Bombay High Court

Yuvraj Sitaram Dhamale vs State Of Maharashtra And Anr on 30 January, 2024

Author: N. J. Jamadar

Bench: N. J. Jamadar

2024:BHC-AS:5216
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                                                                                       Santosh

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION


                                  CRIMINAL APPLICATION NO. 24 OF 2023

               Yuvraj Sitaram Dhamale                                     ...Applicant
                                    Versus
               1. State of Maharashtra
               2. Usha Sanjay Kakade                                 ...Respondents


               Mr. Abad Ponda, Senior Advocate, a/w Nilesh Tribhuvann,
                    Burzin Bharucha, Satyavrat Joshi, Sanjay Rego,
                    Kaushal Popat and Jhanavi Shah, i/b Nilesh Mohite,
                    for the Applicant.
               Mrs. Geeta Mulekar, APP for the State/Respondent.
               Mr. Satish Maneshinde, a/w Harshad Nimbalkar, Satyam
                    Nimbalkar, Vrushali Maindad and Abhishek Arote, for
                    the Respondent.

                                                  CORAM: N. J. JAMADAR, J.
                                                  DATED: 30th JANUARY, 2024

               ORDER:

1. This application under Section 482 of the Code of Criminal

Procedure, 1973 ("the Code") assails the legality, propriety and

correctness of a judgment and order passed by the learned

Additional Sessions Judge, Pune, dated 12th September, 2022, in

Criminal Revision Application No.171 of 2022, whereby the

learned Additional Sessions Judge was persuaded to allow the

revision application and set aside the order dated 5th February,

2022 passed by the learned Magistrate on an application for

discharge preferred by respondent No.2 - original accused No.2

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in Regular Criminal Case No.2930 of 2020 and thereby

discharge respondent No.2 of the offences punishable under

Sections 506(2), 506, 500 and 504 read with 34 of the Indian

Penal Code, 1860 ("the Penal Code").

2. The background facts necessary for the determination by

this application can be stated, in brief, as under:

(a) The applicant - first informant, is the brother of

respondent No.2 - accused No.2. Accused No.1 is the husband

of respondent No.2. The applicant lodged a report with the

allegations that the applicant - first informant and accused No.1

were dealing in the business of construction and development of

properties, in a partnership, till the year 2010. The first

informant started his independent business. Thereupon,

disputes arose between the first informant and accused Nos.1

and 2.

(b) The first informant alleged in the month of August,

2018, he had visited the house of the accused. At that time both

the accused had abused, insulted and threatened the first

informant. In the month of September, 2018, during Ganesh

festival, the first informant again visited the house of accused.

Accused No.2 abused and insulted the first informant. Accused

No.1 also abused and insulted the first informant and

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threatened to eliminate the first informant and his family

members by employing hirelings and also threatened to

implicate the first informant in false cases. Thereupon the first

informant lodged report leading to registration of CR No.1158 of

2020 for the offence punishable under Sections 506(2), 506, 500

and 504 read with Section 34 of the Penal Code. Post

completion of investigation, charge-sheet came to be lodged.

By an order dated 5th February, 2022, the learned JMFC

rejected the application opining that there were prima facie

sufficient grounds to proceed against accused No.2.

3. Being aggrieved, accused No.2 preferred Revision

Application No.171 of 2022 before the Court of Session at Pune.

By the impugned order, the learned Additional Sessions Judge

was persuaded to allow the revision holding inter alia that there

was prima facie no sufficient material to frame charge against

accused No.2. Thus, the learned Additional Sessions Judge

interfered with the order passed by the learned Magistrate and

discharged accused No.2 of the offences punishable under

Sections 506(2), 506, 504 and 500 of the Penal Code.

