Gujarat High Court
Rameshbhai Dayabhai Patel vs Dharmesh on 21 February, 2009
Author: K.M.Thaker
Bench: K.M.Thaker
RAMESHBHAI DAYABHAI PATEL....Applicant(s)V/SDHARMESH BHIKHAJI THAKOR R/CR.MA/17335/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 17335 of 2012 In SPECIAL CRIMINAL APPLICATION NO. 3143 of 2012 With SPECIAL CRIMINAL APPLICATION NO. 3143 of 2012 ================================================================ RAMESHBHAI DAYABHAI PATEL....Applicant(s) Versus DHARMESH BHIKHAJI THAKOR & 4....Respondent(s) ================================================================ Appearance:
MR PARTHIV B SHAH, ADVOCATE for the Applicant(s) No. 1 MR AJ YAGNIK, ADVOCATE for the Respondent(s) No. 1 PUBLIC PROSECUTOR for the Respondent(s) No. 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE K.M.THAKER Date : 09 /01/2013 CAV ORDER The applicants, who are the original accused in M Case No.2 of 2009 in complaint dated 21.2.2009, have taken out present application and have prayed, inter alia, that:
13(B) YOUR LORDSHIPS be pleased to implead the applicant as party respondent no.5 or in the alternative, the applicant may be given an opportunity of hearing in Special Criminal Application No.3143 of 2012, in the interest of justice;
2. The applicants claim that they may be impleaded as party respondent No.5 in the proceedings related to the above mentioned petition i.e. Special Criminal Application No.3143 of 2012.
2.1 The said petition has been filed by the original complainant who has alleged commission of offence punishable under Sections 420, 465, 467, 468, 471, 506(2), 294(b) r.w. Section 120(B) of Indian Penal Code. In the said complaint, present applicant is the accused No.2.
2.2 In the above mentioned petition i.e. Special Criminal Application No.3143 of 2012, the original complainant has prayed, inter alia, that :-
9(A) to direct the respondent nos. 2, 3 and 4 and respondent no.4 in particular towards administrative side to ensure that hearing of the summary report in Summary No.107/2009 submitted on M-Case No.2/2009 of Sarkhej Police Station arising from Criminal Complaint of the petitioner bearing unnumbered Complaint 18/2009, bearing Criminal Inquiry No.98/2009 is concluded and order thereupon be passed in accordance with law within a stipulated period of three months;
(B) to direct the respondents no.2 and 3 to provide assistance to the respondent no.4 Court in completing hearing of the summary report in Summary No.107/2009 submitted on M-Case No.2/2009 of Sarkhej Police Station arising from Criminal Complaint of the petitioner bearing unnu7mbered Complaint 18/2009, bearing Criminal Inquiry No.98/2009 is concluded and order thereupon be passed in accordance with law within a stipulated period of three months;
(C) during the pendency and/or final disposal of the present petition be pleased to direct respondent no.4 to place report as to why hearing of the summary report in Summary No.107/2009 submitted on M-Case No.2/2009 of Sarkhej Police Station arising from Criminal Complaint of the petitioner bearing unnumbered Complaint 18/2009, bearing Criminal Inquiry No.98/2009 has not been completed and order thereupon is passed till date.
It is in the said petition seeking above quoted relief that present applicant wants to be joined as respondent No.5.
3. Mr. Shalin Mehta, learned Senior Counsel, has appeared with Mr. P.B.Shah, learned advocate for the applicant (i.e. original opponent accused No.2 in M. Case No.2 of 2009) and Mr. A.J.Yagnik, learned advocate has appeared for the original complainant (i.e. original petitioner in Special Criminal Application No.3143 of 2012).
4. The original complainant has preferred the above mentioned petition seeking relief in form of directions to the respondent Nos. 2, 3 and 4 to conclude the hearing of M. Case No.2 of 2009 arising from the complaint submitted by the complainant petitioner (which is numbered as complaint No.18 of 2009 bearing criminal inquiry No.98 of 2009) and to pass appropriate order in accordance with law within period of 3 months and also to issue directions to provide assistance to respondent No.4 Court in completing the hearing of summary filed in M. Case No.2 of 2009.
