Gujarat High Court
Bharat A Patel - Director Of M/S Hytaisun ... vs Mahendrabhai Naranbhai Patel & 6 on 24 September, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
R/CR.MA/3875/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 3875 of 2013
With
SPECIAL CRIMINAL APPLICATION NO. 3429 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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01. Whether Reporters of Local Papers may be allowed to see the Yes
judgment?
02. To be referred to the Reporter or not? Yes
03. Whether their Lordships wish to see the fair copy of the No
judgment?
04. Whether this case involves a substantial question of law as to the No
interpretation of the constitution of India, 1950 or any order made
thereunder?
05. Whether it is to be circulated to the civil judge? No
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BHARAT A PATEL - DIRECTOR OF M/S HYTAISUN MAGNETICS LTD....Applicant(s)
Versus
MAHENDRABHAI NARANBHAI PATEL & 6....Respondent(s)
================================================================
Appearance:
MR P M THAKKAR, SENIOR ADVOCATE WITH MR RJ GOSWAMI, ADVOCATE for the
Applicant(s) No. 1
MR BHARGAV BHATT, ADVOCATE WITH MR RAJESH R DEWAL, ADVOCATE for
Respondent No.1
MS REETA CHANDARANA, APP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/09/2013
ORAL JUDGMENT
1. In present application, the applicant has prayed, inter alia, that:
1 R/CR.MA/3875/2013 JUDGMENT
"17(B) To join the applicant as party respondent no.7
in the Special Criminal Application No.3429/12 and in the alternative applicant be heard while hearing of Special Criminal Application No.3429/12."
1.1 The applicant of present application is named as one of the accused persons in a complaint in connection with which the petition being Special Criminal Application No.3429 of 2012 (hereinafter referred to as 'main petition'), is filed by present opponent - original complainant.
1.2 The said main petition is filed at the stage when,and with the allegation, inter alia, that the complaint submitted by him on 11.7.2012 is not registered in accordance with the provisions in the Code. The opponent of present application is the petitioner in the main petition and he is also the complainant of the subject complaint.
1.3 The applicant wants to join; as party respondent, in the said main petition and he also claims right of hearing in the said main petition.
2. In view of the request made in present application, it would be appropriate to also take into account the relief prayed for by present opponent (i.e. petitioner) in the said main petition, which reads thus:
"14(a) Directing the respondent authorities herein to forthwith register FIR under the provisions of section 154 of Cr.P.C. in connection with the complaint dated 4.8.2012 which are AnnexureA and K respectively for the offences as enumerated therein and against the persons who are shown as 2 R/CR.MA/3875/2013 JUDGMENT accused in the said complaint and thereafter be pleased to further direct them to carry out the investigation as per procedure of law and in accordance with law and be further pleased to quash and set aside the report/communication dated 19.11.12 by the Senior Police Inspector, Navrangpura Police Station as well as the communication dated 20.11.12 which are AnnexureL collectively;
(b) Pending the hearing and final disposal ... ... ... ;
(c) ... ... ... ... ... ;
(d) ... ... ... ... ... ;
(e) Be pleased to direct the respondent to deal with the
complaint of the petitioner in accordance with the provisions of Chapter XII of Code of Criminal Procedure, 1973 as well as under the rules prescribed in Gujarat Police Manual, 1975. Further be pleased to quash and set aside all the proceedings in nature of inquiry report which is submitted de horse the manner and method of provisions of Code.
(f) Be pleased to direct the Respondent No.7 or any other person subordinate to respondent No.7 to inquire the conduct of the Respondent No.8 in relation to investigation carried out by him, specifically in regards to facts highlighted at Para 10(E) and matters incidental to the said Para."
3. So as to justify and support the request made in present application, the applicant has averred, inter alia, that:
"14. The applicant submits that the applicant is required to be joined as party respondent so that true and correct facts can be brought on record before this Hon'ble Court since the original petitioner i.e. respondent no.1 has not brought on record the true and correct facts of the case therefore in the interest of justice the applicant be joined as party respondent and be heard by this Hon'ble Court."
