KISHORE WADHWANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The single question that arises for consideration in this writ petition is whether the first informant has a right of hearing at the time of consideration of the application for discharge under Section 239 of Code of Criminal Procedure (hereinafter Cr.P.C. " for short). The brief facts of the case required to be stated for consideration of the question are that the petitioners are accused in Case No.927/PW/2007 pending in the Court of Additional Chief Metropolitan Magistrate, 8 th Court, Mumbai. The case had been registered, pursuant to the order passed under Section 156(3) Cr.P.C. by the Court on the complaint filed by respondent no.2. The petitioners had filed Criminal Writ Petition No.93 of 2007 seeking quashing of MECR No.16 of 2006 registered by the police. That writ petition was dismissed on 16 th April 2007. The petitioners then approached the Hon'ble Supreme Court by filing S.L.P. (Cri.) No. 2414 of 2007, during the pendency of which, chargesheet came to be filed before the trial court. Therefore on 16 th November 2009, the petitioners withdrew the S.L.P. and filed application for discharge under Section 239 Cr.P.C. In that application, respondent no.2 appeared before the trial Court with a request to be heard in the matter. The request made was an oral request. The petitioners objected to the request. After hearing rival arguments, the oral request of respondent no.2 was allowed by the trial Court by it's order dtd. 30 th August 2010, impugned in the present petition. The reasons set out in the short order read as follows:

(2.) The petitioners challenge the impugned order contending that Section 239 Cr.P.C., under which the application for discharge is made, in express terms, gives right of hearing only to the prosecution and the accused. The section does not contemplate hearing to the first informant either in person or through advocate. Secondly under the scheme of Cr.P.C., it is the public prosecutor who has to conduct the case and the first informant can only assist the public prosecutor and can address the court through the public prosecutor. Therefore according to the petitioners, the trial Court could not have passed the impugned order. In reply, respondent no. 2 seeks to justify the impugned order contending that it is in keeping with the evolvement of law in giving equal importance to the first informant and victim of the crime. Besides, participation by way of advancing arguments on law and facts would not bring any element of unfairness but would actually assist the court.

(3.) Undoubtedly the first informant and to some extent, the injured i.e. victim of crime or relatives of the deceased, if the incident has resulted into death have now been vested with better rights. with increased participation at different stages of criminal proceedings. Before going into the question arising for consideration in the petition, it will be convenient to take note of the rights conferred upon them by the statute as well as by judicial pronouncements. It will also be necessary to refer to few provisions of Cr.P.C. to appreciate the submissions advanced.