Delhi High Court
Anil Kumar Malik vs Delhi Administration, Delhi on 12 May, 1993
Equivalent citations: 1993(26)DRJ290
JUDGMENT Sat Pal, J.
(1) This petition for grant of bail under section 439 Criminal Procedure Code (hereinafter referred to as 'the Code') has been filed by Anil Kumar Malik.During the pendency of the bail petition an application being Cr.M.508/93 has been filed on behalf of the complainant Mrs. Kusum Malik for impleading her in the array of respondents. The aforesaid application has been strongly opposed on behalf of the petitioner. It has, therefore, become necessary to decide the question; whether applicant has a right to intervene and be heard in opposition to the petition for bail.
(2) First Information Report in the present case has been registered against the petitioner under sections 376/384/506/34 Indian Penal Code at the instance of the complainant Mrs. Kusum Malik. It has been alleged in the complaint that the complainant was married to one 0m Prakash Malik, who happens to be a cousin of the petitioner Anil Kumar Malik, in January, 1981. It is further stated in the complaint that before marriage the complainant wrote some letters to the petitioner and after her marriage with Om Prakash Malik had forgotton all about these letters written to Anil Kumar Malik. It is alleged that in May 1986 when there was no one else at the house of the complainant, the petitioner came to the house and showed her the letters and compelled her to submit to his lust under threat of showing these letters to her husband. It is also alleged that the complainant paid Rs.50,000.00 thrice to the petitioner out of fear of the threats being given to her. It is further alleged that the petitioner even brought some other persons along with him and made the complainant to submit herself to satisfy the lust of those persons and he continued black mailing her and raping her against her consent up to August 1992.
(3) It is further alleged that finally the complainant decided to tell her husband all these facts and on hearing these facts, her husband became unconscious and had to be taken to ahospital. Thereafter, the complainant decided to murder the petitioner and then to commit suicide but she was not successful. Finally the complainant lodged a report with the police against the petitioner on 10th January, 1993 and the First Information Report was registered against the petitioner.
(4) Mr. Grover, learned counsel appearing on behalf of the petitioner has strongly objected to give any hearing to the learned counsel for the complainant and submitted that the complainant has no right to be heard in a petition filed by an accused for his release on bail. Learned counsel, however, submitted that an aggrieved party can approach the High Court for cancellation of bail. He drew my attention to Sections 301(2) and 302 of the Code and contended that the complainant party may bring facts to the notice of the State counsel and apart from that, the complainant party has got no right to be heard particularly when the State is duly represented. In support of his contentions he placed reliance on the following judgments: 1.)Kuldip Singh vs State of Haryana, 1980 Crl.L.J. 1159. 2.) Sarwar Kumar vs State of Haryana, 1989 (2) Recent Crime Reporter 469. 3.) Indu Bala, Ajesh Kumar vs State, 1990 Rlr 131. 4.) Praveen Malhotra vs State (Delhi Administration), 41 (1990) DLT418. 5) In Re: Rakhaan Ojha alias Rakhal Chandra Ojha, 1988 Crl.LJ. 278. and 6) Thakur Ram and others vs The State of 'Bihar, .
(5) Mr. Mathur, learned Senior Advocate, appearing on behalf of the complainant, however, submitted that Sections 300 and 301 of the Code are applicable only when the case is under inqury, trial or appeal and the aforesaid provisions are not applicable to the proceedings before the High Court for grant of bail because High Court is not a court of original jurisdiction in criminal matters. Learned counsel also drew my attention to Section 198A of the Code and contended that in a case of an offence punishable under section 498A, Indian Penal Code a Court can take cognizance only on a police report or upon a complaint made by the person aggrieved by the offence or by her father, mother and other relations. He also drew my attention to Sections 154(2), 157(2) and sub-section(2)(ii) of section 173 of the Code in terms of which informant has been given certain rights under the Code. He, therefore, contended that the aggrieved party has a right to be heard in the present case.