4. Mr.Thakkar, learned senior counsel for the applicant submitted that the applicant's name is mentioned in the complaint submitted by the present opponent (i.e. original petitioner in main petition) and that upon considering the case of the petitioner and the request made in the petition, if the Court 3 R/CR.MA/3875/2013 JUDGMENT were to grant the request made in the main petition, then it would affect the applicant herein because his name is mentioned as the accused in the complaint and that, therefore, he is interested party in the main petition, hence in the interest of justice, the applicant may be allowed to join the proceedings of the said main petition. Learned senior counsel for the applicant also contended that the petitioner, i.e. original complainant has not mentioned and not disclosed the correct and complete facts and the applicant herein would want to demonstrate before the Court that actually, any cognizable offence is not committed. It is also contended that alleged offence is not committed by the applicant and the complaint said to have been submitted by the complainant is abuse of process of law. Mr.Thakkar, learned senior counsel also submitted that if the applicant is not allowed to join the proceedings and is not granted opportunity of hearing, his interest would be adversely affected. So as to support and justify his request, learned advocate for the applicant relied on the observations made in Divine Retreat Centre vs. State of Kerala [(2008) 3 SCC 542], Sakiri Vasu vs. State of U.P. [2008 (2) GLH 269], Aleque Padamsee vs. Union of India [(2007) 6 SCC 171], Hari Singh vs. State of U.P. [(2006) 5 SCC 733], Minu Kumari vs. State of Bihar [(2006) 4 SCC 359], Gangadhar Janardhan Mhatre vs. State of Maharashtra [(2004) 7 SCC 768], All India Institute of Medical Science Employees Union (Regd.) through its President vs. Union of India [(1996 11 SCC 258].
4R/CR.MA/3875/2013 JUDGMENT 4.1 Per contra, Mr.Bhatt, learned advocate for
the respondent has opposed the application and the request made by the applicant and submitted that when the complaint is not even registered in accordance with provisions in the Code, the applicant, as of yet cannot be termed as accused. Without prejudice to the said contention, Mr.Bhatt, learned advocate submitted that even otherwise the applicant, at this stage, is merely an accused and that, therefore, he has no locus standi to prefer this or such application and/or to claim any right of hearing at this stage. He further submitted that the opponent herein, i.e. the petitioner in main petition has approached the Court with limited request, viz. the complaint may be registered in accordance with the provisions of the Code and investigation in pursuance of the complaint may be undertaken in accordance with the provisions of the Code and direction for inquiry into the conduct of the concerned officer as regards the actiontaken on the complaint submitted by the petitioner on 11.7.2012 may be passed and in such petition, the accused person has no locus and that, therefore, the request may be rejected. Mr.Bhatt, learned advocate for the opponent
- complainant submitted that at this stage of the proceedings and in light of the nature and scope of the petition, this application is absolutely premature and without locus standi and consequently, the application does not deserve to be considered. Mr.Bhatt, learned advocate for the respondent also submitted that the decisions relied on by learned 5 R/CR.MA/3875/2013 JUDGMENT senior counsel for applicant are not applicable and do not help the case of the applicant. Mr.Bhatt, learned advocate for the respondent relied on the decision in case of Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Patel [(2012) 10 SCC 517].
5. Heard Mr.Thakkar, learned senior counsel with Mr.Goswami, learned advocate for the applicant and Mr.Bhatt, learned advocate for Mr.Dewal, learned advocate for the respondent and Ms.Chandarana, learned APP for the respondent State and I have also considered the material on record.
5.1 Before proceedings further, it is appropriate to mention and clarify that this hearing and present order are confined to the applicant's demand in present application viz. that he may be joined as party respondent in the main petition and that he should be heard, i.e. he demands right of hearing.
5.2 At this stage and before proceeding further, it is necessary to also clarify that though, under order dated 13.3.2013, the Court had observed that the application and the main petition may be heard together, since learned counsel for both the sides have restricted their submissions to the subject matter of present application, the hearing of this application and this order are confined only to the application and the request made therein. However, having regard to the said order dated 13.3.2013 and 6 R/CR.MA/3875/2013 JUDGMENT the request and submissions by learned senior counsel for the applicant and learned advocate for the respondent - complainant, the application is treated as admitted and is heard finally. So as to avoid any confusion and technical issues and to complete the formality, formally Rule is issued and its service is waived by learned APP and learned advocate for the opponent and with consent of the learned advocates, the application is taken up for final hearing and decision.
6. In this background, the questions which arise are whether the applicant, whose name is mentioned in the complaint as one of the accused persons, can claim right of hearing at the stage of complaint or at preinvestigation stage and/or during and before completion of investigation and whether the request to join the applicant as party respondent in the said main petition is maintainable.