4. Being aggrieved, the first informant has preferred this

application. The principal contention of the first informant is

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that the impugned order suffers from grave procedural

irregularity as the learned Additional Sessions Judge allowed

the revision application and discharged accused No.2 without

providing an effective opportunity of hearing to the first

informant. Accused No.2 ought to have impleaded the first

informant as a party respondent to the revision application. In

any event, it was incumbent upon the Court of Session to issue

notice to the first informant as, being a victim, the first

informant had a right to be heard in a matter where the accused

sought discharge. The applicant asserts in view of the

provisions contained in Section 401(2) of the Code, 1973, the

first informant deserved an opportunity of being heard. And,

consequently, the revisional court could not have passed the

impugned order to the prejudice of the first informant.

5. An endeavour was also made to assail the legality and

correctness of the impugned order on the ground that the

revisonal court had not considered the statements of the

witnesses recorded under Section 164 of the Code of Criminal

Procedure, 1973 ("the Code") which lend support to the

allegations in the FIR. The impugned order, therefore, suffers

from the vice of non-consideration of the relevant material

which bears upon the complicity of accused No.2

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6. An affidavit-in-reply is filed on behalf of respondent No.2.

Controverting the contentions of the first informant, accused

No.2, contends that the first informant was not entitled to be

heard in a revision application as the words 'other person'

appearing in sub-section (2) of Section 401 are required to be

read ejusdem generis "accused" and do not include the first

informant/complainant. Even otherwise, no party has any right

to be heard before any Court exercising revisional powers and it

is in the discretion of the Court to hear any party. Thus, the

learned Additional Sessions Judge committed no error in

deciding the revision application after providing an effective

opportunity of hearing to the learned Public Prosecutor, who

espouses the cause of the prosecution. Under the Code, the only

right which a complainant/first informant has, is to assist the

prosecution. Accused No.2 further contends, the first informant

despite being aware of the proceedings before the learned

Magistrate as well as the revisional court consciously chose not

to participate and, therefore, now cannot be permitted to assail

the impugned order.

7. Accused No.2 further contended that the impugned order

is impeccable on merits. The statements under Section 164 of

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the Code do not add any value to the allegations in the FIR,

which are grossly belated and inherently improbable.

8. I have heard Mr. Ponda, the learned Senior Advocate for

the applicant, Mrs. Mulekar, the learned APP for respondent

No.1/State and Mr. Maneshinde, the learned Counsel for

respondent No.2. The learned Counsel took the Court through

the pleadings and the material on record.

9. Mr. Ponda, the learned Counsel for the applicant - first

informant, submitted that the impugned order warrants

interference on the sole ground of denial of an opportunity of

hearing to the victim of the alleged offences. Amplifying the

submission, Mr. Ponda would urge the position of the victim in a

criminal case has been progressively recognized as a party who

has an abiding interest in the prosecution. By Amendment Act

5 of 2009, the definition of the 'victim' came to be inserted

under Clause (wa) of sub-section (2) of the Code. The victim has

been conferred right to prefer an appeal against an order passed

by the Court in certain circumstances. Even otherwise the

provisions contained in Section 401(2) warrant an opportunity

of hearing to a person, who would be prejudiced by the order

passed by the revisional court. The term 'other person'

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employed in sub-section (2) of Section 401 encompasses in its

fold the first informant - complainant.

10. Mr. Ponda would urge the issue is no longer res integra

and by a series of judgments this Court has held that in a

revision application against an order of issue of process or

refusal to discharge, which may entail the consequence of

termination of proceedings, the first informant - complainant

must be heard. Reliance was placed on the judgments of this

Court in the cases of Kalyani vs. State of Maharashtra1,

Prakash C. Sheth vs. State of Maharashtra and anr. 2 Prakash

C. Sheth vs. State of Maharashtra and anr. 3 and Mrs. Vibha

w/o Shailesh Ashapilliya vs. State of Maharashtra and ors. 4,

Criminal Application No.484 of 2018 dated 13th June, 2019.

