Bombay High Court
Vijay V. Chowgule vs The Public Prosecutor, State Of Goa And 2 ... on 2 September, 2024
2024:BHC-GOA:1443
2024:BHC-GOA:1443
WPCR651 AND 647-2024-F.DOC
vinita
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 651 OF 2024-FILING
MR. VIJAY V. CHOWGULE
Son of Shri. Vishwasrao Chowgule,
Chowgule House, Baina, Vasco Da Gama,
Goa-403 802. .... Petitioner.
Versus
1 THE PUBLIC PROSECUTOR,
State of Goa, Margao, Goa.
2 THE POLICE INSPECTOR,
Economic Offences Cell, Panaji,
Goa.
3 CHOWGULE AND COMPANY PVT.
LTD., Through its Authorised
representative, Harsh Shah, Having
address at Chowgule house,
Mormugao Harbour, Goa --
403803. .... Respondents.
Mr Parag Rao, Advocate along with Mr Ajay Menon and Mr Akhil
Parrikar, Advocates for the petitioner.
Mr Shailendra G. Bhobe, Public Prosecutor for the State.
Mr Rizwan Merchant, Advocate along with Mr. Gaurish Agni, Mr.
Ramiz Shaik, Mr. Nihal Kamat, Mr. Kishan Kavlekar and Mr.
Harshil Gandhi, Advocates for respondent no 3.
WITH
CRIMINAL WRIT PETITION NO. 647 OF 2024-FILING
Pradip Mahatme, son of Shri. Prabhakar
Mahatme, Aged around 72 years of age,
married, Indian National, R/o. H. No.
8/65A, Near Telephone Exchange,
Altinho, Panaji Goa. .... Petitioner.
Versus
1 The Public Prosecutor State of Goa.
Page 1 of 25
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2 The Police Inspector, Economic
Offences Cell, Panaji Goa.
3 Chowgule and Company Pvt. Ltd.,
Through its Authorised
representative, Harsh Shah, Having
address at Chowgule house,
Mormugao Harbour, Goa - 403803. .... Respondents.
Mr Shivan Desai, Advocate along with Mr Varun Bhandanker, Ms
Maria Viegas and Ms Tahira Menezes, Advocate for the petitioner.
Mr Somnath Karpe, Addl. Public Prosecutor for the State.
Mr Rizwan Merchant, Advocate along with Mr. Gaurish Agni, Mr.
Ramiz Shaik, Mr. Nihal Kamat, Mr. Kishan Kavlekar and Mr.
Harshil Gandhi, Advocates for respondent no 3.
CORAM: BHARAT P. DESHPANDE, J
Reserved on : 26th July 2024
Pronounced on : 2nd September 2024.
JUDGMENT:
1. Both the petitions are taken together as issues raised are the
same wherein respondents are also the same.
2. Rule.
3. Rule is made returnable forthwith.
4. Matters are taken up for final disposal at the admission stage
with consent of the parties.
5. Heard Mr Parag Rao, learned Advocate along with Mr Ajay
Menon and Mr Akhil Parrikar, learned counsel for the petitioner, Mr
S. G. Bhobe, learned Public Prosecutor for the State in Criminal Writ
Petition No.651/2024/F.
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6. Heard Mr Shivan Desai, learned counsel along with Mr Varun
Bhandanker, Ms Maria Viegas and Ms Tahira Menezes, learned
counsel for the petitioner, Mr Somnath Karpe, learned Addl. Public
Prosecutor for the State in Criminal Writ Petition No.647/2024/F.
7. Heard Mr Rizwan Merchant, learned Counsel along with Mr.
Gaurish Agni, Mr. Ramiz Shaik, Mr. Nihal Kamat, Mr. Kishan
Kavlekar and Mr. Harshil Gandhi, Advocates in both the petitions for
respondent no 3.
8. The challenge in both these petitions is limited to the
impugned order and more specifically permitting respondent no. 3 to
file reply and thereafter to file rejoinder by the petitioners, to an
application for anticipatory bail, while allowing an application for
intervention.
9. Mr Rao and Mr Desai appearing for the petitioners clearly
submitted that they have no objection for intervention application
filed by respondent no.3 before the trial Court, however, they are
seriously objecting to other reliefs granted to respondent no. 3 i.e.
permitting respondent no. 3 by filing reply/affidavits and documents
for the purpose of opposing anticipatory bail application.