7. So as to support the applicant's demand and his submissions, Mr. Thakkar, learned Senior Counsel for the applicant relied on below mentioned observations by Hon'ble Apex Court:
(a) Mr.Thakkar, learned senior counsel relied on the observations made in paragraph No.4 and 5 of the decision in case of All India Institute (supra), wherein Hon'ble Apex Court considered the provisions under Section 154 and then observed that:
"4. When the information is laid with the police but 7 R/CR.MA/3875/2013 JUDGMENT no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under ChapterXII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, empowered to dismiss the complaint under Section 203 of the Code. In case he finds that he complain/evidence recorded prima facie discloses offence, he is empowered to take cognisance of the offence and would issue process to the accused.
5. In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. The High Court, therefore, though for different reasons, was justified in refusing to grant the relief as sought for."
In the said decision, the Apex Court addressed different issue in light of different facts.
(b) Mr. Thakkar, learned Senior Counsel for the applicant next relied on the observations in paragraph Nos.14 and 15 in the decision in case between Gangadhar Janardhan (supra) which read thus:
"14. When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the 8 R/CR.MA/3875/2013 JUDGMENT offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and Others, [1997] Supreme Court Cases (Crl.) 303. It was specifically observed that a writ petition in such cases is not to be entertained.
15. The inevitable conclusion is that the High Court's order does not suffer from any infirmity. The writ application was not the proper remedy, and without availing the remedy available under the code, the appellant could not have approached the High Court by filing a Writ application.
The Apex Court summarised the factual background thus:
"1. The appellant calls in question legality of the order passed by a Division Bench of the Bombay High Court dismissing the Criminal Writ Petition No. 1013 of 1997 filed by the appellant. The writ petition under Article 226 of the Constitution of India, 1950 (in short the "Constitution") was filed with the following prayers:
"To call for record and proceedings of Sessions Case No. 62/ 89 in Cr. No. 257/87 pending before J.M.F.C. Vasai for consideration. To issue writ of mandamus and not any other writ, order or direction to transfer the investigation of Cr. No. 257/87 from State CID to any other impartial investigating agency and/or to Senior P.I. Manickpur Police Station, Vasai under the supervision of Superintendent of Police, Thane (Rural). To issue a writ of mandamus and/or any other writ, order or direction in the nature of writ of mandamus calling upon the Sessions Judge, Palghar to try and dispose of Sessions Case No. 62/ 89 within 3 months from the date of committing the case to Sessions Court. To direct the learned J.M.F.C. Vasai to discharge the four adivasis accused in the Sessions Case No. 303/89 and commit the present Respondent Nos. 2 to 9 to Sessions Court for trial. If it is found just and proper the concerned authorities may be directed to take disciplinary action against the judicial and police officer to avoid the miscarriage of justice in future. Petitioner may be awarded the costs of this petition. To pass any other order which Your Lordship deem fit in the interest of justice."
(c) Learned Senior Counsel then relied on paragraphs No.13 and 14 of the decision in case of 9 R/CR.MA/3875/2013 JUDGMENT Minu Kumari (supra), which read thus:
"13. When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and others (1996 (11) SCC 582). It was specifically observed that a writ petition in such cases is not to be entertained.
14. The above position was highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors."
The factual background in the decision is summarised thus:
"3. Factual position in essence is as follows:
On the written report of informant Dhrup Narain Dubey, father of respondents 2 and 3, case for alleged commission of offences punishable under Sections 341, 323 and 435 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') was registered vide Raghunath Pur P. S. case No.7/99, dated 2081999. It was alleged that accused persons named in the FIR assaulted the informant and others. However, the police after investigation submitted chargesheet wherein three of the ladies accused were found to be not involved in the case. The police submitted charge sheet only against Harendra Dubey and Sheo Kumar Dubey. The chargesheet was placed before the learned Chief Judicial Magistrate (in short the 'CJM') who by his order dated 1521999 took cognizance of the offence and directed issuance of processes against accused Sheo Kumar Dubey, Harendra Dubey, and appellants Minu Kumari and Runjhun Kumari on the ground that there is a prima facie case against them for the offences punishable u/Ss. 341, 323 and 435 read with Section 34, IPC. The learned CJM also ordered for issuance of summons and made over the case to the court of Judicial Magistrate, 1st Class for favour of disposal.10
R/CR.MA/3875/2013 JUDGMENT
4. However, on behalf of appellants Minu Kumari and Runjhun Kumari a petition was filed before the Court of learned CJM praying therein that due to clerical error the names of the appellants have also been mentioned in the order dated 152 1999 and cognizance was also taken and issuance of summons was also ordered so far as they are concerned. The learned CJM on the above petition got a Miscellaneous Case No. 37/99 registered and by order dated 551999 he called for the record from the court of the Magistrate, where the Trial No.795/1999 was pending. The learned CJM heard learned counsel for the appellants and ordered to strike of their names.
