vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.288 OF 2008 CRIMINAL APPLICATION NO.288 OF 2008 CRIMINAL APPLICATION NO.288 OF 2008 IN CRIMINAL APPLICATION NO.1070 OF 2008 Ashwin Bipin Mehta & anr. ... Applicants V/s. Miss Daisy B. Damania & Anr. ... Respondents Mr.A.P. Mundergi i/b Mr.R.R. Bhosale for Applicants Ms.Daisy Damania, Respondent No.1 in person Mr.P.A. Pol, APP, for State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JUNE 23, 2008 JUNE 23, 2008 JUNE 23, 2008 P.C.: P.C.: P.C.: . The application has been filed by the respondent in Criminal application NO.1070 of 2008 who is the complainant in respect of case No.37/MISC/2004. On 25.4.2008, notice was issued to the respondents including the complainant in criminal application No.1070 of 2008. Ad-interim relief in terms of prayer clause (c) was also granted. On 6.5.2008, the complainant on an oral application sought to vacate the ad-interim relief granted. However, this relief was not granted to the complainant as there was no application filed before the Court. The complainant has now filed the present application being criminal application No.288 of 2008 for vacating the stay granted earlier by this Court. : 2 : 2. Arguments were heard at length on the application. It was therefore suggested that the main application can be disposed of finally as the arguments would be similar. However, the complainant who is appearing in person insisted that this order be confined only to the prayers sought in the present application i.e. for vacating the stay granted earlier. 3. The main contention of the complainant is that the ad-interim order was snatched by the applicants in application No.1070 of 2008 behind her back by practising a fraud on this Court. It is submitted that the applicants had suppressed the order passed by the Metropolitan Magistrate on 7.7.2004. The complainant has submitted that by this order, the learned Magistrate had ordered a reinvestigation after the report was submitted by the police for filing a ‘B’ summary. She has also submitted that the applicants had not brought to the notice of this Court that they were mere interveners before the Sessions Court in criminal revision application No.986 of 2007 and therefore, they did not have locus to file the criminal application No.1070 of 2008. This suppression and non-disclosure according to the complainant, has led the Court into passing an order granting ad-interim relief. The complainant has also submitted that when an enquiry : 3 : under section 156(3) of the Cr.P.C. is ordered by the Magistrate, the accused has no locus standi to appear before the Court and have his say heard in the matter. The issue is only between the Magistrate and the complainant and, therefore, Criminal Application No.1070 of 2008 itself is not maintainable. She has relied on the judgment of the Supreme Court in the case of S.P. Chengalvaraya Naidu v/s. Jagannath & Ors., AIR 1994 SC 853 and A.V. Papayya Sastry & Ors. v/s. Govt. of A.P. & Ors., (2007) 4 SCC 221 in support of her submission that the applicants having withheld and suppressed certain relevant documents and material, are guilty of having played a fraud on this Court. She then relies on the judgment in Kishore Kumar Gyanchandani v/s. G.D. Mehrotra, AIR 2002 SC 483 in support of her submission that the Magistrate has powers to direct further investigation into the matter or to take cognisance after the police have filed the final report and the applicants would have no right to be heard at that stage. The next judgment relied on by the complainant is in the case of State of Madhya Pradesh v/s. Awadh Kishore Gupta & Ors., 2004 ALL MR (Cri) 824 (SC) to support her submission that the powers of this Court under section 482 of the Cr.P.C. are to be used in the rarest of rare cases and that the section is not an instrument handed over to the accused to short-circuit the prosecution and bring about its sudden : 4 : death. 4. The learned counsel for the applicants has submitted that when the order for ad-interim relief was granted, all relevant factors were pointed out to the Court and it was only thereafter that this Court had issued notice to the complainant and had granted ad-interim relief. The learned counsel draws my attention to the fact that after the order of 7.7.2004, which the complainant has claimed was suppressed by the applicants, a reinvestigation was ordered despite the ‘B’ summary report filed by the Investigating Officer. The learned Magistrate at that stage had not accepted the Investigating Officer’s report and instead had ordered a reinvestigation on the protest application preferred by the complainant. The learned counsel points out that these facts have been mentioned in Criminal Application No.1070 of 2008 and, therefore, there was no suppression of any material facts on the part of the applicants. The learned counsel concedes that the accused would not have any right of audience before the Magistrate who orders an enquiry under section 156(3). He submits that the applicants were interveners, the Sessions Court had heard them and had passed orders to the prejudice of the applicants. According to the learned counsel, once they were heard by the Sessions Court, albeit as interveners, the : 5 : applicants had a right to file the present application under section 482 of the Cr.P.C against an order which was prejudicial to them. He, therefore, submits that the applicants did have a