10. Both the learned counsel would submit that they have no
objection for intervention by resplendent no.3 which could permit
respondent no.3 to orally argue the matter and even file written
submissions. However, their main objection is to the permission
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granted by the learned trial Court allowing respondent no. 3 to file a
reply/affidavit.
11. Both the learned counsel would submit that it is now well
settled that the complainant/victim is entitled to participate in the
proceedings including an application for bail. However, such
participation is restricted to submitting oral arguments or at the most
filing written submissions which must be based on the case of the
prosecution/Investigating Agency.
12. It is their contention that if independent reply/affidavit is
allowed to be filed by an intervenor, it will be clearly against the
settled proposition of law and would be an opportunity to
demonstrate parallel investigation thereby providing additional
grounds/documents and even additional averments thereby opposing
the bail application and providing further grounds to arrest. They
submit that the complainant/victim cannot be allowed to conduct a
parallel investigation and produce whatever material available with
him so as to challenge the bail application. They would submit that if
such a procedure is adopted, petitioners would have to file their
counter affidavit and the main purpose of grant or refusal of bail
would be delayed. They submit that application for grant of bail or
even anticipatory bail is required to be decided urgently as it is the
question of liberty of a person.
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13. Both the learned counsel would submit that in an application
for intervention filed by respondent no.3, there are no allegations
against the Investigating Agency of any bias or not doing their job
properly. Thus petitioners fairly submitted before the trial Court that
an application for intervention could be allowed and even permission
could be granted to file written submissions.
14. Both the learned counsel would further submit that even
though the decision in the case of Jagjeet Singh was cited before
the trial Court, it has been wrongly interpreted as a Statute only
because the words used therein are "unbridled participatory right". It
is their contention that the words used in a judgment cannot be
interpreted as a Statue even if the some words are used, appropriate
meaning of such word from the dictionary meaning cannot be
labelled against if for the purpose of interpreting such judgment.
15. Both the learned counsel would submit that the scope of
participation of the victim/complainant in a bail proceedings is
limited and that too assisting a Public Prosecutor. Even oral
arguments could be submitted apart from filing written submission,
but not beyond it.
16. Both the learned counsel would submit that arrest of an
accused has to be decided only by the Investigating Agency on the
basis of facts and circumstances of each case and the complainant
/victim will not be having any say in it. They would further submit
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that grounds which are raised by the Investigating Agency while
opposing the bail must be as per the need of Investigating Machinery
and complainant/victim cannot be permitted to add more grounds to
it specifically when there are no allegations against the Investigating
Agency to show any favour or bias in the matter.
17. It is further submitted by the learned counsel for the
petitioners that participation of the complainant/victim is restricted
and such intervenor who is not a party to the proceedings cannot be
allowed to file pleadings which includes affidavit in reply along with
documents. It is their contention that intervention is completely
different from impleading a person as a party to the proceedings. An
intervenor may support either of the party or oppose them
simultaneously. However, such intervenor cannot be considered as
entitled to claim any relief and hence, there is no question of filing
pleadings by way of reply/affidavit.
18. Mr P. Rao, learned counsel for the petitioner relied upon
following judgments:
1. Ramesh Kumar Vs State of NCT Delhi1
2. Saraswati Industrial Syndicate Ltd Vs
Commissioner of Income Tax Haryana,
Rohtak2
3. State of T.N. and Another Vs Board of
Trustees of the Port of Madras3
4. Jagjeet Singh and others VS Ashish
1 (2023) 7 SCC 461
2 (1999) 3 SCC 141
3 (1999) 4 SCC 630
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Mishra and another4
5. X Vs State of Maharashtra and another5
6. Vinay Poddar Vs The State of
Maharashtra6
7. Wazid Ansari Vs The Police Inspector
and ors. 7
19. Mr S. Desai, learned counsel for the petitioner relied upon
following judgments:
1. Jagjeet Singh and others VS Ashish
Mishra and another.