5. The order passed by learned CJM was assailed before learned First Additional District and Sessions Judge, Siwan who set aside the order holding that the learned CJM did not have any power, muchless inherent power to recall or review his order. ... ... ...
6. Appellants questioned correctness of the order by filing a petition under Section 482 of the Code which came to be dismissed... ... ..."
(d) Learned Senior Counsel for the applicant then relied on paragraphs No.4 and 5 om the decision in case of Hari Singh (supra), which read thus:
"4. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Others [(1996) 11 SCC 582]. It was specifically observed that a writ petition in such cases is not to be entertained."
The Apex Court summarised the factual backgrounds thus:
11R/CR.MA/3875/2013 JUDGMENT "1. This petition was filed under Article 32 of the Constitution of India, 1950 (in short the 'Constitution') is for a direction to conduct enquiry by the Central Bureau of Investigation (in short the 'CBI') into the murder of one Yashvir Singh, son of the petitioner. The allegation is that though First Information Report (in short the 'FIR') has been lodged with the police to the effect that said Yashvir Singh has been murdered and has not committed suicide, because of the pressure of some influencial people, police has not taken any positive steps, and on the contrary the petitioner is being harassed and threatened by certain persons. As culled out from the petition, said Yashvir Singh was posted as Additional Commissioner of Gorakhpur, Uttar Pradesh and was found dead in his official residence on 19th January, 2006. Petitioner made a grievance that the police officials in collusion with some relatives more particularly inlaws of the deceased Yashvir Singh are projecting it as a case of suicide. It is stated that the petitioner has made several representations to various authorities, but without any avail. It is pointed out that the Superintendent of Police had directed the officer in charge of the concerned police station to enquire into the matter in view of the allegations made by the petitioner. But it is the grievance of the petitioner that no action has been taken purportedly on the basis of the pressure exercised by some influential people who were inimical to the deceased though they are related to him. In essence grievance is that no action is being taken on the First Information Report lodged by the petitioner."
(e) Mr.Thakkar, learned Senior Counsel for the applicant relied on paragraphs No.25 to 27 in the decision by Hon'ble Apex Court in case of Sakiri Vasu (supra), which read thus:
"25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of 12 R/CR.MA/3875/2013 JUDGMENT Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C."
The Apex Court summarised the factual background thus:
"6. The appellant who is the father of Major Ravinshankar alleged that in fact it was a case of murder and not suicide. He alleged that in the Mathura unit of the Army there was rampant corruption about which Major Ravishankar came to know and he made oral complaints about it to his superiors and also to his father. According to the appellant. It was for this reason that his son was murdered.
7. The first Court of Inquiry was held by the Army which gave its report in September, 2003 stating that it was a case of suicide. The appellant was not satisfied with the findings of this Court of Inquiry and hence on 22.4.2004 he made a representation to the then Chief of the Army Staff, General N.C. Vij, as a result of which another Court of Inquiry was held. However, the second Court of Inquiry came to the same conclusion as that of the first inquiry namely, that it was a case of suicide.
8. Aggrieved, a writ petition was filed in the High Court which was dismissed by the impugned judgment. Hence this appeal.
9. The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigation (in short CBI). Since his prayer was rejected by the High Court, hence this appeal by way of special leave."13
R/CR.MA/3875/2013 JUDGMENT It is noticed that though in the said decision Hon'ble Apex Court addressed similar situation, i.e. where the complainant had taken out proceedings under Article 226 and 227 with grievance that any action has not been taken for registration of the complaint, however, in the said decision also the issue related to the claim of accused for right of hearing before the complaint is registered and/or at preinvestigation stage or during and before completion of investigation did not fall for consideration by Apex Court.
(f) Mr. Thakkar, learned Senior Counsel for the applicant then relied on below mentioned observation by Hon'ble Apex Court in paragraphs No.7 and 8 in the decision in case of Aleque Padamsee (supra).
"7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medi cal Sciences's case (supra) and reiterated in Gangadhar's case (supra) the remedy available is as set out above by fil ing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Insti tute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumari's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable of fence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was reiterated in Lallan Chaudhary and Ors. v. State of Bihar (AIR 2006 SC 3376). The course available, when the police 14 R/CR.MA/3875/2013 JUDGMENT does not carry out the statutory require ments under Section 154 was directly in is sue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra).The correct position in law, there fore, is that the police officials ought to reg ister the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code. It appears that in the present case initially the case was tagged by order dated 24.2.2003 with WP(C) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were delinked from the aforesaid writ petitions.
