Madhya Pradesh High Court
Mazhar Khan vs The State Of Madhya Pradesh on 18 December, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
WA No. 1692 of 2023
(MAZHAR KHAN Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 18-12-2023
Shri Abhinav Dhanodkar, counsel for the appellant.
Shri Anand Soni, Additional Advocate General for the State.
Heard on I.A.No. 7497/2023, application for condonation of delay.
As per the office report, the appeal is time barred by 170 days.
For the reasons mentioned in the application, the same is allowed. Delay
in filing the writ appeal is hereby condoned. I.a.No. 7497/2023 stands disposed
of.
Heard on the question of admission as well as on I.A.No. 9280/2023,
application for stay.
In the present appeal, challenge is made to the order dated 17.01.2023,
passed by the learned Single Judge in M.Cr.C.No. 42867/2020 whereby the
appellant being stranger to the petition under Section 482 of the Cr.P.C. has
been saddled with exemplary cost of Rs. 40 lakhs.
A preliminary objection has been raised by the office as well as by the
learned counsel for the respondent with regard to maintainability of the appeal in
as much as against the order passed under Section 482 of the Cr.P.C. only
Special Leave Petition before the Apex Court is maintainable.
Learned counsel for the appellant submitted that in strict sense, the order
under challenge is not an order passed under Article 226 of the Constitution of
India. Nevertheless, regard being had to the nature and scope of the order, the
impugned order has been passed exercising jurisdiction under Section 482 of
the Cr.P.C. The Learned Single Judge has imposed a total cost of Rs. 40 lakhs
on the State with the liberty to recover the same from the appellant. Learned
counsel for the appellant had relied on the judgment of the Apex Court in the
case of Daffodills Pharmaceuticals Limited and Another vs. State of Uttar
Pradesh and Another, (2020) 18 SCC 550 wherein the Apex Court has held
as under:
''15. In the present case, even if one assumes that Surender Chaudhary,
the accused in the pending criminal case was involved and had sought to
indulge in objectionable activities, that ipso facto could not have
resulted in unilateral action of the kind which the State resorted to
against Daffodills, which was never granted any opportunity of hearing
or a chance to represent against the impugned order. If there is one
constant lodestar that lights the judicial horizon in this country, it is this:
that no one can be inflicted with an adverse order, without being
afforded a minimum opportunity of hearing, and prior intimation of such
a move. This principle is too well entrenched in the legal ethos of this
country to be ignored, as the State did, in this case.''
From the aforesaid, it can be seen that opportunity of hearing before
passing any adverse order is a sine qua non, therefore, ipso facto such decision
could not have been passed against the appellant who is not even party in the
petition under Section 482.
Issue notice to the respondents on payment of process fees by RAD
mode within seven working days failing which this appeal shall stand dismissed
without further reference to the Bench. Notices be made returnable within four
weeks.
So far as the prayer for interim relief is concerned, it is an admitted
position that the appellant were never heard before passing the impugned order
of recovery in their absence. In these circumstances, any recovery pursuant to
the impugned order dated 17.01.2023, so far as it relates to the imposition of
cost of Rs. 40 lakhs on the appellant, shall remain stayed till the next date of
hearing.
The question of maintainability of the writ appeal is kept open to be
argued at the time of final hearing.
Certified copy as per rules.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
vidya