11. Mr. Ponda further submitted that the right of the victim to

participate in the proceedings, even at stages prior to the

commencement of the trial, has been judicially recognized.

Attention of the Court was invited to the judgment of the

Supreme Court in the cases of Jagjeet Singh and others vs.

Ashish Mishra alias Monu and another5, Mallikarjun Kodagali

1 2011 SCC Online Bom 1528.

3 Cri.Revision Application No.60 of 2022 dtd.6/12/2022. 4 Cri. Application No.484/2018, dtd.13/6/2019. 5 (2022) 9 Supreme Court Cases 321.

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(dead) represented through Legal Representatives vs. State of

Karnataka and ors.6, State of Orissa vs. Debendra Nath Padhi 7

and Mohit alias Sonu and another vs. State of U.P. and

another8.

12. In opposition to this, Mr. Maneshinde, the learned Counsel

for respondent No.2, submitted that the application deserves to

be dismissed on the ground of suppression of facts. Inviting the

attention of the Court to the averments in ground No.3 of the

application to the effect that the first informant was not made a

party in the proceedings before the learned Magistrate and the

Court of Session, Mr. Maneshinde submitted that, the said

assertion is a positive mis-statement of facts. Copies of the

application preferred by the first informant before the Court of

the learned Magistrate seeking permission to assist the learned

APP and the Vakalatnama filed therein, were pressed into

service to show that the first informant was fully aware of the

proceedings.

13. Mr. Maneshinde countered the submissions on behalf of

the applicant that it was incumbent on the revisional court to

hear the first informant under sub-section (2) of Section 401 of

6 Criminal Appeal Nos.1281-82/2018.

7 (2005) 1 SCC 568.

8 Criminal Appeal No.814/2013, 1/7/2013.

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the Code, 1973. The decisions rendered by this Court and relied

upon by the applicant, according to Mr. Maneshinde, do not

constitute good law as in none of the decisions, this Court had

noted the judgment of the Supreme Court in the case of A. K.

Subbaiah and others vs. State of Karnataka and others 9. In the

said case, the Supreme Court has enunciated in clear and

explicit terms that in a revision application the complainant is

not a necessary party.

14. Mr. Maneshinde submitted that following the aforesaid

judgment in the case of A. K. Subbaiah (supra) the Delhi High

Court in a recent pronouncement in the case of Vipul Gupta

and S. P. Gupta vs. State and another10 repelled an identical

contention. It has in terms been enunciated that the expression

'other person' appearing in sub-section (2) of Section 401 does

not include a complainant in a revision.

15. The aforesaid submissions now fall for consideration. At

the outset, it must be noted that this Court does not profess to

delve into the merits of the matter and judge the impugned

order on the touchstone as to whether the Court of Session

correctly exercised the revisional jurisdiction. The legality and

correctness of the impugned order is proposed to be tested on

9 (1987) 4 SCC 557.

10 2021 SCC Online Del 3917.

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the anvil as to whether the impugned order suffers from such

procedural irregularity as to cause miscarriage of justice.

16. Under Section 397, the Code confers concurrent revisional

powers on the High Court and the Sessions Judge. Section

399(1) of the Code declares that in the case of any proceeding

the record of which has been called for by himself, the Sessions

Judge may exercise all or any of the powers which may be

exercised by the High Court under sub-section (1) of Section

401. The relevant part of Section 401 reads as under:

"Section 401 High Court's powers of revisions. - (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence."

17. Section 403 of the Code reads as under:

"403. Option of Court to hear parties. - Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader."

18. The controversy sought to be raised in the instant

application revolves around the import of the term 'other person'

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employed in sub-section (2) of Section 401 and the larger

question as to whether a victim has a right to be heard in a

proceeding, which may entail the consequence of termination of

the prosecution initiated at his instance.

19. I propose to explore the answers from two perspectives.

One, the position that emanates from statutory prescription,

especially under Section 401(2) of the Code. Two, the extent of

the right of the 'victim' to participate in the proceedings initiated

at his instance.