(6) In support of his contention Mr. Mathur placed reliance on a Supreme Court judgment in Bhagwant Singh vs. Commissioner of Police, . In this case it was held by the Supreme Court that in a case where the magistrate to whom are port is forwarded under sub-section (2) of Section 173 of the Code decides not to take cognizance of the offence and drop the proceedings, the magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was further held that though under the provision of the Code or from the principle of natural justice, no obligation is cast on the magistrate to issue notice to the injured person or relation of the deceased (other than the informant) for providing such person an opportunity to be heard but such person can appear before the magistrate and make his submission when the report is considered by the magistrate for the purpose of deciding of the action he should take on the report. Relying on this judgment Mr. Mathur contended that in case the informant or other relations appear before the Court of Sessions or High Court when an application of the accused for grant of bail is being considered, he should be allowed to make his submissions before the Court. The learned counsel further submitted that in case of Indu Bala (Supra) the judgment in the case of Bhagwant Singh (supra) was not brought to the notice of the learned Single Judge of this Court. Learned counsel further submitted that though in the case of Praveen Malhotra (supra) it was held that the private parties have got no right to intervene and make oral arguments on the bail application filed by the accused but when the petition for bail was heard on merits, the learned Judge allowed the learned counsel for intervener to address the arguments and this is clear from the decision on merits . As regards the case of Thakur Ram (supra) learned counsel submitted that in that case the Supreme Court held that a private party cannot invoke the jurisdiction under the provisions of the Code but in the present case the jurisdiction has already been invoked by the accused and the applicant is only seeking permission of the Court to intervene in the matter.
(7) Mr. Bahri, learned counsel, appearing on behalf of the State reiterated the submissions made by Mr. Grover. He submitted that in the present case there is no allegation that the State counsel has abdicated his function and as such the private party should not be permitted to intervene into the matter.
(8) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. Section 439 of the Code does not contemplate by itself any hearing to be given to the complainant party in a police case. This question was examined by a learned Single Judge of this Court in the case of Indu Bala (supra). Relying on two judgments of Punjab & Haryana High Court in the case of Kuldip Singh (supra) and Sarwan Kumar (supra) the learned Judge of this Court held that, "as far as the application for grant of bail is concerned there is no provision made in the Criminal Procedure Code that a complainant can intervene and make any submissions independently in opposing the application for grant of bail or anticipatory bail." It was further held in this case that the counsel .or the complainant can brief the State counsel and it is only the State counsel who can be heard in opposition to these applications seeking bail. The ratio of this judgment was followed by another learned Single Judge of this Court in the case of Praveen Malhotra (supra). With respect, I am in full agreement with the law laid down in the case of Indu Bala (supra), (9) As regards the contention of Mr. Mathur, learned counsel for the applicant, that the judgment of the Supreme Court in the case of Bhagwant Singh (supra) was not brought to the notice of the learned Judges in the case of Indu Bala (supra) and Praveen Malhotra (supra), it may be pointed out that in the case of Indu Bala (supra) the learned Judge has placed reliance on the judgment of Punjab and Haryana High Court in the case of Sarwan Kumar (supra) and in the case of Sarwan Kumar (supra) the judgment of the Supreme Court in the case of Bhagwant Singh (supra) has been considered and it was held that the ratio of this judgment was not applicable in the case pertaining to grant of bail unde section 438 of the Code as the case was not of cancellation of bail or consideration of a report under section 173(2) of the Code. It may be pointed out here that the decision in the case of Bhagwant Singh (supra) cannot he made applicable to the facts of the present case as in the case of Bhagwant Singh (supra) the Supreme Court while dealing with the statutory rights of the informant under section 173(20(ii) of the Code has held that since the officer in charge of the Police Station is required to communicate to the informant the action taken by the police and the report forwarded by him to the magistrate, 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. But no such right vests in the aggrieved party when an application for giant of bail is to be considered.
(10) As regards the contention of Mr. Mathur that even in the case of Praveen Malhotra (supra), the learned counsel for the complainant was allowed to address the arguments, it may be pointed out that it was only after the learned Public Prosecutor had given his no objection for the learned counsel of the complainant to assist the Court, such permission was granted.
(11) In view of the above discussion I hold that the complainant has no right to be heard in a petition for grant of bail particularly when there is no allegation that the State counsel has abdicated his functions. Learned counsel for the counsel, however, can brief the State counsel to oppose the petition for grant of bail. Accordingly, Cr.M. 508/93 is dismissed.
(12) List Cr.M(M) 248/93 for arguments on merits on 19th May, 1993.