27. cr wp 1444-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1444 OF 2010 Arvind Bharati & Anr .. Petitioners Vs The State of Maharashtra & Anr .. Respondents Mr. S.V. Marwadi i/b Sreelatha R. Kamath for the Petitioners Mr. R.A. Shaikh for Respondent No. 2 Ms. A.A. Mane, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 27th OCTOBER, 2010. P.C.: 1. Heard learned advocate for the petitioners-original accused, learned advocate for respondent no. 2-original complainant and learned APP for the State. 2. Respondent no. 2 filed a complaint against the petitioners in the Court of learned Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai. The said case is numbered as CC 11/Misc/2005 (Original Case No. 737/M/2000). By order dated 10th December 2008, the learned Magistrate dismissed the complaint in default and discharged the accused from the case and closed the proceedings. Being aggrieved by the said 1 27. cr wp 1444-10.doc order, the complainant preferred C.R.A. No. 326 of 2009 before the Sessions Court, Mumbai. By order dated 18th March 2009, learned Additional Sessions Judge set aside the order of the Magistrate dated 10th December 2008 whereby the complaint came to be dismissed and the complaint came to be restored. By the said order, he also directed the applicant therein to pay costs of Rs. 10000/- which was to be deposited in the office of the Registrar, Sessions Court. The order dated 18th March 2009 is impugned in this petition. 3. Learned advocate for the petitioners submitted that the petitioners have been seriously prejudiced by order dated 18th March 2009, in such case the order ought to have been passed after giving opportunity to the petitioners of being heard. 4. It is an admitted fact that no notice was issued by the Court to the petitioners before the said order came to be passed, hence such order cannot be sustained. The rules of natural justice require that before such an order which is highly prejudicial to the accused is passed, the accused should have been given an opportunity of being heard. In this view of the matter, order dated 18th March 2009 is set aside and CRA No. 323 of 2009 is restored to file. 2 27. cr wp 1444-10.doc 4. Learned advocate for respondent no. 2 pointed out that after complaint came to be restored to file, process came to be issued against the accused in the said case. As the proceedings before the trial Court have progressed pursuant to the order dated 18th March 2009 which itself is an order which cannot be sustained, hence, the further steps which took place pursuant to the said order also cannot be allowed to stand, hence, the order of issuing process is also set aside. C.R.A No. 326 of 2009 is restored to file. The learned Sessions Judge shall hear the C.R.A. afresh and dispose it off in accordance with law. Parties to appear before the Sessions Court on 26th November 2010. 5. As stated earlier, respondent no. 2 was directed to pay costs of Rs. 10,000/- which was to be deposited with the Registrar, Sessions Court, Mumbai, on disposal of C.R.A. No. 326 of 2009, the learned Sessions Judge shall pass appropriate orders in respect of amount of Rs. 10,000/-. 6. Application disposed of in above terms. [SMT. V.K. TAHILRAMANI, J.] 3 27. cr wp 1444-10.doc 4