09 December 2004
Supreme Court


Case number: Crl.A. No.-001452-001452 / 2004
Diary number: 98 / 2004



CASE NO.: Appeal (crl.)  1452 of 2004


RESPONDENT: S.N.Chaturvedi & Anr.

DATE OF JUDGMENT: 09/12/2004

BENCH: N.Santosh Hegde & S.B.Sinha


(Arising out of SLP(Crl.)No.982 of 2004)

(With Crl.A.No\0051453\005/04 @ SLP(Crl.)No.1276/04)


       Heard learned counsel for the parties.

       Leave granted.

       In Criminal Appeal arising out of SLP(Crl.)No.1276/04 the  first appellant Dr.K.T.Dholakia has since died, hence, that appeal  has abated, so far as he is concerned.          The appellants in these appeals were accused of having  committed offences punishable under Sections 304-A, 201, 202,  203 of IPC by their act of medical negligence. The Additional  Chief Metropolitan Magistrate, Mumbai acquitted the accused  against which respondents herein sought for leave of the High  Court to prefer an appeal under Section 378(4) of the IPC. The  learned Single Judge before whom the matter came for preliminary  hearing on 24th of July, 2003 issued notice before grant of leave.  He also permitted Dasti service. On 14.8.2003 the matter was  adjourned without granting leave on the ground that the  respondents were not served. On 28.8.2003 since all the parties  were not served, again the matter was adjourned. On 4.9.2003 the  court noticed that the matter was listed for hearing on grant of  leave to appeal and respondent No.1 in one of the cases was served  through his wife which service was held to be not good service and  respondent No.3 in one of the cases could not be served as he had  gone out of India. It was also noticed that the appellant before the  High Court had not taken any steps to serve respondent Nos. 1 and  3 in one of the petitions. Inspite of noticing the same, the court  proceeded to hear the petitioner before it and granted leave to  appeal. It is the said order which is challenged before this Court.

Learned senior counsel appearing for the appellants in these  appeals submitted that once the Court decides to hear the  respondents before granting leave then it is not open to the court to  grant leave to appeal under Section 378(4) of IPC without hearing  the respondents. In such a case a hearing at the stage of granting  leave, according to the learned counsel is a mandatory requirement  of law and in the instant case the same having not been done the



impugned order granting leave cannot be sustained.  

The learned counsel appearing for the State, however,  contended that the granting of leave to file an appeal under Section  378(4) does not require hearing of the respondent- accused at that  stage. The law only requires accused persons to be heard in the  final hearing of the criminal appeal after leave is granted.  Therefore, even if the appellants were not heard by the High Court  at the stage of granting of leave, the order of the court granting  leave does not become invalid in law.          Having heard the learned counsel and perused the records,  we do not think it is necessary to go into the legal question of  requirement of law to hear the accused even at the stage of  granting of leave to appeal under Section 378(4) of IPC. Since on  facts of this case, these appeals can be disposed of without going  into that question.          On the facts narrated herein above, it is clear that after the  order of acquittal recorded by the Magistrate, appeals were filed by  the aggrieved respondents herein before the High Court under  Section 378(4) of IPC which requires the grant of leave to appeal  by the High Court before entertaining the appeals. When such an  application for grant of leave came up before the court on  24.7.2003 the learned Judge who heard the petitioners before him  considered it necessary to hear the respondents before granting  leave, hence, issued notice in this regard to the respondents. It is an  admitted fact and also proved from records before us the  respondents before the High Court who are appellants herein were  not actually served with the court notice and the court on  14.8.2003 adjourned the matter to take out fresh notice. On  4.9.2003 when the fact situation remained the same inasmuch as  the respondents before the Court were not properly served, the  Judge who heard the matter that day considered it unnecessary to  hear the counsel for the petitioners before it and granted leave to  appeal.           In our opinion, on facts of this case since at a preliminary  stage the court considered it necessary to hear the respondents-  accused before granting leave and directed the issuance of notice,  judicial propriety required the court at a subsequent stage to see  that the respondents were served with court notice and to hear  them before granting leave. Had the Court not issued the notice  earlier it might have been a different thing in law. The Court once  having thought it necessary to hear the respondents before granting  leave, in our opinion, ought not to have granted leave ex parte  more so in the background of the fact the notices earlier directed to  be issued were not served because of lack of steps taken by the  petitioners before it, hence, we think it appropriate that the  impugned order granting leave should be set aside and the matter  be remanded back to the High Court to hear the appellants herein  on the question of grant of leave to appeal. Since all the  respondents-accused are appellants herein, service of fresh notice  is not necessary and we direct that the said appellants to appear in  Criminal Application No.847 of 2003 before the High Court of  Bombay on 11.2.2005 either personally or through their advocates  and on such appearance the court will dispose of the above  application after hearing the parties in accordance with law.  The appeals are allowed.