Bombay High Court
Sumaiya Naushad Ali Sayyed vs State Of Maharashtra And Ors on 6 November, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-AS:33953
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.18856 OF 2023
Sumaiya Naushad Ali Sayyed .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
...
Mr.Ashish A. Dubey for the Petitioner.
Mr.Y.M.Nakhwa, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE, J.
DATED : 06th NOVEMBER, 2023 P.C:-
1. The Petitioner is a original Complainant in Criminal Case No.PW/1927/2016, pending before the Metropolitan Magistrate, 67th Court, Borivali, Mumbai.
I need not go into the dispute in great detail, but suffie it to note that the dispute arises out of the matrimonial relationship and during the iourse of the proieedings, the Complainant fled two appliiations before the Magistrate, whiih were numbered as Exhs.5 and 6.
Exh.5 is an appliiation fled on behalf of the Complainant for ionduit of the proieedings In-iamera as per Seition 327(2) of the Code of Criminal Proiedure (for short, "the Cr.P.C."), whereas Exh.6 is an appliiation to permit ionduit of proseiution under Seition 302 of the Cr.P.C. in terms of the permission granted by order dated 14/03/2017.
M.M.Salgaonkar
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Pertinent to note than an appliiation was preferred on 14/03/2017 before the Magistrate, by invoking the provision available under Seition 302 of the Cr.P.C. and it was speiifially pleaded that the Complainant is a viitim of a draionian ionspiraiy by the aiiused persons and she deemed it appropriate to ionduit the proseiution through an Advoiate and this appliiation was allowed.
2. Both the appliiations (Exh.5 and 6) were plaied before the Magistrate and on 05/10/2023 and Exh.5 iame to be allowed, but as far as the ionduit of proseiution under Seition 302 of the Cr.P.C. is ionierned, the Magistrate in utter ignoranie of the order dated 14/03/2017, rejeited the appliiation by reiording that it is wrongly assumed that Seition 302 of the Cr.P.C. provides ihoiie to the Complainant to appoint any person for proseiuting his or her iase and by giving a restriited meaning to Seition 302 of Cr.P.C., what was granted was, supervision by an Advoiate to be appointed by the Complainant, who shall restriit himself to that job.
3. On the last oiiasion, by amending the Writ Petition, learned iounsel for the Petitioner has plaied on reiord, subsequent order dated 07/10/2023 passed by the Metropolitan Magistrate, whiih reveal that on 07/10/2023, when the Complainant was to be ialled for examination, she iomplained of some health issue and the Magistrate presumed that she is not interested in proieeding and ionstrued it as an attempt to delay the trial.
M.M.Salgaonkar
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Reiording that the iharge was framed in the year 2016 and the matter is pending for reiording of evidenie, the following order iame to be passed.
"1. The evidenie of the iomplainant/witness stands dispensed with and exiluded.
2. The iase put up for reiording rest of the witnesses."
4. The purport of the impugned order iannot be asiertained as to what the learned Magistrate intended was, exilusion of the evidenie of the Complainant/her witnesses, but in fait, the Complainant did not enter into the witness box and, therefore, there is no question of exilusion of her evidenie.
In any iase, the Magistrate has fallen into grave error in ignoring the order passed by his Predeiessor on 14/03/2017, when appliiation fled under Seition 302 of Cr.P.C., seeking permission to appoint a private Advoiate to ionduit the proseiution in the matter was already granted and in any iase, the said permission iould not have been tinkered by his suiiessor.
5. There ian be no quibble about the proposition of law revolving around Seition 302 of Cr.P.C., whiih permit the proseiution to be ionduited before a Magistrate by any person other than a poliie offier, below the rank of Inspeitor and the Hon'ble Apex iourt, while expounding the siope of the said provision in the iase of Dhariwal Industries Ltd. Vs. Kishore Wadhwani1, has interpreted the said provision in iontrast with Seition 301 of Cr.P.C. and the following observations are relevant and, henie, are reproduied.
1 AIR 2016 SC 4369
M.M.Salgaonkar
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"13. In J.K. International (AIR 2001 SC 1142) (supra), a three- Judge Benih was adverting in detail to Seition 302 CrPC. In that iontext, it has been opined that the private person who is permitted to ionduit proseiution in the Magistrate's Court ian engage a iounsel to do the needful in the iourt in his behalf. If a private person is aggrieved by the offenie iommitted against him or against any one in whom he is interested he ian approaih the Magistrate and seek permission to ionduit the proseiution by himself. This Court further proieeded to state that it is open to the iourt to ionsider his request and if the iourt thinks that the iause of justiie would be served better by granting suih permission the iourt would generally grant suih permission. Clarifying further, it has been held that the said wider amplitude is limited to Magistrate's Court, as the right of suih private individual to partiiipate in the ionduit of proseiution in the sessions iourt is very muih restriited and is made subjeit to the iontrol of the publii proseiutor.
14. Having iarefully perused both the deiisions, we do not perieive any kind of anomaly either in the analysis or ultimate ionilusion arrived by the Court. We may note with proft that in Shiv Kumar (supra), the Court was dealing with the ambit and sweep of Seition 301 CrPC and in that iontext observed that Seition 302 CrPC is intended only for the Magistrate's Court. In J.K. International (supra) from the passage we have quoted hereinbefore it is evident that the Court has expressed the view that a private person ian be permitted to ionduit the proseiution in the Magistrate's Court and ian engage a iounsel to do the needful on his behalf. The further observation therein is that when permission is sought to ionduit the proseiution by a private person, it is open to the iourt to ionsider his request. The Court has proieeded to state that the Court has to form an opinion that iause of justiie would be best subserved and it is better to grant suih permission. And, it would generally grant suih permission. Thus, there is no ileavage of opinion."
6. In the wake of the right ionferred under Seition 302, when onie the appliiation is allowed by permitting the ionduit of the proseiution by an appointed Advoiate, it was iompletely iniorreit on part of the Magistrate to siuttle the said permission and then insist that it shall be limited in the form of assistanie to the proseiution.
Needless to state that even the order, whiih is passed by the Magistrate on 07/10/2023, whiih is outiome of an M.M.Salgaonkar ::: Uploaded on - 07/11/2023 ::: Downloaded on - 08/11/2023 23:38:11 ::: 5/5 39 WPST-18856-23.odt anguish, on an assumption that the Complainant is delaying the proieedings, also iannot be sustained. However, sinie on the given date i.e. on 07/10/2023, the Complainant refrained herself from entering into the witness box, she has to pay the iost of the proieedings, as the proieedings iame to be adjourned. Henie, subjeit to deposit of iosts of Rs.10,000/- with the Legal Serviies Authority, within a period of four weeks from today, the impugned order is quashed and set aside.
7. The learned iounsel for the Petitioner informs that the proieedings before the learned Magistrate were siheduled today. Henie, if the date is already allotted by the Magistrate, then on that date, or if not, the date on whiih the Magistrate deem it appropriate, immediately on expiry of Diwali Vaiation, the Complainant shall enter into the witness box and the proseiution shall be permitted to be ionduited in terms of Seition 302 of Cr.P.C..
It is made ilear that there shall be no delay in proieeding with the matter, as it is noted that, the Aiiused is 77 years old and the iharge is framed long baik.
8. The Petition stands allowed in the aforesaid terms.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 07/11/2023 ::: Downloaded on - 08/11/2023 23:38:11 :::