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CASE NO.: Appeal (crl.) 222  of  2001

PETITIONER: M/S JK INTERNATIONAL

       Vs.

RESPONDENT: STATE, GOVT OF NCT OF DELHI AND OTHERS

DATE OF JUDGMENT:       23/02/2001

BENCH: K.T. Thomas, R.P. Sethi & B.N. Agarwal

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  grievance of the appellant is simple and apparently innocuous  that  he too may be heard by the court.  But  the High Court rolled down the shutters before him saying he has no  right  to be heard and the court has no power to  permit him  to  be heard.  As his grievance was compounded by  such denial he has filed this appeal by special leave.

   A  person  accused  of certain offences moved  the  High Court of Delhi for quashing the criminal proceedings pending against him in a magistrates court.  Appellant informed the High  Court that the criminal proceedings were initiated  at his behest and hence he too may be heard before the criminal proceedings  are  to be quashed.  A learned single judge  of the  High  Court of Delhi, while foreclosing  the  appellant from doing so, observed that the Court is of the considered opinion that the right of the complainant to be heard ceases once  cognizance is taken and he cannot thereafter  continue to  participate  in  the  proceedings  as  if  he  were  the aggrieved party who must have his say in proceedings.

   The  background  is  the following.  Appellant  filed  a complaint  before the police alleging that respondents 2 & 3 committed offences of criminal breach of trust and cheating. As  he  felt that no action was taken by the police  on  the complaint he filed a writ petition before the high Court for a  direction  to  register FIR.  However,  before  the  writ petition was disposed of, the police informed the court that the FIR was already registered on the complaint filed by the appellant.   Respondents then moved the High Court in a writ petition  for  quashing the FIR, and the appellant was  also allowed  to  be impleaded in that writ petition.   For  some reasons  the  said writ petition was not followed up by  the respondents and it was subsequently withdrawn.

   The  police,  after investigation, filed a charge  sheet against  respondents for offences under Section 420, 406 and

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120B  of  the  IPC  and  the court  issued  process  to  the respondents  requiring  them to appear before the  Court  on 31.5.2000.   At  that  stage respondents filed  the  present petition  before  the  High Court praying for  quashing  the criminal  proceedings  pending before the  magistrate  court pursuant  to the aforesaid charge-sheet filed by the police. In  the writ petition the appellant was not made a party and therefore  a  petition  was  filed in  the  High  Court  for impleading  the appellant as a party.  The main plank of the appellant  before  the High Court was the decision  of  this court  in  Bhagwant Singh vs.  Commissioner of Police  [1985 (2) SCC 537].  The learned single judge of the High Court of Delhi  felt  that the observations made by this Court in  an earlier  decision (Thakur Ram vs.  State of Bihar [AIR  1966 SC  911])  are  more appropriate to the fact  situation  and basing  on those observations learned single judge  rejected the petition filed by the appellant before the High Court.

   The  observations  of  this court in  Thakur  Ram  which persuaded  the learned single judge to shut the door  before the appellant are the following:

   In  a  case  which has proceeded on a  police  report  a private  party  has  really no locus standi.  No  doubt  the terms  of Section 435 (old Cr.P.C.) are very wide and he can even  take up the matter suo motu.  The criminal law is not, however,  to  be used as an instrument of  wrecking  private vengeance  by  an  aggrieved party against the  person  who, according to that party, has caused injury to it.  Barring a few exceptions, in criminal matters the party who is treated as  aggrieved  party is the State which is the custodian  of the  social interests of the community at large and so it is for  the State to take all the steps necessary for  bringing the person who has acted against the social interests of the community to book.