8. The writ petitions are finally disposed of with the following directions:
(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.
(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.
(3) So far as nongrant of sanction aspect is concerned, it is for the concerned government to deal with the prayer.
The concerned government would do well to deal with the matter within three months from the date of receipt of this order.
(4) We make it clear that we have not ex pressed any opinion on the merits of the case."
In this decision also the Hon'ble Apex Court was not considering the issue whether the accused has any right of hearing at the stage of complaint or at preinvestigation stage or during and before completion of investigation or in proceedings seeking direction for registering of complaint.
In the abovementioned decisions which are referred to and relied upon by learned senior counsel, not only the facts are different than the facts of present case but the said decisions do not address the issue on hand in present case and the observations on 15 R/CR.MA/3875/2013 JUDGMENT which learned senior counsel relied are made in light of the facts in the cited decisions which are different from the facts of this case. Hence, the said decisions do not assist the applicant's case.
8. After referring to the abovementioned decisions, Mr. Thakkar, learned Senior Counsel for the applicant relied on the observation in paragraph No.51 of the decision in case of Divine Retreat Centre vs. State of Kerala [(2008) 3 SCC 542], which reads thus:
"51. The order directing the investigation on the basis of such vague and indefinite allegations undoubtedly is in the teeth of principles of natural justice. It was, however, submitted that accused gets a right of hearing only after submission of the chargesheet, before a charge is framed or the accused is discharged vide Sections 227 & 228 and 239 and 240 Cr.P.C. The appellant is not an accused and, therefore, it was not entitled for any notice from the High Court before passing of the impugned order. We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case on hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one#s own reputation. In our view, the impugned order of the High Court directing enquiry and investigation into allegations in respect of which not even any complaint/information has been lodged with the police is violative of principles of natural justice."
Relying on the above observations, Mr.Thakkar, learned senior counsel submitted that the application may be allowed.
8.1 In this context it is relevant to mention that the set of facts in the cited decision are 16 R/CR.MA/3875/2013 JUDGMENT different from the facts of the case on hand and the observations on which the learned senior counsel placed relevance are made in light of and on account of the facts of the case. Moreover the facts of the said case are not only markedly different from the set of facts of present case but are, as observed by the Apex Court, peculiar of its own kind and that is clearly mentioned in paragraph No.54 which read thus:
"Here is the case where no information has been given to the police by any informant alleging commission of any cognizable offence by appellant and the persons associated with the appellant institution. It is a peculiar case of its own kind where an anonymous petition is sent directly in the name of a Judge of the High Court, which was suo motu taken up as a proceeding under Section 482 CrPC. The High Court ought not to have entertained such a petition for taking the same on file under Section 482 CrPC." (Emphasis supplied) 8.2 In the said case there was anonymous petition. Moreover in such anonymous petition any information alleging commission of any cognizable offence by the appellant or persons associated with appellant institution was not given by any informant. In the said case the Hon'ble Court had initiated suo motu proceedings and directed inquiry into allegations in respect of which no complaint had been lodged.
8.3 In present case, the complaint is allegedly submitted to the police by present opponent since last about one year but it is allegedly not registered in accordance with the procedure prescribed in the Code and the scope of the petition is defined by the relief prayed for viz. for direction to register the complaint in accordance and to initiate appropriate 17 R/CR.MA/3875/2013 JUDGMENT action against the concerned police officer. Moreover, in paragraph No.46 of the decision, Apex Court has observed, inter alia:
"On a careful perusal of the order passed by the learned Judge, we find that the learned Judge initiated suo motu proceedings without even examining as to whether the contents of the anonymous letter and material sent along with it disclosed any prima facie case for ordering an investigation.." (Emphasis supplied) 8.4 Thus, in the cited case, unlike present case, suo motu proceedings were initiated by the Court despite the fact that on earlier occasion the High Court itself had closed the probe which is evident from the observations in paragraph No.36 of the decision where the Apex Court has observed:
"Be it noted that Thankappan, J. vide order dated 2212 2005 having perused the file including the petition submitted by the victim directed the matter to be closed as it required no further probe"
8.5 The Apex Court also noticed that before initiating suo motu proceedings, it was not examined, as observed by Apex Court, as to whether the contents of the anonymous letter prima facie disclosed case for investigation or not. In paragraph No.14 observations as to the said aspect are made, which read thus:
"Be it noted that the complaint/petition dated 27102005 received from Mini Varghese by the Registry on 21112005 was placed in the same file based on which Thankappan, J. initially ordered an inquiry. Thereafter the entire matter was placed before Thankappan, J. on 22122005 itself and the learned Judge directed the closure of the matter thus:
"No further probe is necessary. Close the file". This fact was also brought to the notice of Padmanabhan Nair, J."