2. Sandeep Kumar Bafna Vs State of
Maharashtra and anr. 8
3. State of Goa Vs Rosario Ferrao9
4. Wazid Ansari Vs Police Inspector and
ors. 10
5. X Vs State of Maharashtra and anr. 11
6. Yuvraj Sitaram Dhamale Vs State of
Maharashtra and ors. 12
7. Sheela Chowgule Vs Vijay Chowgule and
ors. 13
8. Goan Real Estate & Construction Ltd. &
Anr. Vs. Union of India, 14
9. Ashwani Kumar Singh Vs UP Public
Service Commission and ors.15
4 (2022) 9 SCC 321
5 2023 SCC online SC 279
6 2008 SCC Online 1389
7 2024 SCC Online Bom 2292
8 (2014) 16 SCC 632
9 (2022) SCC Online Bom 4059
10 (2024) SCC Online Bom 2292.
11(2023) LiveLaw (SC) 205
12 2024 SCC OnLine 354.
14 (2010) 5 SCC 388
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20. Mr Bhobe, learned Public Prosecutor and Mr Karpe, learned
Addl. Public Prosecutor while supporting the case of the petitioners
would submit that judgment in the case of Jagjeet Singh (supra) is
in respect of a victim whereas application in the present matter is by
complainant and the entire matter is based on the documents. It is
their contention that words victim and complainant are required to
be interpreted differently and cannot be at the same pedestal.
Learned Public Prosecutor would submit that intervenor cannot be
permitted to produce documents and by-passing the Investigating
Officer or learned Public Prosecutor appearing in the said matter.
21. The learned Public Prosecutor relied upon following decisions:-
1. Kashinath Jairam Shetye Vs Ramakant
Mahadev Sawant and ors.16
2. Shri Aftab Savanoor Vs Mr Vishwas
Gurav17
22. Per contra Mr Merchant appearing for respondent no.3 in both
these matters would first of all submit that both these petitions are
not tenable as impugned order is passed by concession of the parties.
He would submit that both the petitioners fairly conceded to the
15 (2003) 11 SCC 584
16 2013 ALL MR(Cri) 861
17 Stamp Number(Application) No. 2386/2019 dated 10.7.2019 and other
connected matters.
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application for intervention and even accepted that respondent no.3
could file written submissions and advanced oral arguments.
23. Mr Merchant would submit that reply affidavit along with
documents is must since the petitioners in their application for grant
of anticipatory bail suppressed material facts, which respondent no. 3
wishes to bring on record so as to decide the bail application
effectively.
24. Mr Merchant would submit that the participatory right given to
the complainant itself shows that such participation should be
effective and not merely the presence of the complainant/victim at
the time of deciding the bail application. Such effective participation
includes filing of an affidavit in reply along with documents so as to
expose accused persons.
25. Mr Merchant would submit that admittedly the application is
filed for intervention though in the prayer clause it is claimed as
impleading respondent no.3 in the matter. He clarified that the
application is only for intervention. Once such application is allowed
and that too on concession, it is the choice of respondent no.3 to file
reply in whatever form i.e. written arguments or reply/affidavit. He
would submit that petitioners cannot dictate terms or control
respondent no. 3 as to what he should file in the Court.
26. Mr Merchant while supporting the order of the learned trial
Court would submit that proper interpretation of the Jagjeet Singh
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case is found in the impugned order which is not perverse or illegal
and thus petitions are required to be rejected.
27. Mr Merchant would further submits that though a detailed
complaint was filed, the Investigating Agency failed to register the
offence and only when complainant approached the High Court with
a prayer to transfer the investigation to CBI, assurance was given to
the High Court and only thereafter offence was registered. He would
therefore submit that such inaction on the part of the Investigating
Agency would be clearly required to be demonstrated while objecting
to the bail application. Finally he claimed that since the impugned
order is passed on concession, petitions need to be rejected.
28. Rival contentions fall for consideration.
29. Prayers in Criminal Writ Petition No. 651/2024/F reads thus:-
"a. Grant a writ of certiorari or a writ in the nature
of certiorari or any other appropriate writ, order
or direction to quash and set aside the Impugned
Order dated 23rd July 2024 passed by the
Additional Sessions Judge-3, South Goa, Margao,
in Anticipatory Bail Application No. 103/2024, to
the limited extent that the same permits the
Respondent No. 3 to file a reply in the
Anticipatory Bail Application No. 103/2024.
b. Pass such other and further orders, as this
Honourable Court deems fit and proper."