locus to file the application No.1070 of 2008. The learned counsel points out that the entire case is based on an agreement which the police have found to be in possession of the complainant and therefore, there could be no possibility of forgery on the part of the applicants in respect of that document. He submits that continuing with the proceedings would tantamount to harassment for the applicants as two different investigating officers have reported that no case exists against the applicants. The learned Counsel draws my attention to the fact that a ‘B’ summary report has been submitted on two different occasions by the police. He submits that the ad-interim relief granted earlier should not be vacated and instead as the complainant has already been heard, Rule should be issued and the ad-interim relief confirmed. The learned counsel has also pointed out that the complainant has filed another complaint under section 409 r/w 34 of the Indian Penal Code against the applicants where process has been issued and which is not the subject matter of Criminal Application No.1070 of 2008. 5. In my opinion, the application of the : 6 : complainant deserves to be dismissed. When an application under section 482 of the Cr.P.C. comes up for admission it is for the Court to decide whether notice should be issued to the respondents prior to issuing Rule in the matter. At that stage the Court can always take into consideration the material on record and consider the propriety of granting ad-interim relief till the notice is served on the respondent. There is no need, in my opinion, to serve the respondents before the application comes up for admission before the Court. The question of giving notice to the respondents would arise only if the Court so directs either prior to the admission of the application or after issuing Rule. Again, issuance of Rule is a matter between the Court and the Applicant/Petitioner. Therefore, the submission of the complainant that the order was snatched behind her back is not acceptable. The complainant has also submitted that the order of 7.7.2004 was suppressed by the applicants and, therefore, it amounted to non-disclosure of material facts. She has also submitted that it amounts to playing a fraud on the Court. This submission of the complainant is unsustainable in view of the fact that the applicants have mentioned in sub-para XIX of para 5 that such an order was passed by the Metropolitan Magistrate on 7.7.2004 directing reinvestigation in the matter. Therefore, in my view, there is no suppression of facts : 7 : as the applicants have disclosed in their application that the reinvestigation was ordered by the learned Magistrate after the ‘B’ summary report was filed by the police initially. Merely because the order of 7.7.2004 is not annexed to the application it would not amount to non disclosure or suppression of facts. 6. The next submission of the complainant that the applicants had no locus standi is also without merit. It is no doubt true that the accused has no right of audience before the Magistrate when he directs an investigation under section 156(3) of the Cr.P.C. The accused also does not have any audience when the ‘B’ summary is filed and the learned Magistrate accepts it. But when a protest petition has been filed, as in the present case, the accused would always have a right of audience. In fact the applicants were added as interveners before the Sessions Court. The complainant chose to accept that order allowing them to intervene in the matter. The complainant, therefore, cannot at this stage submit that the application under section 482 of the Cr.P.C. is not maintainable because the applicants have no locus. 7. There can be no quarrel with the proposition of law enunciated in the judgments cited by the complainant. However, these judgments are not : 8 : applicable to the facts of the present case. The judgments in the case of S.P. Changalvaraya Naidu (supra) and A.V. Papayya Sastry & Ors. (supra) would be relevant only when the Court comes to the conclusion that there is a fraud played by a party by withholding vital documents. As I have already noticed, there is no suppression of facts by the applicants as they have disclosed that the reinvestigation was ordered by the learned Magistrate by order dated 7.7.2004. 8. The judgment of the Supreme Court in the case of Kishore Kumar Gyanchandani v/s. G.D. Mehrotra, AIR AIR AIR 2002 SC 483 2002 SC 483 2002 SC 483 also is not of any assistance to the complainant. The Supreme Court has in fact observed that where the Magistrate accepts the final report submitted by the police, the right of the complainant to file a regular complaint is not taken away and on such a complaint being filed the Magistrate follows the procedure under Section 200 of the Code. 9. Bearing in mind the observations of the Supreme Court in State of Madhya Pradesh (supra), this is a rare case where the powers of this Court under section 482 of the Cr.P.C. need to be exercised, prima facie. 10. Criminal Application No.288 of 2008 is dismissed. : 9 : 11. The applicants in criminal application No.1070 of 2008 have made out an arguable case as to whether the complainant can keep filing protest petitions endlessly and the Magistrate is bound to order reinvestigation when there is an option for the complainant to file a complaint under section 200 of the Cr.P.C. Hence, Rule. Interim relief in terms of prayer clause (c).