5. It is during the pendency of the said petition seeking above mentioned relief that the original accused No.2 in the said complaint (filed by the petitioner of Special Criminal Application No.3143 of 2012) has taken out present application praying that he may be impleaded as party respondent No.5 in the said petition and also seeking right of hearing at the time of hearing of the petition.
6. Mr. Mehta, learned Senior Counsel for the applicant, submitted, inter alia, that the applicant has already submitted an application for opportunity of being heard in M. Case No.2 of 2009 which is presently pending before the learned Judicial Magistrate First Class and since present petition is taken out by original complainant during pendency of the said M. Case No.2 of 2009 and the summary submitted in the said case as well as during, and despite, pendency of the application for opportunity of hearing in the said proceedings, the original accused No.2 has taken out present application. According to the applicant, present petition causes prejudice to the applicant s rights and therefore, present application has been taken out. It is also claimed by learned Senior Counsel for the applicants that the petitioner complainant has made various allegations in the petition against public prosecutor who is impleaded as opponent No.3. It is also claimed that now, the applicant apprehends that because of such allegations, the matter may not be conducted impartially. Therefore, the applicant requests for being joined as party respondent (respondent No.5) in the proceedings of present petition and for right of hearing.
7. It emerges from the record and the submissions by learned counsel for the applicant, the petitioner and learned APP that the original complainant has filed a complaint about alleged commission of offence punishable under Sections 420, 465, 467, 468, 471, 506(2), 294(b) r.w. Section 120(B) of Indian Penal Code.
The said complaint came to be registered as M. Case No.2 of 2009. In the said proceedings, subsequently, the Investigation Officer has submitted B summary report.
The said B summary report is pending for consideration and decision by learned Magistrate vide summary case No.107 of 2009.
It is at that stage i.e. when the B Summary report is being considered by the learned Magistrate that present proceedings i.e. the petition and this application are taken out.
The learned Magistrate has yet not accepted or rejected the said B summary report and it is still under consideration.
It appears that in connection with the property in question, another complaint / proceedings are also pending. One FIR being CR No.I-254/2008 is also registered. In the said case also, summary report has been filed. The said summary report is challenged in this Court by Special Criminal Application No.1539 of 2010.
One of the accused in the said FIR preferred an application being Misc. Criminal Application No.12424 of 2010 in the said petition and prayed for opportunity of being heard in the petition. The said application was allowed vide order dated 20.10.2010. The applicant has also made reference of another proceedings. In this context, it is stated in the application that :-
6. The applicant submits that so far as Block No.80 is concerned, complaints being M. Case No.2/2008 and M. Case No.3/2008 were registered. In the said complaint, the investigating officer filed Summary Reports and the said reports are under challenge before this Hon'ble Court vide Special Criminal Application Nos.1540 of 2010. One of the accused of said complaint filed Criminal Misc. Application No.9892 of 2010 for impleading him as a party respondent in the said petition. The said application came to be rejected by this Hon'ble Court vide order dated 27.9.2010. Annexed hereto and marked as ANNEXURE-C is the copyof the order dated 27.9.2010. Being aggrieved by the said order dated 27.9.2010, the concerned accused filed SLP (Cri) No.8339 of 2010 before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 7.10.2010 was pleased to dispose of the said SLP by observing that ... We partly allow the petitioner's prayer not for being joined as a party to the proceedings, but to be heard in the pending proceedings before the High Court.
Annexed hereto and marked as ANNEXURE-D is the copy of the order dated 7.10.2010 passed by the Hon'ble Supreme Court. Hence, the concerned accused filed Criminal Misc. Application No.12001 of 2010 in Special Criminal Application No.1540 of 2010. This Hon'ble Court vide order dated 11.10.2010 was pleased to allow the said application with a specific observation of permitting the applicant to make submissions and/or oppose the petition. Annexed hereto and marked as ANNEXURE-E is the copy of the order dated 11.10.2010 passed by this Hon'ble Court.