8.6 It was in light of such peculiar facts and circumstances that the abovequoted observations in 18 R/CR.MA/3875/2013 JUDGMENT paragraph No.51 of the decision are made.
9. At this stage, it will not be out of place to mention that subsequently, i.e. in 2012 in the decision in the case between Samaj Parivartan Samudaya & Ors. vs. State of Karnataka & Ors. [(2012) 3 SCC (Cri.) 365], Hon'ble Court observed that to grant hearing to the suspect or affected parties is matter of judicial discretion and not an absolute rule of law.
9.1 In this context, it will be appropriate, at this stage, to refer to the observations by Hon'ble Apex Court in paragraph No.50 of said decision which read thus:
"50. ... ... ... There is no provision in the CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. The CBI, as already noticed, may even conduct pre registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialized agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners."
9.2 In the said decision, Hon'ble Apex Court has observed '... ... ... the Court may in its discretion grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. ...'. Hon'ble Apex Court has, in the said 19 R/CR.MA/3875/2013 JUDGMENT decision, explained and clarified that the issue related to hearing the suspect or affected party, is primarily in judicial discretion and not absolute rule of law.
9.3 The said observation by Hon'ble Apex Court brings out that even in the exceptional cases mentioned by Hon'ble Apex Court, it is still judicial discretion of the Court and not absolute rule of law to grant hearing to the suspect or affected party.
10. In this context, it would also be relevant at this stage to refer to the observations in the decision in case of Manharibhai Muljibhai Kakadia [(2012) 10 SCC 517], wherein Bench of three Hon'ble Judges of Apex Court considered several previous decisions and observed that:
"46. The legal position is fairly wellsettled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. ... ... ... The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.
53. ... ... ... In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate 20 R/CR.MA/3875/2013 JUDGMENT dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled."
10.1 Thus, in the said decision in 2012, Hon'ble Apex Court has explained and emphasized that as a matter of law upto the stage of issuance of process the accused cannot claim any right of hearing.
11. It would not be out of place and inappropriate to mention two points with reference to the abovereferred decisions, viz. (a) the facts in the said decisions are different than the facts of present case; and (b) the issue on hand in present case (i.e. whether the person named as accused in a complaint can claim right to join as party respondent (in a petition taken out by the complainant (whose complaint is not registered since about one year) with a request for direction to register the complaint and direction to take appropriate action against concerned police officer) and whether he can claim right to be heard in such petition at the stage of complaint or preinvestigation stage or during and before completion of investigation) was not the issue under consideration in the cited casesdecisions.
12. So as to appreciate the applicant's demand in present application and the opponent's objection, it is necessary and relevant to recall and keep in 21 R/CR.MA/3875/2013 JUDGMENT focus that the opponent of present application has preferred the main petition at the stage when his complaint is not registered and he has prayed, in the main petition, for direction to register the complaint submitted by him and for direction for investigation and appropriate action against concerned officer, and it is in petition preferred at such stage and seeking such relief that the applicant claims right to join, in such petition, as party respondent and the applicant also claims right of hearing in such petition.
12.1 On this count, i.e. the case where the accused claims right of hearing, the Apex Court has observed that the accused has no right to be heard at the stage of investigation and until the investigation is concluded.
12.2 For examining the applicant's demand (i.e. accused's demand) viz. for joining as party respondent and being heard in the said main petition, it would be useful to refer to some relevant observations by Hon'ble Apex court.
12.3 In this context, reference can be made to the observations by the Hon'ble Apex Court in the decision in case between:
(a) Narender G. Goel v. State of Maharashtra & Anr. [(2009) 6 SCC 65], Hon'ble Apex Court observed, inter alia, that:22
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"11.
It is well settled
that the accused has no right to
be heard at the stage
of
investigation. The prosecution
will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case . In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v . State of A.P. This Court observed:(SCC p.743, para11) "11 ....There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard."
(b) The Hon'ble Apex Court has observed in the decision in the case between Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors. [(1976) 3 SCC 736] that: "4. .....In fact it is well settled in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not." (Emphasis supplied)
(c) In the case between Union of India & Anr. v.
