- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1094 OF 2008 WRIT PETITION NO.1094 OF 2008 WRIT PETITION NO.1094 OF 2008 P.H.Sales & Services Ltd. & Ors. ...Petitioners vs. M/s.Rajpal Liquid Cargo Movers Pvt.Ltd. and another ...Respondents Mr.Subodh Desai with Mr.Pankaj Thatte for the petitioners Mr.Y.M.Nakhwa A.P.P. for State Mr.Vinod Sharma for Respondent No.1. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : SEPTEMBER 25,2008 : SEPTEMBER 25,2008 : SEPTEMBER 25,2008 P.C.: P.C.: P.C.: 1. Heard learned counsel for the parties. Considering the narrow controversy involved, the petition is taken up for final disposal at admission stage. 2. The first Respondent has filed a private complaint alleging commission of offence under section 406, 420 r/w 34 of the Indian Penal Code against the petitioners. On 30th August 2005 in exercise power under section 203 of the Code of Criminal Procedure,1973 the learned Additional Chief Metropolitan Magistrate dismissed the complaint. A Revision Application was preferred by the first Respondent before the Sessions Court. By impugned order dated 7th August 2006, the Revision Application was partly allowed. The learned Additional Sessions Judge restored the complaint and directed the learned Magistrate to examine the complainant and his witnesses, if any, on oath under section 200 of the said Code and to proceed further in accordance with law. - 2 - 3. Thereafter, the learned Additional Chief Metropolitan Magistrate by an order dated 26th December 2006 issued process against the Petitioners under section 406, 420 r/w 34 of the Indian Penal Code. A revision application was preferred by the petitioners against the said order. By order dated 20th February 2008, the said revision application was dismissed by the learned Additional Sessions Judge. 4. The challenge in this petition is to the order dated 7th August 2006 as well as 20th February 2008 passed by the learned Additional Sessions Judge. 5. The submission of the learned counsel for the petitioners is that once the complaint filed by the first respondent was dismissed on merits by the learned Magistrate, without hearing the petitioners the said complaint could not have been restored. He placed reliance on the decision of this court in case of Shriram Nagordhar Mahajan vs. State of Maharashtra [2006 All M.R. (cri) 1311]. He submitted that the said order dated 7th August 2006 is illegal and therefore, the said order as well as all subsequent orders will have to be quashed and set aside. The learned counsel for the first Respondent opposed the petition. However, he submitted that instead of keeping the petition pending, by setting aside the impugned order, the criminal revision application No.368 of 2005 should be ordered to be heard afresh after permitting the first Respondent to implead accused persons as parties to the said - 3 - revision application. 6. In view of the law laid down by the by this court in the case of Shriram (supra) the order dismissing the complaint could not have been set aside without hearing the petitioners-accused. In fact, the petitioners accused were not even impleaded as parties to the Criminal Revision Application No.368 of 2005. Thus, the order dated 7th August 2006 passed in the said Revision application was completely illegal. Hence, the order dated 28th december 2006 passed by the learned Additional Chief Metropolitan Magistrate is also illegal. Hence, the Criminal Revision Application No.368 of 2005 will have to be restored and ordered to be heard afresh after giving an opportunity of being heard to the accused. 7. Hence, I pass the following order : i) Impugned orders dated 7th August 2006, 26th December 2006 and 15th February 2008 are quashed and set aside. ii) The Criminal revision Application No.368 of 2005 is restored to the file. The first respondent is permitted to amend the said revision application for impleading the accused as party respondents. iii) The learned counsel for the petitioners has stated that the Advocate on record for the petitioners has instructions to appear even for the sixth accused who is - 4 - not a petitioner in this petition. Statement is accepted. iv) The parties are directed to appear before the learned Sessions Judge, Mumbai on 10th November 2008. On that day the learned Sessions Judge will permit the first Respondent to carry out amendment to the criminal revision application No.368 of 2005 for impleading the accused persons as party respondents. It is made clear that no notice of the date fixed shall be served to the parties. v) The learned Sessions Judge may himself take up the revision application for hearing or may assign the same to any other Judge. vi) The revision application shall be disposed of as expeditiously as possible and preferably on or before the end of February 2009. vii) All contentions of the parties on merits are expressly kept open. viii) The Writ Petition is partly allowed in above terms. ix) Parties and the concerned Court to act upon an authenticated copy of this order. - 5 - JUDGE JUDGE JUDGE