8. As mentioned earlier, the applicant has claimed that he has already preferred one similar application before the learned Magistrate where the summary report has been filed and hearing with regard to the said summary report is in progress by way of summary case No.107 of 2008 and since the complainant preferred this petition during the pendency of the said proceedings, the applicant has taken out present application. Mr. Mehta, learned Senior Counsel, submitted that the applicant s request in present application is justified because the applicant apprehends that the proceedings of the petition would prejudicially affect the petitioner s application before the learned Magistrate and also because in the petition allegations have been made against the applicant.
9. Per contra, Mr. Yagnik vehemently opposed the application and contended that at this stage, the applicant has no locus to prefer such application and has no right to claim opportunity of hearing. Learned counsel for the petitioner original complainant submitted that when the investigation officer has submitted B summary report, it is only the complainant and investigation officer/agency who have right of being heard by the Magistrate before any order accepting or rejecting the said B summary report is passed. He submitted that when any order is passed with regard to the said B summary report submitted by the investigation officer and if and when any application against such order is preferred then only the accused person can claim right and opportunity of hearing. However, at this stage, the applicant accused has no locus and he cannot claim right or opportunity of being heard. Mr. Yagnik, learned advocate, relied on the decision by the Hon'ble Apex Court in the case between Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors. [Criminal Appeal No.1577 of 2012 arising out of SLP (Crl.) No.446 of 2007 decided on 1.10.2012] wherein the Hon ble Apex Court has observed, inter alia, that :-
48.
The legal position is fairly well-settled 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. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. 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. .............
In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203 although it is at preliminary stage nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get right of hearing before revisional court although such order was passed without their participation. The right given to accused or the other person under Section 401(2) of being heard before the revisional court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage.
58. We are in complete agreement with the view expressed by this Court in P. Sundarrajan1 , Raghu Raj Singh Rousha2 and A. N. Santhanam3 . We hold, as it must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. 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 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. Learned APP has also opposed the application and has made submissions on the same line as by the learned counsel for the complainant. He also submitted that at the stage when the learned court is considering the report summary submitted by the investigating officer, the accused does not have any locus at this stage and/or any right to join the proceedings as party respondent and/or any right to claim opportunity of hearing.
11. So far as the factual backdrop is concerned, certain facts are undisputed.
The petitioner in Special Criminal Application No.3143 of 2012 filed a complaint under Section 190 wherein the learned Judicial Magistrate First Class passed under Section 156(3) and directed investigation.
Upon completion of investigation, the investigation officer has filed B summary report in connection with the complaint filed by the original petitioner. The petitioner has filed objection against the said B summary report and the objection are pending for consideration and order by the learned Magistrate.
During the pendency of the said B summary report, the complainant has taken out the petition seeking above mentioned relief and directions wherein it is prayed inter alia that appropriate directions for conclusion of the hearing with regard to the summary report submitted by the investigation officer may be passed.
During pendency of the petition seeking such directions, the original accused has taken out present application and prayed that he may be joined as party respondent No.5 in the said petition and opportunity of hearing may be granted to him.
An application seeking similar relief in the proceedings pending before the learned Magistrate is also taken out by this applicant and according to the applicant the said application is still pending. Any final order accepting or rejecting the said report summary is yet not passed by the learned Magistrate.
12. It is at this stage that the applicant original accused No.2 seeks right - opportunity of hearing.
13. At this stage, it is relevant to note that the learned Senior Counsel for the applicant declared and stipulated that actually, the applicant does not have any objection if the relief prayed for by the complainant petitioner in main petition i.e. Special Criminal Application No.3143 of 2012 is granted and the said petition is allowed.
14. In that view of the matter, the main petition i.e. Special Criminal Application No.3143 of 2012 can be disposed of at this stage with appropriate observations and clarifications viz. to pass appropriate order with reference to the summary report submitted by the investigating officer, as early as possible, and without causing further and avoidable delay.
15. However, since the petitioner has raised objection against the maintainability of such application and applicant s locus to prefer such application, it is necessary and appropriate to note that at the stage of investigation and until the investigation is concluded, the accused does not have any right to claim any opportunity of hearing.