20. First, the aspect of opportunity of hearing to the victim

within the bounds of Section 401(2) of the Code. On a plain

reading, the text of sub-section (2) of Section 401 implies that

the revisional court shall not pass an order to the prejudice of

the accused or other person unless he has had an opportunity

of hearing. The use of negative expression "no order" and the

word "shall", give a peremptory character to the mandate of sub-

section (2) of Section 401. The moot question that arises for

consideration is what is the import of the term 'other person'.

21. A submission was sought to be canvassed on behalf of

accused No.2 that the term 'other person' must be construed

ejusdem generis as it is preceded by the word 'accused'. The

primary purpose of the said expression, it was urged, is to

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provide an opportunity of hearing to a person who might have

been an accused before the Court of first instance, or there is a

likelihood that with the decision of the revisional court he may

become an accused.

22. The aspect of opportunity of hearing to a person, who

might become an accused came up for consideration before

Supreme Court in the case of Manharibhai Muljibhai Kakadia

and another vs. Shaileshbhai Mohanbhai Patel and others 11. The

Supreme Court enunciated that the expression "other person"

in the context of Section 401(2) means a person other than the

accused. It includes suspects or the persons alleged in the

complaint to have been involved in an offence although they may

not be termed as accused at a stage before the issuance of

process. The Supreme Court expounded the import of the right

given to "accused" or the "other person" under Section 401(2) as

under:

"48. ..... The right given to "accused" or the "other person" under Section 401(2)of being heard before the revisional court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the

11 (2012) 10 SCC 517.

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Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage."

23. The core issue that crops up for consideration is whether

the term, 'other person' is restricted to mean a person who was

an accused or there is a likelihood that he might become an

accused in the event the revision is allowed. On a plain reading,

I find it difficult to take such a constricted view of the

expression 'other person'. I am conscious that sub-section (2) of

Section 401 ends with the words, "in his own defence". It is a

well recognized principle of interpretation that no word used by

the legislature shall be considered redundant as the legislature

uses every word with a definite purpose. Though the

expression, "in his own defence" may be appear compatible with

the defence of an accused yet the generality of the expression

cannot be lost sight of.

24. It is imperative to note that in the case of Manharbhai

Muljibhai Kakadia (supra), the Three-Judge Bench, in terms

enunciated that the expression "in his own defence"

comprehends, inter alia, for the purposes of Section 401(2), in

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defence of the order which is under challenge in revision before

the Sessions Judge or the High Court.

25. In the case of A. K. Subbaiah (supra), on which a strong

reliance was placed on behalf of accused No.2, the complaint

was filed by the State Government on the basis of a sanction by

the Public Prosecutor under Section 199(2) of the Code as one of

the persons defamed was the Director General of Police, State of

Karnataka. The petitioners therein had filed a criminal writ

petition before the High Court of Karnataka to quash the order

of issue of process. The petitioners had joined the Director

General of Police, Karnataka and the then Chief Minister of

Karnataka as respondent Nos.2 and 3. The High Court while

admitting the petition had directed the deletion of the names of

respondent Nos.2 and 3 holding that they were not necessary

parties to the proceedings.

26. In the aforesaid backdrop, the Supreme Court held that

respondent Nos.2 and 3 were not the necessary parties. The

Supreme Court negated the contention of respondent Nos.2 and

3 based on sub-section (2) of Section 401 of the Code by

observing as under:

"12. It is not in dispute that these two respondents Nos. 2 and 3 were not parties before the court below. Learned counsel for the appellants contended that the proceedings have been launched by the State Govt. on behalf of

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respondent No. 2 and therefore indirectly respondent No. 2 being the complainant is a party to the proceedings. That is too tall a proposition. The prosecution is launched by the State Government and before the court below i.e. the trial court the only parties are the petitioners who are accused persons and the State Govt. which stands in the place of a complain- ant. There are prosecution witnesses and there may even be defence witnesses. But the witnesses are not parties to the proceedings and admittedly these two respondents who have been deleted by the impugned order of the High Court were not parties before the court below.