   That  was a case in which the Public Prosecutor filed an application  before  a  magistrate in a  pending  trial  for amending the charge by incorporating two more offences which are  exclusively triable by the court of sessions and prayed for  the  case  to  be committed by the  magistrate  to  the sessions  court.  The magistrate dismissed the  application, but  prosecution  did not challenge the order passed by  the magistrate.   However,  the informant in that case  filed  a revision  before the sessions court under Section 435 of the Code  of  Criminal Procedure 1898 (old Code).  The  sessions judge  directed  the  magistrate to commit the case  to  the court of sessions.  The said order of the sessions court was challenged  by  the accused before the High Court, but  that challenge  was  unsuccessful.  Then the accused  moved  this court  by  special  leave.   In   the  above  background   a three-judge  bench  of  this court considered the  scope  of Sections  435 and 437 of the old Code.  In the said  context this Court made the observation which has been quoted by the learned  single  judge as extracted above.  When the  Public prosecutor  is in management of the prosecution of a case  a private  person  trying  to  interject in the  case  to  re- channelise   the   course  of   the  prosecution  has   been disapproved by this Court.

   But  the  situation  here is different, as  the  accused approached   the  High  Court   for  quashing  the  criminal proceedings  initiated by the appellant.  It may not be that the complainant should have been made a party by the accused himself   in   the  petition   for  quashing  the   criminal

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proceedings,  as the accused has no such obligation when the case  was charge-sheeted by the police.  It is predominantly the  concern of the State to continue the prosecution.   But when  the  complainant wishes to be heard when the  criminal proceedings are sought to be quashed, it would be a negation of  justice to him if he is foreclosed from being heard even after  he makes a request to the court in that behalf.  What is  the advantage of the court in telling him that he  would not  be  heard  at  all even at the  risk  of  the  criminal proceedings initiated by him being quashed.  It is no solace to  him  to  be told that if the  criminal  proceedings  are quashed  he  may have the right to challenge it  before  the higher forums.

   The  scheme envisaged in the Code of Criminal  procedure (for  short  the  Code)  indicates that a  person  who  is aggrieved  by the offence committed, is not altogether wiped out  from  the  scenario  of the trial  merely  because  the investigation  was  taken over by the police and the  charge sheet  was  laid by them.  Even the fact that the court  had taken  cognizance of the offence is not sufficient to  debar him  from reaching the court for ventilating his  grievance. Even  in the sessions court, where the Public Prosecutor  is the  only authority empowered to conduct the prosecution  as per  Section  225  of  the Code, a  private  person  who  is aggrieved  by  the  offence  involved in  the  case  is  not altogether  debarred from participating in the trial.   This can be discerned from Section 301(2) of the Code which reads thus:

   If  in  any  such case any private  person  instructs  a pleader  to  prosecute any person in any Court,  the  Public Prosecutor  or Assistant Public prosecutor in charge of  the case  shall  conduct  the prosecution, and  the  pleader  so instructed  shall  act therein under the directions  of  the public  Prosecutor or Assistant Public prosecutor, and  may, with  the permission of the Court, submit written  arguments after the evidence is closed in the case.

   The  said  provision  falls within  the  Chapter  titled General Provisions as to Inquiries and Trials. When such a role  is permitted to be played by a private person,  though it  is a limited role, even in the sessions courts, that  is enough  to show that the private person, if he is aggrieved, is  not wiped off from the proceedings in the criminal Court merely  because  the case was charge sheeted by the  police. It  has to be stated further, that the Court is given  power to  permit  even such private person to submit  his  written arguments  in the Court including the sessions court.  If he submits  any such written arguments the Court has a duty  to consider such arguments before taking a decision.

   In  view of such a scheme as delineated above how can it be  said that the aggrieved private person must keep himself outside  the corridors of the Court when the case  involving his  grievance  regarding the offence alleged to  have  been committed  by  the  persons arrayed as accused is  tried  or considered  by the Court.  In this context it is appropriate to  mention that when the trial is before a magistrate court the  scope  of  any  other   private  person  intending   to participate  in  the  conduct of the  prosecution  is  still wider.   This  can be noticed from Section 302 of  the  Code which reads thus:

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   (1)  Any Magistrate inquiring into or trying a case may permit  the prosecution to be conducted by any person  other than  a police officer below the rank of Inspector;  but  no person,  other  than  the   Advocate-General  or  Government Advocate   or  a  public   prosecutor  or  Assistant  Public prosecutor,  shall  be  entitled  to   do  so  without  such permission:

   Provided  that  no police officer shall be permitted  to conduct  the  prosecution  if  he  has  taken  part  in  the investigation  into  the offence with respect to  which  the accused is being prosecuted.

