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CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3172 OF 2021
Babasaheb Poul …..Petitioner
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Mr. Subodh Desai i/by. Mr. Aditya Sawant, Advocate for the petitioner.
Smt. Sharmila Kaushik, APP for State.
Investigating Officer-PSI, Laxman Kakde, Colaba Police
Station present.
JUDGMENT
1. Rule. Rule made returnable forthwith. By consent of the parties, taken up for hearing forthwith. Rane 2/13 WP-3172-2021 7.10.2021
2. This petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure takes exception to the order dated 1st September, 2021 passed by the learned Metropolitan Magistrate, 8th Court, Esplanade, Mumbai denying the right of audience to the complainant-petitioner, in an application moved by the respondent no.2-accused seeking defreezing of her Mutual Fund Folios and Demat Account in Case No.326/PW/2017. Grievance is that, by impugned order dated 1st September, 2021, the learned Magistrate not only deprived the complainant, of her right to be heard, but also subjected her to cost, without any powers therefor in the Code of Criminal Procedure.
3. Facts essential for the decision of this petition are as under:. Petitioner is a Executive Accounts Officer, of M/s. Ravissant Private Limited (“Company” for short) engaged in the manufacturing and sale of silver and silver plated gift articles and fashionware. Respondent no.2 (accused) being Rane 3/13 WP-3172-2021 7.10.2021 the Senior Store Manager, was responsible for the receipt of company’s stock, maintaining its records, sales etc. Internal enquiries revealed that, the respondent no.2 had been selling products to customers based on fabricated bills and the payments in lieu of such products were misappropriated, to cause illegal gains to her and unlawful loss to the Company. The Company, thereafter filed FIR being C.R. No.89/2016 for the offences punishable under Sections 406, 420, 465, 468, 471 read with Section 34 of the Indian Penal Code against respondent no.2. After investigation, on 27th March, 2017, a final report was filed. Whereafter on 23rd November, 2017, respondent no.2 preferred an application for defreezing of Mutual Fund Folios and Demat Accounts, that were freezed by the Investigating Agency during investigation with respect to the aforesaid crime. Petitioner being, likely to adversely affect by the application for defreezing/return of property, sought to intervene by preferring an intervention application dated 5th August, 2021. Rane 4/13 WP-3172-2021 7.10.2021
4. On 1st September 2021, learned Magistrate was pleased to deny the, right of audience to the petitioner; whilst imposing cost to the petitioner. Feeling aggrieved by this order, the petitioner has approached this Court under its supervisory jurisdiction under Article 227 of the Constitution of India.
5. Heard learned Counsel for the petitioner and Prosecutor for the State.
6. Two questions have arisen for my consideration whilst; (i)Whether private person aggrieved by the offence committed against him or against anyone in whom he is interested, can approach the Magistrate and seek permission to conduct the prosecution himself ?
(ii) In the facts and circumstances of the case, whether the learned trial Court was justified in awarding costs ?
7. Before, answering the questions, it may be stated that the petitioner had preferred more than one applications Rane 5/13 WP-3172-2021 7.10.2021 seeking intervention in the proceedings filed by respondent no.2 for defreezing his Mutual Fund Folio and Demat Account. In all previous applications, the petitioner was declined, right to audience, however was permitted to assist, the learned Assistant Public Prosecutor.
8. Learned Counsel for the petitioner, has relied on the following judgments to contend that, the parties adversely affected have right of audience. “(i). State Bank of India V/s. Rajendra Kumar Singh and Ors, AIR 1969 SC 401. (ii). Basappa Durgappa Kurubar & Ors. V/s. State of Karnataka & Anr., 1977 Cri.L.J. 1541 (Kant).
(iii) Baba Abdul Khan s/o. Daulat Khan & Ors. V/s. Smt. A.D.
(iv) Gorakshanarth Aadiwasi Sevabhavi Sanstha (Naik))
Gopal Gaushal Hatta Naik V/s. State of Maharashtra & Anr. (2021) 2 AIR Bom c.r. (Cri.) 258. Rane 6/13 WP-3172-2021 7.10.2021
(v) Shamrao Sampatrai Khanderai V/s. State of
Maharashtra & Anr. 1979 Cri. L.J. 1457. (vi)Ramchetsing Arjunsing V/s. Deoji Kalyanji, AIR 1942 (Bom) 42.. Undoubtedly in these judgments, right of affected party to be heard, has been acknowledged but such rights were relatable to proceedings under Chapter-XXXIV (Disposal of Property) in Criminal Procedure Code and particularly while passing orders for custody and disposal or delivery of property to any person claiming to be entitled to possession thereof, which has been seized by police in the course of investigation. Therefore, right acknowledged under the said Chapter, cannot be extended to a private aggrieved individual to conduct the prosecution at whose behest, prosecution has been lodged.
9. Mr. Desai, learned Counsel for the petitioner, to answer the point (i), largely relied on the judgments of the Apex Court namely (i)J.K. International V/s. State (Govt. of Rane 7/13 WP-3172-2021 7.10.2021 NCT of Delhi) & Ors. (2001) 3 SCC 462, (ii)Dhariwal Industries Ltd. V/s. Kishore Wadhwani & Ors. (2016) 10 SCC 378; (iii)Shivkumar V/s. Hukumchand, 1999 (Cri.) 1274.