13. Learned counsel laid much emphasis on the provisions contained in sub-section (2) of Section 401. ........

Sub-section (2) of this section talks of a situation where an order is being passed against any person and it was contend- ed by the learned counsel that the section not only talks of accused persons but also of "or other person unless he has had an opportunity of being heard." Apparently this sub- clause contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Section 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party. Learned counsel for the appellants was not in a position to contend that even if any contention of the appellants is accepted and the High Court accepts the revision petition as it is, there will be any situation where an order may be passed against these two respondents or they may be joined as parties to the proceedings. Reference to Section 401(2) is of no consequence so far as these two respondents are concerned. ........

15. It is therefore clear that when the issue of process is challenged in the revision petition before the High Court what the High Court is expected to see is as to whether the complaint and the papers accompanying the complaint prima facie indicate that an offence is made out. If so, the Court below was right in issuing process against the accused persons and such proceedings can not be quashed; if the complaint and the papers accompanying the complaint, in the opinion of the High Court are such which do not prima facie disclose an offence then it will be open to the High Court to entertain the revision and quash the proceedings."

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27. In the case of Vipul Gupta (supra), the Delhi High Court,

following the aforesaid pronouncement observed as under:

"12. A bare perusal of Section 401(2) Cr P C would show other person must be akin to an accused who can participate in the proceedings. The phrase in his own defence in clause 2 of Section 401 Cr P C strengthens this belief. The complainant is never heard in his defence and hence the word "other person‟ referred to in Section 401 Cr referred to in Section 401 Cr P C is a person akin or similarly placed to an accused. Section 403 Cr P C is also to be read in consonance with Section 401 Cr P C as it starts with the word "otherwise expressly provided by this Code‟ referred to in Section 401 Cr. ........

18. Thus as is seen above „other person‟ referred to in Section 401 Cr does not include a complainant in revision. This is a State prosecution and at the highest the complainant can be a witness to the proceedings and can participate through learned APP for the Sate but cannot be a party to the revision petition. The judgments relied upon by the respondents did not consider A.K. Subhaiah‟ referred to in Section 401 Crs (supra). I agree with the petitioner if we allow the complainant to participate before the Session's it shall change the entire nature of the proceedings from criminal to civil and hence shall hamper independence of prosecution. The complainant can at best assist the prosecution, though prosecution in such a case has to make an independent call."

28. Interestingly, while setting aside the order passed by the

revisional Court directing the complainant to be joined as a

party respondent, the Delhi High Court had allowed the

complainant therein to appear before the revisional court. The

observations in paragraph 20 read as under:

"20. Thus, in the circumstances, the impugned order passed by the learned Revisional Court is set aside. However, this shall not disentitle the complainant to appear before the learned Revisional Court in the pending revision petitions and to assist the learned APP for the State and/or plead their case through the learned APP."

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29. Evidently, the facts in the case of A. K. Subbaiah (supra)

were quite distinct. Under Section 199(2) of the Code, where an

offence falling under Chapter XXI of the Penal Code was alleged

to have been committed against the person holding a public

office in respect of his conduct in discharge of his public

functions, a Court of Session may take cognizance of such

offence without the case being committed to it, upon a

complaint in writing made by the Public Prosecutor. There are

other conditions stipulated by Section 199 for lodging the

complaint and in the matter of taking cognizance. Thus, a

special procedure is prescribed in prosecution for defamation of

public functionaries in respect of their conduct in discharge of

public functions.

