vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1225 OF 2008 CRIMINAL APPLICATION NO.1225 OF 2008 CRIMINAL APPLICATION NO.1225 OF 2008 Nahalchand Laluchand Pvt. Ltd. & Anr. ... Applicants V/s. Panchali Co-op. Hsg. Society Ltd. & Anr. ... Respondents Mr.P.D. Desai with Bharat Dhoria for Applicants Mr.G.N. Salunkhe for Respondent No.1 Mr.P.A. Pol, APP, for State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JUNE 30, 2008 JUNE 30, 2008 JUNE 30, 2008 P.C.: P.C.: P.C.: . The application challenges the order passed by the Sessions Judge in revision application No.761 of 2007 on 28.3.2008. By this order, the Sessions Court has allowed the revision filed by the complainant respondent No.2 herein, and has set aside the order passed by the Metropolitan Magistrate, 26th Court, Borivali in C.c. No.141/Misc. of 2006 granting ‘C’ summary in the matter. 2. The complainant had filed this complaint before the Metropolitan Magistrate contending that the petitioners have committed several offences under the provisions of the MOFA. An enquiry was ordered by the Metropolitan Magistrate under section 156(3) of the Cr.P.C.. A report was filed in November 2006 by Dahisar : 2 : police station requesting for the grant of ‘C’ summary. Accordingly, the Metropolitan Magistrate accepted the report and granted ‘C’ summary. Aggrieved by this order, the complainant filed a revision application before the Sessions Court. The applicants were made parties to that revision application. However, an application was made by the complainant to delete the names of the applicants contending that the applicants need not be heard in the revision. The application was allowed and the names of the applicants were deleted. 3. The applicants herein filed criminal revision application 279 of 2007 which was dismissed as withdrawn by this Court on 23.7.2007 reserving the right of the applicants to challenge the order at the appropriate stage in accordance with law. 4. The revision was heard by the Sessions Court in the absence of the advocate and the impugned order has been passed. Aggrieved by this order, the applicants have filed the present application u/s 482 of the Cr.P.C. 5. It is contended on behalf of the applicants that the procedure adopted by the Sessions Court is erroneous and in view of the judgment of the Supreme Court in the case of Subha Raj (Smt.) & anr. v/s. Sankar Sarkar & : 3 : Anr., (2008) 1 SCC (Cri.) 643, (2008) 1 SCC (Cri.) 643, (2008) 1 SCC (Cri.) 643, the applicants ought to have been heard by the Sessions Court. It is submitted that once the ‘C’ summary report has been challenged by the complainant, the applicants are entitled to be heard in the revision as a valuable right has accrued to the applicants in the passing of ‘C’ summary report. 6. On the other hand, the learned advocate for the respondents contends that in view of the order passed by Daga, J. dated 23.7.2007 in the earlier application filed by the applicants, the present application is not maintainable. It is further submitted that the judgment cited on behalf of the applicants has no application to the present case as all that the revisional Court has directed the Metropolitan Magistrate is to proceed with the case in accordance with law. 9. The submission of the learned counsel for the respondents cannot be accepted. When the order was passed by this Court dismissing the earlier application as withdrawn, an opportunity was given to the applicants to challenge the order passed by the Sessions Court dealing with the names of the applicants at an appropriate stage, in accordance with law. After deletion of the names, the Sessions Court in revision has allowed the revision and has directed the Metropolitan Magistrate to issue process against the : 4 : applicants. The Supreme Court in the case of Subha Raj & anr. (supra), has held that there is no doubt that at the time of issuance of process and taking cognisance, the accused has no right to be heard but when cognisance is not taken by the Magistrate and the complainant files a revision before the Sessions Court, the accused must be heard. In fact the complainant in that case also had deleted the names of the accused. The Supreme Court held that the High Court while dealing with the petition u/s 482 ought to have heard the accused. 10. Reliance is placed by the learned advocate for the applicants on judgment in the case of Suresh Mohanlal Goradia v/s. Hiralal G. Thakkar & Ors., 1982 1982 1982 (1) Bom.C.R. 117 (1) Bom.C.R. 117 (1) Bom.C.R. 117 in which a learned Single Judge of this Court has held that failure to examine the complainant on oath after the Magistrate takes cognisance of a complaint would not be a mere irregularity but an illegality. It has been held that the provisions of sections 200, 201 and 202 are mandatory and, therefore, when the provisions of section 202 are not complied, the complaint before the Magistrate itself can be quashed. 11. In my view, the Sessions Court has erred in passing the impugned order. There is no doubt that the applicants can be heard in revision especially since a : 5 : valuable right has accrued to them by filing of ‘C’ summary in the matter by the police. The complainant cannot delete the names of the applicants and foreclose them from being heard by the Sessions Court. Although in the present case, the earlier application before this Court has been dismissed as withdrawn, in my view, that order will not come in the way of the applicants in the present case. This is because the right of the applicants to challenge the order of deletion of their names was reserved for an appropriate stage. It is obvious that once the Sessions Court has passed an adverse order against the applicants, they would be entitled to challenge the earlier order permitting the deletion of their names as well as the impugned order of the Sessions Court in revision. 12. Thus, the order of the Sessions Court will have to be set aside. Accordingly, the petition is allowed, The revision application is remanded. The applicants shall be heard before the Sessions Court in criminal revision application No.761 of 2007 after making them parties to the revision application. 13. Application is disposed of accordingly.