R. Sekar vs Narayanan and two Others

Pratap Singh, J.—Petition u/s 482 Criminal Procedure Code praying for impleading the Petitioner as a respondent in Crl. M.P. No.

19321/90.

The allegations in the petition are briefly as follows:

On the complaint preferred by the petitioner as the Manager of M.O.H. (P) Ltd., Karaikal, the Inspector of Police, Karaikal filed case against

Velmurugan and respondents 1 and 2 in C.C.No.110/89 on the file of the Judicial First Class Magistrate, Karaikal for criminal breach of trust,

cheating and other offences. The aforesaid company is the real aggrieved party and the petitioner is its representative. Now accused 2 and 3 in the

above case have filed Crl.M.P. No. 19321/90 to quash the criminal proceedings initiated against them. The petitioner being the complainant,

should be given an opportunity of being heard before any final order is passed in Crl.M.P.No.19321/90 and hence he is to be impleaded as a

respondent. Hence the petition.

The respondent filed counter. The allegations in it are briefly as follows:

The petitioner is not an aggrieved party. He cannot claim to be the representative of M.O.H. (P) Ltd., He is now working as a Production

Supervisor, Prochain Industries at Pondicherry. He is only a witness. The case against the accused was filed by the Karaikal police. There is no

provision in the Criminal Procedure Code to implead a third person in a criminal case. Section 301 Criminal Procedure Code confers power to

third party only to assist the Public Prosecutor. Hence dismissal of the petition is prayed for.

Mr. G. Krishnan, the learned counsel appearing for the petitioner, would contend that it was the petitioner, who as the Manager of M.O.H. (P)

Ltd., had given the complaint and on the basis of that complaint, case was registered, investigated and the respondents herein and another were

charge sheeted in CC No.110/89 and in this proceedings by the respondents who are accused 2 and 3 in the trial court, for quashing the

proceedings in C.C.110/89, the petitioner should also be heard. Per Contra, Mr. C.D. Sekkizhar, the learned counsel for the respondents 1 and 2

would contend, there is no provision in the Criminal Procedure Code to implead the petitioner as a Party u/s 301 Criminal Procedure Code he can

at the most be permitted to assist the Public Prosecutor.

The petitioner as Manager of M.O.H. (P) Ltd., Karaikal had given the complaint, to the Inspector of Police, Karaikal. On that complaint, the

Inspector of Police had registered the case, investigated the same and filed charge sheet in C.C.No.110/89 against three accused out of whom the

respondents herein are accused 2 and 3. These respondents have filed Crl. M.P. 19321/90 u/s 482 Criminal Procedure Code praying to quash the

proceedings in C.C.110/89. The learned counsel appearing for the petitioner would contend that in such circumstances when the matter is being

considered as to whether the proceedings against accused 2 and 3 are to be quashed, the informant viz., the petitioner should be given an

opportunity of being heard before passing final order. He relied upon the ruling reported in, Bhagwant Singh Vs. Commissioner of Police and

Another, in which the Apex Court has considered the claim of the informant that he should be given an opportunity of being heard at the time when

the Magistrate decides not to take cognizance of the offence and to drop the Proceedings against some of the persons mentioned in the First

Information Report under S.173, Criminal Procedure Code. In that context, the Apex Court has observed as follows:

If the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceedings takes the view that though there is

sufficient ground for proceedings against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report

the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part.

Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly

recognised by the provisions contained in Sub-sec. (2) of S.154, Sub-sec. (2) of S.157 and sub-sec. (2)(ii) of Section 173, it must be presumed

:hat the informant would equally be interested in seeing that the Magistrate taken cognizance of the offence and issue process, because that would

be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made

by the officer incharge of a police station under sub-section 2(1) of S.173, the Magistrate is not inclined to take cognizance of the offence and

issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take

cognizance of the offence and issue process.

The ratio of the above observation is definitely applicable to the case before me. Now in the main petition, the maintainability of the proceedings

against these two respondents viz., accused 2 and 3 is to be considered. The respondents herein want quashing of the entire proceedings as against

them. While that is being considered, the informant viz., the petitioner herein also should be heard. He must be given an opportunity so that he can

make his submissions regarding the cognizance of the offences and maintainability of the same.

Mr. C.D. Sekkizhar, the learned counsel for the respondent relied upon the ruling of this court reported in, Dharmar v. State. 1986 M.L.J.

(Crl.) 75 : 1985 L.W (Crl.) 219 In it Justice Sengottuvelan had held as follows:

(i) there is no provision to get the third party impleaded in a criminal proceeding and;

(ii) at the same time, the third party can be permitted to assist the Public Prosecutor in the matter of prosecuting the evidence and in which case

section 301 gives the third party a right to assist the prosecution and also to submit a written

argument.

Justice Sengottuvelan had held so on a consideration of Section 301 Criminal Procedure Code. But as I have pointed out above, the Apex Court

has held that the informant must be given an opportunity to be heard. That is independent of assisting the Public Prosecutor. The case on hand is

not confined to the application of Section 301 Criminal Procedure Code. The compass of this case is far wider. Hence on the application of the

principle enunciated by the Apex Court and expressed in the observations which I have extracted above, the petitioner also should be heard in the

main case wherein the quashing of proceedings in C.C.110/89 is to be considered. So for the limited purpose of hearing him, the petitioner is to be

impleaded as a respondent. That is the inevitable, logical corollary to the principle stated by me supra.

In view of the above, the petitioner is allowed as stated hereunder:

The petitioner shall be impleaded as a respondent in Crl. M.P. No.19321/90 for the limited purpose of hearing him at the time of final disposal.