombay High Court
Babasaheb Poul vs The State Of Maharashtra And Anr on 7 October, 2021
Bench: S. K. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3172 OF 2021
Babasaheb Poul .....Petitioner
V/s.
The State of Maharashtra
and anr. ....Respondents
****
Mr. Subodh Desai i/by. Mr. Aditya Sawant, Advocate for the
petitioner.
Smt. Sharmila Kaushik, APP for State.
Investigating Officer-PSI, Laxman Kakde, Colaba Police
Station present.
CORAM : SANDEEP K. SHINDE, J.
Reserved On: 16th September, 2021.
Pronounced On : 7th October, 2021.
JUDGMENT :
1. Rule. Rule made returnable forthwith. By consent
of the parties, taken up for hearing forthwith.
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2. This petition under Article 227 of the Constitution
of India read with Section 482 of the Code of Criminal
Procedure takes exception to the order dated 1 st
September, 2021 passed by the learned Metropolitan
Magistrate, 8th Court, Esplanade, Mumbai denying the right
of audience to the complainant-petitioner, in an application
moved by the respondent no.2-accused seeking defreezing
of her Mutual Fund Folios and Demat Account in Case
No.326/PW/2017. Grievance is that, by impugned order
dated 1st September, 2021, the learned Magistrate not only
deprived the complainant, of her right to be heard, but also
subjected her to cost, without any powers therefor in the
Code of Criminal Procedure.
3. Facts essential for the decision of this petition
are as under :
. Petitioner is a Executive Accounts Officer, of M/s.
Ravissant Private Limited ("Company" for short) engaged in
the manufacturing and sale of silver and silver plated gift
articles and fashionware. Respondent no.2 (accused) being
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the Senior Store Manager, was responsible for the receipt
of company's stock, maintaining its records, sales etc.
Internal enquiries revealed that, the respondent no.2 had
been selling products to customers based on fabricated
bills and the payments in lieu of such products were
misappropriated, to cause illegal gains to her and unlawful
loss to the Company. The Company, thereafter filed FIR
being C.R. No.89/2016 for the offences punishable under
Sections 406, 420, 465, 468, 471 read with Section 34 of
the Indian Penal Code against respondent no.2. After
investigation, on 27th March, 2017, a final report was filed.
Whereafter on 23rd November, 2017, respondent no.2
preferred an application for defreezing of Mutual Fund Folios
and Demat Accounts, that were freezed by the Investigating
Agency during investigation with respect to the aforesaid
crime. Petitioner being, likely to adversely affect by the
application for defreezing/return of property, sought to
intervene by preferring an intervention application dated 5 th
August, 2021.
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4. On 1st September 2021, learned Magistrate was
pleased to deny the, right of audience to the petitioner;
whilst imposing cost to the petitioner. Feeling aggrieved by
this order, the petitioner has approached this Court under
its supervisory jurisdiction under Article 227 of the
Constitution of India.
5. Heard learned Counsel for the petitioner and
Prosecutor for the State.
6. Two questions have arisen for my consideration
whilst;
(i)Whether private person aggrieved by the offence
committed against him or against anyone in whom he is
interested, can approach the Magistrate and seek
permission to conduct the prosecution himself ?
(ii) In the facts and circumstances of the case, whether
the learned trial Court was justified in awarding costs ?
7. Before, answering the questions, it may be stated
that the petitioner had preferred more than one applications
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seeking intervention in the proceedings filed by respondent
no.2 for defreezing his Mutual Fund Folio and Demat
Account. In all previous applications, the petitioner was
declined, right to audience, however was permitted to assist,
the learned Assistant Public Prosecutor.
8. Learned Counsel for the petitioner, has relied on
the following judgments to contend that, the parties
adversely affected have right of audience.
"(i). State Bank of India V/s. Rajendra Kumar Singh and
Ors, AIR 1969 SC 401.
(ii). Basappa Durgappa Kurubar & Ors. V/s. State of
Karnataka & Anr., 1977 Cri.L.J. 1541 (Kant).
(iii) Baba Abdul Khan s/o. Daulat Khan & Ors. V/s. Smt. A.D.
Sawant, J.M.F.C. Nagpur & Ors., 1994 Cri.L.J. 2836.
(iv) Gorakshanarth Aadiwasi Sevabhavi Sanstha (Naik))
Gopal Gaushal Hatta Naik V/s. State of Maharashtra & Anr.
(2021) 2 AIR Bom c.r. (Cri.) 258.
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(v) Shamrao Sampatrai Khanderai V/s. State of
Maharashtra & Anr. 1979 Cri. L.J. 1457.
(vi)Ramchetsing Arjunsing V/s. Deoji Kalyanji, AIR 1942
(Bom) 42.
. Undoubtedly in these judgments, right of affected
party to be heard, has been acknowledged but such rights
were relatable to proceedings under Chapter-XXXIV
(Disposal of Property) in Criminal Procedure Code and
particularly while passing orders for custody and disposal
or delivery of property to any person claiming to be entitled
to possession thereof, which has been seized by police in
the course of investigation. Therefore, right acknowledged
under the said Chapter, cannot be extended to a private
aggrieved individual to conduct the prosecution at whose
behest, prosecution has been lodged.
9. Mr. Desai, learned Counsel for the petitioner, to
answer the point (i), largely relied on the judgments of the
Apex Court namely (i)J.K. International V/s. State (Govt. of
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NCT of Delhi) & Ors. (2001) 3 SCC 462, (ii)Dhariwal
Industries Ltd. V/s. Kishore Wadhwani & Ors. (2016) 10 SCC
378; (iii)Shivkumar V/s. Hukumchand, 1999 (Cri.) 1274.
