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.
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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. Page 2 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC
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 Page 3 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 Page 5 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 Page 6 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 354.13 WP No. 88 of 2024.
14 (2010) 5 SCC 388 Page 7 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC
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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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 Page 9 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 Page 10 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 Page 12 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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. Page 13 of 25
2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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:-
Page 14 of 25
2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC "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 Page 15 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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/ Page 16 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 Page 17 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 Page 18 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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. Page 19 of 25
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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 Page 20 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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. Page 21 of 25
2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 Page 22 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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 Page 24 of 25 2nd September 2024 ::: Uploaded on - 03/09/2024 ::: Downloaded on - 03/09/2024 22:22:47 ::: WPCR651 AND 647-2024-F.DOC 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.
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