Anil Kumar Agarwal vs The State Of Jharkhand & Ors
2022 Latest Caselaw 4412 Jhar

                                                                      Cr.M.P. No. 2223 of 2021




             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  Cr.M.P. No. 2223 of 2021

                  Anil Kumar Agarwal                  ...         Petitioner
                                       Versus
             The State of Jharkhand & Ors.            ...     Opposite Parties


          Coram:     HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

         For the Petitioner              : Ms. Amrita Sinha, Adv.
                                           Mr. Deep Basu, Adv.
                                           Mr. C. Sarkar, Adv.
                                           Ms. Madhuri N. Horo, Adv.
         For the State                   : Mr. Manoj Kumar, G.A. III


12 / 04.11.2022

Heard the parties.

This criminal miscellaneous petition has been filed invoking the jurisdiction of this court under Section 195 read with Section 340 of the Code of Criminal Procedure, 1973 with the following prayer:-

a) To hold a preliminary enquiry recording findings to in respect of the offences complained off and direct a complaint be made in writing against the Opposite Party no. 2 and the Opposite Party no. 3 by the Registrar General of this Hon'ble Court and send such complaint to the court of the jurisdictional Judicial Magistrate for necessary action and trial of the accused.

b) Or in the alternative after completion of the preliminary enquiry this Hon'ble court may direct the Opposite Party no. 2 and the Opposite Party no. 3 hererin to be taken into custody in accordance with Section 340 of the Code of Criminal Procedure, 1973 and direct the accused persons to be forwarded to the Court of the Jurisdictional Judicial Magistrate for trial in accordance with law.

Cr.M.P. No. 2223 of 2021

c) Direction upon the opposite party no. 2 herein to furnish sufficient security for appearance before the learned Judicial Magistrate and appropriate orders be passed to bind the said person to give evidence before the learned Magistrate having jurisdiction.

d) Ad-interim orders in terms of prayers above;

e) Such further order or orders and / or direction or directions be given as this Hon'ble court may deem fit and proper.

Heard the parties.

Learned counsel for the petitioner raises a preliminary objection that the opposite party nos. 2 and 3, of this petition be not given the audience and the final order in this criminal miscellaneous petition be passed without hearing them. In support of his contention, learned counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court of India in the case of Pritish v. State of Maharashtra and Others reported in 2002 (1) SCC 253 paragraph 13 and 18 of which reads as under :

"13. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings. Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry.

18. We are unable to agree with the said view of the learned Single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would-be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry (vide M.

Cr.M.P. No. 2223 of 2021

Muthuswamy v. Special Police Establishment [1985 Cri LJ 420 (Mad)] )."

Learned counsel for the petitioner next relies upon the order of the Hon'ble Supreme Court of India in Cr. Appeal no. 335 of 2020 dated 15.09.2022, reported in 2022 LiveLaw (SC) 776, wherein the Hon'ble supreme court of India has answered the question "Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code of Criminal Procedure by a Court?"

in the negative, hence, it is submitted that the learned counsel for the opposite party nos. 2 and 3 of this criminal miscellaneous petition who is present in the court today, after the opposite party nos. 2 and 3 being noticed by this court in this case, be not permitted to address the court in this case and an order in this criminal miscellaneous petition be passed without giving an opportunity to the opposite party nos. 2 and 3 to participate in the proceedings of this criminal miscellaneous petition.

Mr. Manoj Kumar, learned G.A. III appearing for the State on the other hand, opposes the preliminary objection of the learned counsel for the petitioner and submits that the petitioners himself has voluntarily made the opposite party nos. 2 and 3 parties to this criminal miscellaneous petition. It is next submitted that vide order dated 10.12.2021, notices were directed to be issued by this court to the opposite party nos. 2 and 3 and without any demur, the petitioner filed the requisites for service of notice upon opposite party nos. 2 and 3 and consequently, the notice has validly been served upon opposite party nos. 2 and 3 and in response of the said notice, the opposite party nos. 2 and 3 have appeared

Cr.M.P. No. 2223 of 2021

before this court. It next submitted by learned counsel appearing on behalf of the State that "absence of a legal obligation to offer an opportunity to be heard, to a would be accused", certainly, does not amount to "debarring the court from hearing such a person", more so, when the petitioner himself has impleaded the would be accused as opposite party nos. 2 and 3 of the criminal miscellaneous petition and the opposite party nos. 2 and 3 have appeared in response to the notice.

Having heard the submissions made at the Bar and after going through the materials in the record, this court finds force in the submission of the learned counsel for the State and this court is also of the view that "absence of any legal obligation to offer an opportunity to be heard", does not amount to "debarring the court from hearing a party to a criminal miscellaneous proceeding". It is well settled law that the court may in appropriate cases hear any person affected by the order to be passed, even though there is no legal obligation to offer opportunity of being heard to be provided that person concerned. In this case, the opposite party no.2 and 3 are present in the court through their Advocate, in response to the notice of this Court. This court does not find any prejudice being caused to the petitioner, if it hears the opposite party no.2 and 3. The petitioner has filed voluminous documents in this Criminal Miscellaneous Case. Under such circumstances this court finds it proper to hear the opposite party no.2 and 3 also. Hence, the preliminary objection raised by the petitioner is overruled.

At the stage, the learned counsel for the petitioner submits that the petitioner will file a Petition for seeking Special Leave to appeal before the Hon'ble Supreme Court of India, challenging the order passed by this court

Cr.M.P. No. 2223 of 2021

by which the preliminary objection of the petitioner has been overruled by this court today and prays for time.

Prayer is allowed as the last chance.

List this petition after eight weeks.

(ANIL KUMAR CHOUDHARY, J.) Smita/-