10. In the case of Dhariwal Industries (supra), Magistrate granted permission to the complainant to be heard at the stage of framing charge under Section 239 of the Criminal Procedure Code. High Court modified the order of the Magistrate by expressing, the view that role of the complainant is limited under Section 301 of Criminal Procedure Code and he cannot be allowed to take over the control of the prosecution by directly addressing the Court, but has to act under the directions of the Assistant Public Prosecutor, incharge of the case. Order of the High Court was assailed in Criminal Appeal before the Hon’ble Apex Court. The Apex Court examined the scope of Sections 301 and 302, of the Criminal Procedure Code, referred to the judgment in the case of Shivkumar (supra) and held that, Section 301 applies to the trial before the Magistrate, as Rane 8/13 WP-3172-2021 7.10.2021 well as, Court of Sessions. In paragraph-12, upon examining the purport of Section 301 of the Code, held that, the application of provisions of Section 302 of the Code is confined to the Magistrate’s Court, yet Section 301(2) is applicable to all Courts without any exception. The first sub-section of Section 301 empowers the Public Prosecutor to plead in the Court without authority, provided he is incharge of the case and the second sub-section imposes the curb on counsel engaged by any private party. In para- 13 by referring to the judgment in the case of J.K. International (supra), it was held that, private person can be permitted to conduct the prosecution in Magistrate’s Court and that when permission is sought to conduct the prosecution by private person, it is open to the Court to consider his request and observed that, before granting the permission, the Court has to form an opinion that the cause of justice would be best sub-served, if such permission is granted and also observed, it would generally grant such permission. Rane 9/13 WP-3172-2021 7.10.2021
11. Thus judgments, in the case of Dhariwal Industries (supra), Shivkumar (supra) and J.K. International (supra), govern the issue which has arisen, herein. From these judgments, the law as to right of aggrieved person, to conduct the prosecution in the Court of Magistrate can be summarised as follows:
I. Aggrieved person/victim has following types of rights:
(a). (i)right to be impleaded. (ii)right to know. (iii)right to be heard. (iv)right to assist the Court in pursuit of truth. (b). an aggrieved person is not altogether eclipsed from the scenario when the criminal court takes cognizance of the offence based on the report submitted by the police. (c). though Magistrate is not bound to grant permission at the mere asking, but victim has a right to be heard and right to assist the Court in pursuit of truth, as held in Mallika Arjun Kotagali V/s. State of Karnataka & Ors. (2019) 2 SCC 752. Rane 10/13 WP-3172-2021 7.10.2021 (d). The Magistrate may consider as to whether the victim is in position to assist the Court and as to whether the trial does involve such complexities which cannot be handled by the victim; and on satisfaction of such facts, the Magistrate would be within his jurisdiction to grant permission to the victim. (e) when complainant wants to take benefit as provided under Section 302, he has to file written application making out his case. (f) that the provisions of Section 302 applies to every stage including the, stage of framing charge. (g) the private person, who is permitted to conduct prosecution in the Magistrate’s Court can engage a Counsel to do the needful in the Court on his behalf. (h). the role of informant or a private party is limited during the prosecution of case in the Court of Sessions and the Counsel engaged by him is required to act under the directions of Public Prosecutor. (emphasis supplied) Rane 11/13 WP-3172-2021 7.10.2021
12. In the case in hand, the petitioner-complainant, has lodged FIR against the respondent no.2-accused, with respect to commission of offences punishable under Sections 420, 406 of the Indian Penal Code. Petitioner’s case is that, respondent no.2 being incharge as Senior Store Manager, by taking undue advantage of the position, sold products on counterfeit bills and misappropriated company funds to the tune of over Rs.1.[5] crores. This amount, being proceeds of crime, was invested in mutual funds, of which the respondent no.2-accused seeks defreezing. In the facts and circumstances of the case, the learned trial Court although permitted the petitioner to intervene in the proceedings (defreezing of Mutual Fund Folios and Demat Account), the learned Judge declined the right to audience, but permitted to assist the Public Prosecutor, subject to cost Rs.2,000/-. What appears from the tenor of the order, is that, the learned Metropolitan Magistrate relied on the provisions of Section 301 of the Criminal Procedure Code and overlooked Rane 12/13 WP-3172-2021 7.10.2021 Section 302. The subject proceedings being filed before the Magistrate Court and since the petitioner (complainant) sought intervention and right to audience by filing an application, the learned Magistrate ought to have considered the application as to whether the petitioner would be in position to assist the Court and as to whether the proceedings involved such complexities which cannot be handled by the petitioner. The law laid down in the case of Dhariwal Industries (supra) and other judgments by the Apex Court, makes it clear that, Magistrate is not bound to grant permission but on reaching satisfaction that the complainant, if heard, would assist the Court to reach the just conclusion, the Magistrate would be within his powers to grant the permission. In the circumstances and for the reasons stated above, the impugned order declining audience to the petitioner in the proceedings filed by the accused, seeking defreezing of her Accounts, is set aside. The Learned Magistrate, shall decide the petitioner’s application for intervention (dated 5th August, 2021) in Rane 13/13 WP-3172-2021 7.10.2021 accordance with law, as summarised herein, preferably within two months from the date on which the order is produced before him. In consideration of the facts of the case, in my view, the learned Magistrate was not justified in imposing the cost, Rs.2,000/- on the petitioner. Accordingly, the order imposing the cost is quashed and set aside.
13. In the result, the impugned order is quashed and set aside. The learned Magistrate shall decide the intervention application dated 5th August, 2021 filed by the complainant in Case No. 326/PW/2017.
14. Rule is made absolute in the aforesaid terms. Petition is disposed off. (SANDEEP K. SHINDE, J.)