30. In a prosecution for defamation of public functionaries

holding specified posts, it is the State which takes on the

responsibility of prosecution. However, there is no embargo on

the right of the person who is allegedly defamed, to

independently prosecute the offences. Sub-section (6) of Section

199 thus clarifies that nothing in the said section shall affect

the right of the person against whom the offence is alleged to

have been committed, to make a complaint in respect of that

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offence before a Magistrate having jurisdiction or the power of

such Magistrate to take cognizance of such complaint.

31. The ratio of the decision in the case of A. K. Subbaiah

(supra) in my considered view is required to be construed in the

light of the peculiar facts of the said case. I find it rather

difficult to accede to the submission that A. K. Subbaiah (supra)

lays down in no certain terms that the expression 'other person'

can under no circumstances be construed to include the first

informant/complainant. The said expression, in my humble

opinion, is elastic enough to include a complainant/first

informant if the order which may be passed by the revisional

court has the potential to cause prejudice to the complainant -

first informant. Such potentiality of prejudice is imminent when

there is a reasonable prospect of the very proceedings initiated

at the instance of the first informant - complainant being

terminated by the order of the revisional court.

32. The matter can be looked at from a slightly different

perspective. In view of the pronouncement of the Supreme

Court in the case of Bhagwant Singh vs. Commissioner of Police

and Another12, where after the investigation, the Investigating

Officer files a report to the effect that no offence is made out, it

12 (1985) 2 Supreme Court Cases 537.

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is incumbent upon the Magistrate to give an opportunity of

hearing to the first informant. He is entitled to file a protest

petition and satisfy the learned Magistrate that either the

material on record is sufficient to take cognizance of the

offences or further investigation is warranted.

33. Bhagwant Singh (supra) recognises the interest of the first

informant in the proceedings in following words:

"4. ........ Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2) (ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. The Court is accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2) (i) of Section 173 decides not to take cognizance of the offence and to drop the proceedings 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 of being heard at the time of consideration of the report."

34. If the first informant is entitled to an opportunity of

hearing where the investigating agency files a report that no

offence is made out, a fortiori the first informant must get an

opportunity to contest the revisional proceedings which seeks to

set aside an order of the Court of first instance whereby either

process is issued or a plea for discharge has been rejected.

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35. This leads me to the consideration on the aspect of

opportunity of hearing from the standpoint of the victim having

a right to participate in the prosecution. Even before the Code

was amended by the Amending Act, 2009 by inserting the

definition of "victim" and conferring the right on the victim to

prefer an appeal, a holistic reading of the provisions of the Code

indicated that in the justice dispensation system the victim was

not to be totally ignored. It is one thing to say that it is the

State which takes upon itself the responsibility to prosecute the

offenders and bring them to justice and a completely different

thing to assert that the victim shall not be allowed to participate

in the proceedings, albeit within the parameters of the

provisions of the Code, even when there is a prospect of

termination of the underlying proceedings.

36. In the case of J. K. International vs. State (Govt. of NCT of

Delhi) and others13, the Supreme Court observed as under:

"9. 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 sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not

13 2001(3) SCC 462.

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altogether debarred from participating in the trial. This can be discerned from Section 301(2) of the Code which reads thus:

"301. (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the public Prosecutor or Assistant Public prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."

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 courts, 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.

11. In view of such a scheme as delineated above how can it be said that the aggrieved private person must keep himself outside the corridors of the Court when the case involving his grievance regarding the offence alleged to have been committed by the persons arrayed as accused is tried or considered by the Court. In this context it is appropriate to mention that when the trial is before a magistrate court the scope of any other private person intending to participate in the conduct of the prosecution is still wider. This can be noticed from Section 302 of the Code which reads thus:

"302. (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate- General or Government Advocate or a public prosecutor or Assistant Public prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader."

12. The private person who is permitted to conduct prosecution in the magistrates court can engage a counsel

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to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrates courts, as the right of such private individual to participate in the conduct of prosecution in the sessions court is very much restricted and is made subject to the control of the Public Prosecutor. 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 an aggrieved private person is not altogether to be eclipsed from the scenario when 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 them."