30. Prayers in Criminal Writ Petition No. 647/2024/F reads thus:-
"a. Grant a writ of certiorari or a writ in the nature
of certiorari or any other appropriate writ, order
or direction to quash and set aside the Impugned
Order dated 23rd July 2024, passed by the
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Additional Sessions Judge-3, South Goa, Margao,
in Anticipatory Bail Application No. 102/2024, to
the limited extent that the same permits the
Respondent No. 3 to file a reply in the
Anticipatory Bail Application No. 102/2024.
b. Pending hearing and final disposal of this petition,
stay further proceedings in Anticipatory Bail
Application No. 102/2024 before the Additional
Sessions Judge-3, South Goa, Margao.
c. Pass such other and further orders, as this
Honourable Court deems fit and proper."
31. Perusal of the prayer clause in both these petitions as quoted
above would clearly reveal that the limited relief claimed therein is
against the permission granted to respondent no.3 to file a
reply/affidavit in anticipatory bail applications pending before the
trial Court.
32. Learned counsel appearing for the petitioners would fairly
submit that they gave no objection to the application for intervention
and even they are having no objection for respondent no.3 to advance
oral arguments and/or to file written submissions to anticipatory bail
applications. Their main objection is to the permission granted to
respondent no. 3 to file reply/affidavit to the bail applications which,
according to them, would be travelling beyond the scope of
intervention and settled proposition of law laid down by the Apex
Court in connection with participation of the complainant/victim at
the relevant stage.
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33. Section 2(wa) of Cr.P.C. defines "Victim" means a person who
has suffered any loss or injury caused by reason of the Act or
omission for which accused person has been charged and the
expression "Victim" includes his or her guardian or legal heir"
34. A complaint was lodged by Mr Harsh Shah authorised
representative of respondent no. 3 vide its complaint dated 8.4.2024
alleging commission of offence punishable under Sections 420, 409,
488A, 120B read with 34 of IPC against the present petitioners and
others. Said complaint runs into 37 pages and includes various
documents as found disclosed therein. The Investigating Agency after
examining the said complaint, registered it under crime no.1/2024 on
14.6.2024. It is no doubt true that there is delay in registration of the
said offence. However, it is equally true that the complaint along
with documents discloses various details of the dispute or the matter
including alleged commission of offence. In fact the complaint and
the documents attached therein runs into 353 pages.
35. Once the information of a cognizable case is given to the Police
Iinspector as provided under Section 154 of Cr.P.C., he is bound to
register it and thereafter start investigation as provided under
Sections 156 and 157 of Cr.P.C.
36. It is therefore clear from the record that respondent no. 3 is the
complainant and not the victim as mentioned in Section 2(wa) of
Cr.P.C. Said provision of Section 2(wa) was basically incorporated in
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Cr.P.C. so that victim of offence of bodily injuries including rape
could be given chance to take part at every stage of the investigation
or the trial.
37. It is no doubt true that the word "person" appearing in the said
definition clause could be interpreted and include as a legal person.
However at this stage and in order to interpret the decision referred
by the parties, it is necessary to restrict term "victim" as a person who
is a victim of bodily injuries or even mainly the victim of a rape.
38. In the case of Jagjeet Singh (supra) the Apex Court was
basically dealing with the case of Sections 302 and 307 of IPC along
with other offences of IPC wherein the accused was granted bail by
the High Court. In that context, the word "Victim" appears in section
2(wa) of Cr.P.C. was discussed and interpreted. The question before
the Apex Court as discussed in paragraph 14 was, whether a victim as
defined under section 2(wa) of the Criminal Procedure Code, 1973 is
entitled to be heard at the stage of adjudication of bail application of
an accused?
39. The Apex Court discussed various aspects of a right of a victim
to be heard and held in paragraph 15 that "until recently, criminal law
had been viewed on a dimensional plane wherein the Courts were
required to adjudicate between the accused and the State. The 'victim'
de facto sufferer of a crime had no participation in the adjudicatory
process and was made to sit outside the Court as a mute spectator.