16. The accused does not have any right to claim opportunity of hearing at the stage when Court is considering the summary/report submitted by investigation agency and Court has not issued and/or yet not taken any decision about issuing process. In the above referred decision by the Hon'ble Apex Court in the case between Manharibhai Muljibhai Kakadia (supra), it is observed that:-
....As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing..
16.1 At this stage, reference may also be made to the observations by the Hon'ble Apex Court in the case between Central Bureau of Investigation & Anr. v. Rajesh Gandhi & Anr. [(1996) 11 SCC 253], wherein the Hon'ble Apex Court considered the issue as to whether the decision to investigate or the decision as to the agency which should investigate, would attract principles of natural justice and in that context, the Hon'ble Apex Court observed, in paragraph nos.8 and 9 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.
. . . . .
9. We fail to see any requirement of law under which the reasons for further investigation by the C.B.I. are required to be recorded in the notifications of the kind in question. The reasons can be shown independently.
The Hon'ble Apex Court has also 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.
17. As noticed earlier, the petition is taken out for limited purpose. However, before addressing the said aspect, it is necessary to note the submission and objection by learned APP. The learned APP has additionally submitted that the premise and base of the petition is implied allegations against the learned Court i.e. respondent No.4 and the public prosecutor i.e. respondent No.2. He also submitted that neither respondent No.2 nor respondent No.4 are responsible for the alleged delay. He also submitted that the respondent No.2 has always been ready to proceed with the hearing in connection with the summary report submitted by the Investigating Officer and the learned Court has also not delayed the hearing. The learned APP has referred to and relied on the affidavit dated 6.12.2012 wherein the respondent no.2 has mentioned, in detail, the chronology of events from 27.2.2009 when order for inquiry under Section 156(3) came to be passed to 6.12.2012 when the hearing was adjourned to 13.12.2012 and then, it is stated that:-
7. It is stated that looking to the aforesaid facts and circumstances as such the APP has not asked for time from the date of filing of the complaint by the complainant before the JMFC Court. Hence, the grievance against the respondent no.2 APP does not survive at all and no prayer can be granted against the respondent no.2. Hence, this petition is required to be dismissed with cost.
17.1 At this stage, it is not necessary to enter into the said disputed territory and to examine the cause for alleged delay or to put the blame on the complainant or the three accused persons or present opponents.
Suffice it to say that in light of the scope and purpose of the petition, the allegations against respondent No.2 and/or respondent No.4 and the allegations against the said respondents are unwarranted.
18. The learned counsel for present applicant has submitted that the applicant understands that it will not be just or proper to object the request made in the application and that therefore, the applicant does not propose to oppose the request application. Hence, the application and the petition can be disposed of without further adjudication.
18.1 In view of the above noted submission and in light of the facts of the case, it appears that the main petition (i.e. Special Criminal Application No.3143 of 2012) can be disposed of with the clarification that the observations in present order are not to be treated or considered as acceptance of the petitioner s express or implied allegations about delay and/or about the alleged cause for delay and that the Court has neither accepted nor presumed that the alleged delay is caused on account of respondent No.2 and/or respondent No.4.
18.2 Thus, the said petition is disposed of with the above clarification and the observation that necessary and appropriate order with reference to the summary report submitted by the investigating officer i.e. the order in connection with summary No.107 of 2009 may be passed without any delay and as expeditiously as possible.
18.3 Therefore, below mentioned order is passed.
The summary No.107 of 2009 may be decided and appropriate order with reference to the said proceedings may be passed without delay and endeavor may be made to decide the same as early as possible, preferably within 3 months.
With the said clarification, the petition being Special Criminal Application No.3143 of 2012 stands disposed of.
Consequently, the application being Criminal Misc. Application No. 17335 of 2012 also stands disposed off in light of the observations made hereinabove in this order.
(K.M.THAKER, J.) At this stage, learned advocate for the applicant has prayed that the impugned order may be stayed.
For the reasons recorded in the order and having regard to the fact that the learned Senior Counsel for the applicant had stipulated that the applicant has no objection if direction for early hearing and disposal of the proceedings before learned Magistrate and considering the fact that said proceedings are pending for more than about 3 years, the request is not accepted and is refused.
(K.M.THAKER, J.) kdc Page 12