   (2)  Any  person  conducting the prosecution may  do  so personally or by a pleader.

   The   private  person  who  is  permitted   to   conduct prosecution  in the magistrates court can engage a  counsel to  do  the needful in the Court in his behalf.  It  further amplifies the position that if a private person is aggrieved by  the offence committed against him or against any one  in whom  he  is interested he can approach the  magistrate  and seek  permission to conduct the prosecution by himself.   It is  open to the Court to consider his request.  If the court thinks  that the cause of justice would be served better  by granting  such  permission the courts would generally  grant such permission.  Of course, this wider amplitude is limited to  Magistrates  courts,  as  the  right  of  such  private individual  to participate in the conduct of prosecution  in the  sessions  court  is very much restricted  and  is  made subject  to  the  control  of the  Public  Prosecutor.   The limited role which a private person can be permitted to play for  prosecution in the Sessions Court has been adverted  to above.   All  these  would show that  an  aggrieved  private person  is  not altogether to be eclipsed from the  scenario when  the  criminal court takes cognizance of  the  offences based  on  the report submitted by the police.  The  reality cannot  be  overlooked that the genesis in almost  all  such cases  is the grievance of one or more individual that  they were  wronged by the accused by committing offences  against them.

   We  may  now proceed to point out the usefulness of  the observations made by the three-judge bench in Bhagwant Singh vs.   Commissioner  of Police (supra).  Bhagwati J.  (as  he then  was)  who  spoke for the bench pointed  out  that  the informant  having taken the initiative in lodging the  First Information  Report with a view to initiate investigation by the  police  for  the purpose of  ascertaining  whether  any offence  has  been  committed  (if so by  whom)  is  vitally interested  in the result of the investigation and hence the law requires that the action taken by the officer-in- charge of  the police station on such FIR should be communicated to him.   The  bench  said  this   with  reference  to  Section 173(2)(i) of the Code.

   This  Court  further  said in the decision that  if  the magistrate  finds  that  there is no sufficient  ground  for proceeding   further  the  informant   would  certainly   be prejudiced  because  the  FIR  was  lodged  by  him.   After adverting  to  different clauses of Section 173 of the  Code learned  judges laid down the legal proposition in paragraph 5 of the said judgment.  The law so laid down is that though there  is no obligation on the magistrate to issue notice to

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the injured person or to a relative of the deceased in order to  provide  him an opportunity to be heard at the  time  of consideration of the final report of the police (except when the  final report is to the effect that no offence had  been made  out  in the case) the informant who lodged the FIR  is entitled  to  a  notice  from   the  magistrate.   In  other instances,  the  injured or any relative of the accused  can appear before the magistrate at the time of consideration of the  police  report if such person otherwise comes  to  know that  the  magistrate is going to consider the  report.   If such  person appears before the magistrate it is the duty of the magistrate to hear him.  It is profitable to extract the relevant portion of that ratio:

   The  injured  person  or any relative of  the  deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is  going to be considered by the Magistrate and if he wants to  make  his  submissions  in regard  to  the  report,  the Magistrate  is bound to hear him.  We may also observe  that even  though  the Magistrate is not bound to give notice  of the  hearing  fixed for consideration of the report  to  the injured  person or to any relative of the deceased, he  may, in the exercise of his discretion, if he so thinks fit, give such  notice  to  the injured person or  to  any  particular relative  or  relatives of the deceased, but not  giving  of such  notice  will not have any invalidating effect  on  the order which may be made by the Magistrate on a consideration of the report.

   In the above view of the matter learned single judge has done  wrong to the appellant when he closed the door of  the High Court before him by saying that the High Court is going to  consider  whether the criminal proceedings initiated  at his  behest  should  be  quashed  completely  and  that  the complainant would not be heard at all even if he wants to be heard.

   We,  therefore,  allow  this appeal and  set  aside  the impugned  order.  The petition filed by the respondents  for quashing  the criminal proceedings can now be disposed of by the  High Court after affording a reasonable opportunity  to this appellant also to be heard in the matter.

   The appeal is accordingly disposed of.

K.T. Thomas

R.P. Sethi.

B.N. Agarwal

February 23, 2001.