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However, with the recognition that the ethos of criminal justice
dispensation to prevent and punish 'crime' had surreptitiously turned
its back on the 'victim', the jurisprudence with respect to the rights of
victims to be heard and to participate in criminal proceedings began
to positively evolve."
40. Further in paragraph 18, the Apex Court observed that on the
domestic front, recent amendments to the Cr. P.C. have recognised a
victim's rights in the Indian criminal justice system and the genesis of
such rights lies in the 154th Report of the Law Commission of India.
With such changes and amendment, victim be armed with a right to
be represented by an advocate of his/her choice, or to be provided
with legal aid at the State's expense. Such right of a victim to
participate in a criminal trial is to know the status of investigation,
take necessary steps, to be heard at every crucial stage of the criminal
proceedings, including at the time of grant or cancellation of bail.
41. The Apex Court further in paragraph 20 categorically observed
that legislature had thoughtfully given a wide and expansive meaning
to the expression 'victim' which "means a person who has suffered
any loss or injury caused by reason of the act or omission for which
the accused person has been charged and the expression "victim"
includes his or her guardian or legal heir". Then the Apex Court
discussed various decisions and held in paragraphs 22, 23 and 24
thus:-
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"22. It cannot be gainsaid that the rights of a
victim under the amended CrPC are
substantive, enforceable, and are another
facet of human rights. The victim's right,
therefore, cannot be termed or construed
restrictively like a brutum fulmen [Ed. : The
literal translation from the Latin
approximates to "meaningless thunderbolt or
lightning", and is used to convey the idea of
an "empty threat" or something which is
ineffective.] . We reiterate that these rights
are totally independent, incomparable, and
are not accessory or auxiliary to those of the
State under the CrPC. The presence of "State"
in the proceedings, therefore, does not
tantamount to according a hearing to a
"victim" of the crime.
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 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.
24. The abovestated enunciations are not to be
conflated with certain statutory provisions,
such as those present in the Special Acts like
the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, where
there is a legal obligation to hear the victim at
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the time of granting bail. Instead, what must
be taken note of is that:
24.1.First, the Indian jurisprudence is
constantly evolving, whereby, the right of
victims to be heard, especially in cases
involving heinous crimes, is increasingly
being acknowledged.
24.2.Second, where the victims themselves
have come forward to participate in a
criminal proceeding, they must be accorded
with an opportunity of a fair and effective
hearing. If the right to file an appeal against
acquittal, is not accompanied with the right
to be heard at the time of deciding a bail
application, the same may result in grave
miscarriage of justice. Victims certainly
cannot be expected to be sitting on the fence
and watching the proceedings from afar,
especially when they may have legitimate
grievances. It is the solemn duty of a court to
deliver justice before the memory of an
injustice eclipses."
42. The entire submission of Mr Merchant is basically on the words
found in paragraph no.23 as quoted above and specifically "unbridled
participatory right" According to him, such words used by the Apex
Court would clearly mean that the respondent is entitled to
participate in the said proceedings and it includes filing of
reply/affidavit, documents etc.
43. However, respondent no.3 is admittedly a complainant
whereas a victim and complainant/informant are required to be
considered as two distinct and separate connotations in criminal
jurisprudence. It is not always necessary that the complainant/
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informant is a victim for the simple reason that even a stranger who
has seen or heard of a crime can be an informant. Similarly a victim
need not be a complainant or informant.
44. As submitted by learned counsel Mr Rao and Mr Desai
appearing for the petitioners and rightly so, limited amendment
carried out by inserting definition of "victim" inspite of the 154 th
report of Law Commission must be taken into account.
45. 154th report of the Law Commission recommended on the
aspect of compensatory justice to a victim under a compensation
scheme and also on the Reforms of Criminal Justice Systems by
recommending that the rights of the victim or his/her legal heir to be
impleaded as party in every criminal proceeding where charges are
punishable with 7 years imprisonment or more. Admittedly such
suggestions of the Law Commission are not accepted by the
Legislature and only the definition of the victim is incorporated.
Thus when the Legislature did not think it fit to amend the provisions
by directing the victim to be impleaded as party in every criminal
proceedings, the intention is clear that said victim could have
participation by way of intervention wherever it is not provided.