10. In the case of Dhariwal Industries (supra),
Magistrate granted permission to the complainant to be
heard at the stage of framing charge under Section 239 of
the Criminal Procedure Code. High Court modified the order
of the Magistrate by expressing, the view that role of the
complainant is limited under Section 301 of Criminal
Procedure Code and he cannot be allowed to take over the
control of the prosecution by directly addressing the Court,
but has to act under the directions of the Assistant Public
Prosecutor, incharge of the case. Order of the High Court
was assailed in Criminal Appeal before the Hon'ble Apex
Court. The Apex Court examined the scope of Sections 301
and 302, of the Criminal Procedure Code, referred to the
judgment in the case of Shivkumar (supra) and held that,
Section 301 applies to the trial before the Magistrate, as
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well as, Court of Sessions. In paragraph-12, upon
examining the purport of Section 301 of the Code, held that,
the application of provisions of Section 302 of the Code is
confined to the Magistrate's Court, yet Section 301(2) is
applicable to all Courts without any exception. The first
sub-section of Section 301 empowers the Public Prosecutor
to plead in the Court without authority, provided he is
incharge of the case and the second sub-section imposes
the curb on counsel engaged by any private party. In para-
13 by referring to the judgment in the case of J.K.
International (supra), it was held that, private person can be
permitted to conduct the prosecution in Magistrate's Court
and that when permission is sought to conduct the
prosecution by private person, it is open to the Court to
consider his request and observed that, before granting the
permission, the Court has to form an opinion that the cause
of justice would be best sub-served, if such permission is
granted and also observed, it would generally grant such
permission.
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11. Thus judgments, in the case of Dhariwal
Industries (supra), Shivkumar (supra) and J.K. International
(supra), govern the issue which has arisen, herein. From
these judgments, the law as to right of aggrieved person, to
conduct the prosecution in the Court of Magistrate can be
summarised as follows :
I. Aggrieved person/victim has following types of rights :
(a). (i)right to be impleaded.
(ii)right to know.
(iii)right to be heard.
(iv)right to assist the Court in pursuit of truth.
(b). an aggrieved person is not altogether eclipsed from the
scenario when the criminal court takes cognizance of the
offence based on the report submitted by the police.
(c). though Magistrate is not bound to grant permission at
the mere asking, but victim has a right to be heard and right
to assist the Court in pursuit of truth, as held in Mallika
Arjun Kotagali V/s. State of Karnataka & Ors. (2019) 2 SCC
752.
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(d). The Magistrate may consider as to whether the victim
is in position to assist the Court and as to whether the trial
does involve such complexities which cannot be handled by
the victim; and
on satisfaction of such facts, the Magistrate would be
within his jurisdiction to grant permission to the victim.
(e) when complainant wants to take benefit as provided
under Section 302, he has to file written application making
out his case.
(f) that the provisions of Section 302 applies to every
stage including the, stage of framing charge.
(g) the private person, who is permitted to conduct
prosecution in the Magistrate's Court can engage a Counsel
to do the needful in the Court on his behalf.
(h). the role of informant or a private party is limited during
the prosecution of case in the Court of Sessions and the
Counsel engaged by him is required to act under the
directions of Public Prosecutor. (emphasis supplied)
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12. In the case in hand, the petitioner-complainant,
has lodged FIR against the respondent no.2-accused, with
respect to commission of offences punishable under
Sections 420, 406 of the Indian Penal Code. Petitioner's
case is that, respondent no.2 being incharge as Senior
Store Manager, by taking undue advantage of the position,
sold products on counterfeit bills and misappropriated
company funds to the tune of over Rs.1.5 crores. This
amount, being proceeds of crime, was invested in mutual
funds, of which the respondent no.2-accused seeks
defreezing. In the facts and circumstances of the case, the
learned trial Court although permitted the petitioner to
intervene in the proceedings (defreezing of Mutual Fund
Folios and Demat Account), the learned Judge declined the
right to audience, but permitted to assist the Public
Prosecutor, subject to cost Rs.2,000/-. What appears
from the tenor of the order, is that, the learned
Metropolitan Magistrate relied on the provisions of
Section 301 of the Criminal Procedure Code and overlooked
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Section 302. The subject proceedings being filed before the
Magistrate Court and since the petitioner (complainant)
sought intervention and right to audience by filing an
application, the learned Magistrate ought to have
considered the application as to whether the petitioner
would be in position to assist the Court and as to whether
the proceedings involved such complexities which cannot be
handled by the petitioner. The law laid down in the case of
Dhariwal Industries (supra) and other judgments by the
Apex Court, makes it clear that, Magistrate is not bound to
grant permission but on reaching satisfaction that the
complainant, if heard, would assist the Court to reach the
just conclusion, the Magistrate would be within his powers to
grant the permission. In the circumstances and for the
reasons stated above, the impugned order declining
audience to the petitioner in the proceedings filed by the
accused, seeking defreezing of her Accounts, is set aside.
The Learned Magistrate, shall decide the petitioner's
application for intervention (dated 5 th August, 2021) in
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accordance with law, as summarised herein, preferably
within two months from the date on which the order is
produced before him. In consideration of the facts of the
case, in my view, the learned Magistrate was not justified in
imposing the cost, Rs.2,000/- on the petitioner.
Accordingly , the order imposing the cost is quashed and set
aside.
13. In the result, the impugned order is quashed and
set aside. The learned Magistrate shall decide the
intervention application dated 5th August, 2021 filed by the
complainant in Case No. 326/PW/2017.
14. Rule is made absolute in the aforesaid terms.
Petition is disposed off.
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2021.10.07
18:53:28
+0530
(SANDEEP K. SHINDE, J.)
