Bombay High Court
Kishor Nandlal Shah And Ors vs The State Of Maharashtra And Anr on 20 September, 2023
Bench: S. V. Kotwal
2023:BHC-AS:27877
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2803 OF 2023
Kishor Nandlal Shah
and others .....Petitioners
Versus
State of Maharashtra
and another .... Respondents
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Mr. Ishan Jani, Advocate for the Petitioners.
Ms. Khushboo D. Rohra, Advocate i/b. Dharmendra Rohra, for
the Respondent No.2.
Mr. A.R. Patil, APP for the Respondent-State.
-----
CORAM : SARANG V. KOTWAL, J.
DATE : 20th SEPTEMBER, 2023
P.C. :
1. The Petitioners have challenged the order dated
9.5.2023 passed by the Additional Sessions Judge, Sessions
Court, Greater Mumbai in Criminal Revision Application
No.731/2018 below Exhibit-5 which was an application for
intervention filed on behalf of the Petitioners for impleading
them as party Respondents in the said Revision Application.
2. The Revision Application is preferred by the
Respondent No.2 herein, who was the original complainant in
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Deshmane(PS)
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the complaint before the Metropolitan Magistrate, 23 rd Court,
Esplanade, Mumbai. Initially learned Magistrate directed
investigation under Section 156(3) of Cr.P.C.. Pursuant to
which, M.E.C.R. No.1/2015 came to be registered with Cuffe
Parade Police Station, Mumbai on 8.12.2015 under Sections
120-B, 403, 406, 420 of IPC. The investigation was taken over
by the Economic Offences Wing. They filed 'C-summary' report
before the Additional Chief Metropolitan Magistrate, 47 th Court,
Mumbai. In the report it was concluded that the dispute
between the Respondent No.2 and the Petitioners was purely of
civil nature. The Respondent No.2 preferred a Protest Petition
challenging the 'C-Summary Report'. That Petition was rejected
by the Additional Chief Metropolitan Magistrate, 47 th Court,
Mumbai vide order dated 25.5.2018. Said order is challenged
by the Respondent No.2 before the Sessions Court, Mumbai vide
Criminal Revision Application No.731/2018. In that Revision
Application, the Petitioners preferred intervention application
which was rejected by the impugned order.
3. Heard Shri Ishan Jani, learned counsel for the
Petitioners, Ms. Khushboo Rohra, learned counsel for the
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Respondent No.2 and Shri A.R. Patil, learned APP for the
Respondent-State.
4. Learned counsel for the Petitioners relied on the
judgment of the Hon'ble Supreme Court in the case of
Manharibhai Muljibhai Kakadia and others Vs. Shaileshbhai
Mohanbhai Patel and others passed in Criminal Appeal
No.1577/2012 decided on 1.10.2012. He submitted that it is a
settled law that though the accused are not heard before the
Magistrate, if the complainant prefers Revision Application
against dismissal of the complaint then the accused have a right
to be heard and participate in the Revision proceedings. He
relied on the observations that the dismissal of the complaint by
the Magistrate results in termination of proceedings against the
persons who are alleged to have committed crime. Once a
challenge is laid to such order at the instance of the
complainant in a Revison Petition the suspects get right of
hearing before Revisional Court although such order was passed
without their participation. This observation can be found in
paragraph-54 of the said judgment.
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5. The learned Additional Sessions Judge has simply
brushed aside the judgments relied on by the Petitioners. She
has observed that the intervenors had relied upon some
citations but those citations were not supporting their case
unless the proposed accused found prima facie involved in the
commission of the offence. This observation of the learned
Additional Sessions Judge is not correct in view of the ratio of
the judgment of the Hon'ble Supreme Court in Manharibhai
Kakadia (supra).
6. The learned counsel for the Respondent No.2 tried
to support the impugned order. However, she could not
controvert the submissions made by learned counsel for the
Petitioners based on the ratio of Manharibhai Kakadia's case
(supra).
7. In this view of the matter, the impugned order is not
sustainable and deserves to be set aside. The Petitioners
deserve a chance of being heard in the said Criminal Revision
Application No.731/2018 before the Additional Sessions Judge,
Sessions Court, Greater Mumbai. Hence the following order :
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:: O R D E R ::
i. The Writ Petition is allowed.
ii. The order dated 9.5.2023 passed by the Additional
Sessions Judge, Sessions Court, Greater Mumbai below
Exhibit-5 in Criminal Revision Application
No.731/2018 denying an opportunity to the Petitioners
to participate in the proceedings; is set aside.
iii. The Respondent No.2 shall add the Petitioners as party
Respondents in the said Criminal Revision Application.
iv. The Additional Sessions Judge shall decide said
Criminal Revision Application in accordance with law
after hearing all the parties.
v. With these observations the Petition is disposed of.
(SARANG V. KOTWAL, J.)
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