Admittedly under some Special Laws like the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, wherein
participation of the victim is must by impleading party to the
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proceedings, in other words it means intervention could be allowed
whenever such request is made.
46. Thus in Jagjeet Singh (supra), the Apex Court was dealing
with offence of Sections 302 and 307 of IPC along with other offences
and in that context discussed the definition of the victim found in
Section 2(wa) of Cr.P.C.
47. Mr Desai and Mr Rao are fully justified in arguing that a
decision passed by the Apex Court or words used therein cannot be
interpreted as a Statue. Thus even if the words "unbridled
participatory rights" used in paragraph 23 of the Jagjeet Singh,
such words "unbridled participatory rights" cannot be interpreted as
a Statue. Intention in using such words is only to demonstrate that
the victim has got participatory right from the stage of investigation
till culmination of the proceedings in an appeal or revision.
48. In the case of Sundeep Kumar Bafna (supra), the Apex
Court observed in paragraph 32 that there is no vested right granted
to a complainant or informant or aggrieved party to directly conduct
a prosecution. The Court 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 fair, free 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
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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 in the prosecution are not
prejudiced or jeopardized. Constant or even frequent interference in
the prosecution should not be encouraged as it will have a deleterious
impact on its impartiality. Magistrate or Sessions Judge if 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.
49. In the present matter, admittedly there are no allegations
against the Investigating Agency that said Agency is not conducting
the investigation in a proper manner. It is also not found in the
impugned order as observed by the concerned Court that the
prosecution is not conducting the case in a free and fair manner.
50. In the case of Ms X (supra), participation of the victim of the
case of rape at the time of anticipatory bail was discussed. In that case
the Apex Court has observed that a very casual approach adopted by
the Investigating Agency and in that context, relied upon the
observations in the case of Jagjeet Singh (supra) about
participation of the victim in the case of bail. Thus it is clear that in
the above decision, the question of participation of a victim of bodily
injury was considered and not that of the complainant.
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51. Even otherwise observations of Jagjeet Singh (supra) are
already discussed above wherein words "participatory right" will have
to be taken into consideration and whether it extends to filing of the
reply and documents as tried to be projected by respondent no.3 and
allowed by the learned trial Court is a moot question before this
Court.
52. The application was filed before the learned trial Court by
respondent no.3 is on behalf of the original complainant/intervenor
for intervention with a permission to address the Court for objecting
anticipatory bail applications. In paragraph 16 of the said application,
respondent no. 3 specifically claimed that they will be filing a detailed
reply to the anticipatory bail application. It is no doubt true that
prayer clause (a) of the said application mentions that respondent
no.3 be allowed to intervene by adding as party respondent to the
application. Mr Merchant fairly submitted that such application is
restricted to the aspect of intervention and not of allowing them to
join as party respondent. Similarly prayer clause (c) is to allow the
original complainant to advance arguments in addition to the
arguments which would be advanced by the learned Public
Prosecutor and also to file an affidavit in reply.
53. Petitioners by filing their reply/affidavit to the intervention
application, specifically contended that they have no objection to
allow the complainant to intervene but objection is to allow them to
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file affidavit in reply which would be prejudicial to the case and
against the settled proposition of law.
54. Thus the only question which is necessary to consider in the
present proceedings is whether respondent no.3 could be allowed to
file a reply/affidavit along with documents.
55. Admittedly, an investigation is in progress. Respondent
no.3/complainant is very well entitled to produce whatever
documents they have in connection with the said offence, before the
Investigating Agency.
56. The application for anticipatory bail is required to be decided
on the basis of allegations made in the FIR and investigation carried
out as on date in the matter. The prerogative of the Investigating
Agency whether custodial interrogation is required or not, cannot be
snatched by a complainant who is only required to assist the
Investigating Agency by providing necessary documents.
57. The trial Court is only required to decide whether petitioners
are entitled to the relief claimed in the said applications and not
further. While doing so, the learned trial Court is entitled to receive a
reply from the Investigating Agency and to peruse the investigating
papers including the case diary. Arguments are required to be
advanced by the Investigating Agency and that is through learned
Public Prosecutor appearing before the Court. It is no doubt true
that respondent no.3 being a complainant is allowed to intervene.