W.N.Chadha [1993 Supp (4) SCC 260], the Hon'ble Apex Court observed that: "90. Under the scheme of Chapter XII of the CrPC, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
92. . . . . .Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions.
98. If prior notice and an opportunity of hearing are to 23 R/CR.MA/3875/2013 JUDGMENT be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and selfdefeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary." (Emphasis supplied)
(d) In the case between Central Bureau of Investigation & Anr. v. Rajesh Gandhi & Anr. [(1996) 11 SCC 253], the Hon'ble Apex Court observed that: "8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision...." (Emphasis supplied)
(e) A useful reference may also be made to the observation in paragraph No.11 in the decision in case between Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj vs. State of A.P. [(1999) 5 SCC 740], which reads thus:
"11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made . Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the magistrate with such an obligation." (Emphasis supplied) 12.4 It emerges from the observations by Hon'ble Apex Court that the accused person does not have any say or any right of hearing in the matter of and at the stage of investigation and/or in the matter as to 24 R/CR.MA/3875/2013 JUDGMENT whether the investigation should be initiated and carried out or not or in the matter about the manner and method of investigation or to claim as to how and by whom the investigation should be carried on.
12.5 Thus, the accused has no locus standi and no right to be heard at the stage of complaint and from preinvestigation stage and until the investigation is concluded and until the Court decides the question whether process should be issued or not. The procedure for investigation does not envisage or attract such a course in absence of any statutory observation. There is nothing in Section 173(8) which would oblige the Court to hear the accused before any direction is made.
12.6 One of the main reasons - besides the reason that the Code does not prescribe such requirement - for such view is in view of the fact that the investigating officer does not adjudicate or decide any matter or issue except collecting the material for ascertaining whether a prima facie case is made out or not, question of hearing the accused does not arise and that, therefore, it cannot be said that at that stage, rule of audi alteram partem would be attracted and would superimpose an obligation to hear the accused, more so, when the statute does not expressly recognize such right. The Apex Court has precisely and succinctly explained the said situation thus:
"The question is not whether audi alteram partem is implicit but whether the occasion for its attraction exists 25 R/CR.MA/3875/2013 JUDGMENT at all".
12.7 Another important and relevant aspect is that the investigation process is exclusively in the realm of investigation officer - agency who is the sole and exclusive authority in the matters related to investigation and consequently ordinarily it is investigation agency who alone would be necessary party in the such proceedings and the accused is not and cannot be considered necessary party in the petition. At this sage, the accused does not come in picture and he has no right to claim that it is necessary party at the stage of investigation and that it should be joined as party respondent and/or to claim right of being heard.
13. In this context reference also needs to be made in paragraph Nos.77, 81, 89, 92, 95, 98, 104 and 119 by Apex Court in the decision in case between Union of India vs. W.N. Chadha (1993 Supp (4) SCC
260) wherein Hon'ble Apex Court examined, inter alia, the challenge/observation against the direction to issue letter rogatory at the request of CBI, but without hearing the respondent before the Apex court and the Apex Court observed:
"77. The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. In the present case, no such consequences have arisen from the letter rogatory. If the letter rogatory is accepted by the foreign Court and acted upon it will then disclose only the relevant. facts about the identity of the account holders, quantum of the amounts standing in the names of the individual account holders representing the credit of Bofors money and the nature of such accounts. The follow up consequences would be that the corpus of the offence would be preserved intact 26 R/CR.MA/3875/2013 JUDGMENT from preventing the withdrawal of the money from those accounts or closure of the accounts by the account holders till the merit of the case is decided.
81. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law 'lifeless; absurd, stultifying and selfdefeating or plainly contrary to the common sense of the situation' and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.
89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under S. 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram. partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but where the occasion for its attraction exists at all.
92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under S. 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under S. 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under S. 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
95. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it necessary un to make a detailed examination on this aspect 27 R/CR.MA/3875/2013 JUDGMENT except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or Seizure of any property in his possession connected with the crime unless otherwise provided under the law.
98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and selfdefeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
104. Merely because the Special Judge heard counsel for the CBI before issuing letter rogatory the respondent cannot make such a complaint that he should have also been given prior notice to present his case as we have repeatedly pointed out that the stage of investigation is only at the door. The order sought for from the Special Judge by the CBI is only for process of judicial assistance from the competent judicial authorities in the Confederation of Switzerland for investigation and collection of evidence. In such a case the accused has no right to raise the voice of opposition.