37. Following the aforesaid pronouncement, this Court in the

case of Kalyani vs. State of Maharashtra14 set aside the order of

the revisional court which was passed without providing an

opportunity of hearing to the complainant. Referring to an

earlier decision in the case of Shriram Nagordhar Mahajan and

ors. vs. State of Maharashtra and anr. 15 it was observed that in

view of the provisions contained in Section 401(2) of the Code, it

is necessary for the revisional court to hear the person likely to

be affected before the order is passed to the prejudice of such

person.

14 2011 SCC Online Bom 1528.

15 2006 Cri LJ 2216.

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38. In the case of Prakash Sheth (supra) another learned

Single Judge, after noting the judgments of the Supreme Court

in the cases of Manharibhai Muljibhai Kakadia (supra) and J.

K. International (supra), observed that if ultimately revision

petition is allowed then the criminal proceedings initiated by the

first informant would be quashed by granting discharge to

accused therein. In that view of the matter, the first informant

is certainly entitled for hearing in the revision petition claiming

discharge by accused.

39. In the case of Sundeep Kumar Bafna vs. State of

Maharashtra and another16 the Supreme Court considered the

role of Public Prosecutor and private Counsel in prosecution and

after adverting to the judgments in the cases of Bhagwant Singh

(supra), J. K. International (supra) and Shiv Kumar vs. Hukum

Chand17 culled out the legal position as under:

"32. The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the Trial so that his interests

16 (2014) 16 Supreme Court Cases 623.

17 (1999) 7 SCC 467.

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in the prosecution are not prejudiced or jeopardized. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likely to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing. ....."

(emphasis supplied)

40. In the context of the growing recognition of the rights of

the victim, what should be the approach of the Courts. In the

case of Mallikarjun Kodagali (supra) the Supreme Court

delineated the approach to be adopted as under:

"The rights of victims, and indeed victimololgy, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard."

(emphasis supplied)

41. Evidently, the definition of the 'victim' is quite wide and

expansive. It means any person who has suffered any loss or

injury caused by reason of the act or omission of the accused.

The Parliament has taken care to further expand the definition

by including victim's guardian or legal heir. The approach of the

Court ought to be one which advances the legislative intent.

42. It may be apposite to conclude with the judgment of the

Supreme Court in the case of Jagjeet Singh (supra), wherein the

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Three-Judge Bench of the Supreme court emphasized in clear

and explicit terms as under:

"23. A 'victim' within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a 'victim' has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that 'victim' and 'complainant/informant' are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a 'victim', for even a stranger to the act of crime can be an 'informant', and similarly, a 'victim' need not be the complainant or informant of a felony."

(emphasis supplied)

43. In view of the aforesaid exposition of law, it may not be

permissible to construe expression 'other person' in a restricted

sense, as propounded on behalf of accused No.2.

44. The fact that the first informant had sought leave to assist

the prosecution, by filing an application before the learned

Magistrate, if properly construed, evinces the interest of the first

informant in the prosecution. The first informant thus deserved

an opportunity of hearing.

45. The impugned order thus deserves to be quashed and set

aside as its effect was to terminate the proceedings qua accused

No.2, without providing an opportunity of hearing to the first

informant. I am, therefore, inclined to allow the application and

remand the matter back to the revisional court for a decision

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afresh after providing an opportunity of hearing to the first

informant.

46. Hence, the following order:

:ORDER:

(i)          Application stands allowed.

(ii)         The impugned order stands quashed and set aside.

(iii)        The revision application is restored to the file of the

             learned Additional Sessions Judge, Pune.

(iv)         The learned Additional Sessions Judge is requested to

decide the revision application afresh after providing an

opportunity of hearing to the first informant.

(v) By way of abundant caution, it is clarified that this Court

has not entered into the merits of the matter and the

Revisional Court shall decide the revision application on

its own merits and in accordance with law.