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However an intervenor cannot be allowed to plead or to file a reply
along with documents. Respondent no.3 is not a party to the
proceedings. Similarly complainant/respondent no.3 is entitled to
assist the prosecution and the Investigating Agency and also to
advance original submissions apart from the submission of the
learned Public Prosecutor in the matter. In fact a detailed reply is
filed by the Investigating Officer in the matter opposing bail
application.
58. Contention of the petitioners is justified to the fact that if
respondent no.3 is allowed to file an affidavit and produce
documents, it would certainly enlarge the scope of the matter and it
would not be in the hands of the learned Public Prosecutor since such
additional documents could be beyond the documents collected by
the Investigating Agency. Such a procedure is certainly not available
under Cr.P.C. At the most respondent no.3 who is a complainant
could be permitted to assist the prosecution and also submit oral
arguments.
59. In the case of Ramesh Kumar (supra), which is the recent
judgment and subsequent to decision of Jagjeet Singh, the Apex
Court was considering the power of grant of bail under Section 438 of
Cr.PC. and in that context observed in paragraphs 32 and 33 as
under:-
"32. Before concluding, we need to dispose of IA
No. 94276 of 2023. It is an application for
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intervention at the instance of the
complainants, who seek to assist the Court on
the ground that any order passed on the
appeal without giving opportunity of hearing
to them would cause grave prejudice.
33 We hold that at this stage, the complainants
have no right of audience before this Court or
even the High Court having regard to the
nature of offence alleged to have been
committed by the appellant unless, of course, a
situation for compounding of the offence under
Section 420IPC, with the permission of the
court, arises."
60. Mr Rao while applying observations with regard to application
for intervention, would submit that such intervention could be
allowed without filing any pleadings.
61. In the case of Saraswati Industrial Syndicate Ltd
(supra), the Apex Court on paragraph 12 observed that the only
purpose of granting intervention is to entitle the intervenor to
address arguments in support of one or other side.
62. Learned Trial Court tried to interpret the words found in the
case of Jagjeet Singh (supra) and more specifically words
"unbridled participatory right" as a Statute which is not permissible.
It is no doubt true that the victim is having right to participate, such
word as interpreted and defined under section 2(wa) of the Cr.P.C. is
normally used in cases of bodily offences wherein the victim has no
representation before the concerned Court and more particularly at
the time of grant or refusal of bail.
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63. In the present matter, offences are basically of cheating and
relied only on documents. It is no doubt true that respondent no.3 is
a complainant and a company represented by its authorised officer,
cannot be equated with the word "victim" as found mentioned in
section 2(wa) of Cr.P.C. Company though a legal person is required to
be represented by its authorised officer.
64. Besides, intervention application is already allowed and
petitioners have already submitted that they have no objection if the
complainant/respondent no.3 advances oral arguments or even file
written submissions.
65. As far as maintainability of the petitions is concerned,
objections raised by respondent no 3 needs to be out rightly rejected.
It is no doubt true that the petitioners clearly disclosed their
intention before the learned trial Court to allow the intervention by
advancing oral arguments or by filing written submissions. It is not at
all the case of the petitioners that they have consented for filing of the
reply/affidavit by respondent no. 3. The petitioners are certainly
aggrieved by the orders of the trial Court granting such prayer which
they are entitled to challenge in the present proceedings. Accordingly,
such objection cannot be accepted.
66. For all the above reasons, allowing the respondent no.3 to file
reply/affidavit along with documents for opposing anticipatory bail
would not be justified in the given circumstances. Such an order
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passed by the trial Court therefore requires interference. It is made
clear that respondent no.3 is entitled to advance oral arguments and
even file written submissions but cannot be allowed to file
reply/affidavit along with documents which would be clearly taking
over the right of the Investigating Agency and allowing a parallel
investigation in the matter. Right of complainant/respondent no. 3
to file such a reply/affidavit along with documents, therefore cannot
be allowed to be retained.
67. The impugned order as far as allowing respondent no. 3 to file
reply/affidavit and thereafter directing the petitioners to file
rejoinder thereto, is quashed and set aside. Remaining observations
of the learned trial Court are maintained.
68. Both the above petitions are accordingly disposed of in the
above terms.
69. Rule is made absolute in the above terms.
BHARAT P. DESHPANDE, J.
2nd September 2024