119. Sawant, J. (as he then was) while agreeing with the dismissal of the petition added his opinion stating thus :
"This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture visavis the evidence, is the stage when the evidence is sought to be tendered against him, and he can challenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petitioner cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Art. 227 of the Constitution or under S. 397 or 482 of the Code of Criminal Procedure as has been done in this case ..........." (Emphasis supplied) 13.1 Thus, even in the situation where direction to issue letter rogatory was passed by the Court hearing Counsel for CBI, the Apex Court observed that even in such cases the accused cannot claim any right of prior notice for opportunity of being heard.28
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14. From the decisions by Hon'ble Apex Court, following principles can be deduced:
(a) The investigation officer is not deciding any matter except collecting material for ascertaining whether a prima facie case is made out or not. Thus, when the investigating officer is not deciding any matter, it cannot be said that at that stage, rule of audi alteram partem would superimpose an obligation to issue a prior notice and hear the accused which the statute does not recognize or prescribe;
(b) There is nothing in Section 173(a) which would oblige the court to hear the accused before any direction is made;
(c) The rule of audi alteram partem would not be attracted unless the impugned order is shown to have deprived a person of his liberty or his property;
(d) The accused has no right to be heard at the stage of investigation;
(e) The accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. Upto the stage of issuance of process, the accused cannot claim any right of hearing;
(f) Even in cases where cognizance of an offence
29
R/CR.MA/3875/2013 JUDGMENT
is taken on a complaint notwithstanding that the said offence is triable by a magistrate or triable exclusively by the court of sessions, the accused have no right to have participation till the process is issued;
(g) The accused has no right to have any say as regards the manner and method of investigation;
(h) The distinction between criminal complaint cases at precognizance stage and postcognizance stage is important. It is only at postsummoning stage that the respondent of criminal complaint can be described/considered as accused. Therefore, at the presummoning stage, the question of right to be heard is not available to a person.
15. When present application is examined in light of the observations by Hon'ble Apex Court and the principles deducible from the said decisions and in light of the facts of the case, it clearly emerges that even if the applicant is, having regard to his submissions and contentions, considered as accused at this stage (since his name is mentioned in the complaint), he has failed to make out any case in support of the request to join the proceedings of the said main petition and/or for claiming right to be heard in the said main petition. So far as the complainant's request in the said main petition to direct the competent authority to inquire into the conduct of the concerned police officer (i.e. 30 R/CR.MA/3875/2013 JUDGMENT respondent No.8) is concerned, even otherwise the applicant cannot have any say in the matter and it would be for the concerned police officer to oppose the said request, if he desires to do so, and to make appropriate submissions. So far as the complainant's request for direction to register the complaint is concerned, it has emerged from the foregoing discussion in light of the observations by Hon'ble Apex Court that the accused has no locus standi and does not have any right to be heard at the stage of complaint and/or at preinvestigation stage and until the decision to issue process, or not, is decided.
15.1 In this context, it is appropriate to recall that the applicant wants to join as party respondent in the petition which is filed by the complainant with a grievance that his complaint is not registered in accordance with the procedure prescribed in the Code. Therefore, in the said proceedings, in light of the position which emerges from the decisions by Hon'ble Apex Court, the applicant has no locus and and he does not have any right to be heard in the said proceedings.
15.2 The investigation process is exclusively in realm of investigation officer - agency who is the sole and exclusive authority in the matters related to investigation and consequently, ordinarily, it is the investigation agency who alone would be necessary and proper party. In the present case, the investigation officers / agency are already party to the proceedings 31 R/CR.MA/3875/2013 JUDGMENT in the said main petition and the proceedings of the said main petition are being responded to by the investigation officers / agency.
15.3 Even otherwise, since the investigation officer - agency does not adjudicate or decide any matter or issue except collecting the material for ascertaining whether a prima facie case is made out, there is no justification or support for the applicant's demand in present application.
16. Thus, on overall consideration of the facts of the present case and in light of the decisions by Hon'ble Apex Court, subject application, in view of this Court, does not deserve to be accepted.
17. The applicant has failed to make out any case in support of and in justification of the request made in the application. The application, therefore, fails.
18. In view of the foregoing reasons and having regard to the observations by Hon'ble Apex Court in the above mentioned decisions and having considered the fact of the case and scope of present application, this Court is of the view that the request made by the applicant in present case does not deserve to be granted. Hence, the application is rejected.
The application fails and is accordingly rejected.
32 R/CR.MA/3875/2013 JUDGMENT
(K.M.THAKER, J.)
Bharat
33