Point of Law: Power of Magistrate - Magistrate is not bound to grant permission but on reaching satisfaction that the complainant, if heard, would assist the Court to reach the just conclusion, the Magistrate would be within his powers to grant the permission.

JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent of the parties, taken up for hearing forthwith.

2. This petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure takes exception to the order dated 1st September, 2021 passed by the learned Metropolitan Magistrate, 8th Court, Esplanade, Mumbai denying the right of audience to the complainant-petitioner, in an application moved by the respondent no.2-accused seeking defreezing of her Mutual Fund Folios and Demat Account in Case No.326/PW/2017. Grievance is that, by impugned order dated 1st September, 2021, the learned Magistrate not only deprived the complainant, of her right to be heard, but also subjected her to cost, without any powers therefor in the Code of Criminal Procedure.

3. Facts essential for the decision of this petition are as under :

Petitioner is a Executive Accounts Officer, of M/s. Ravissant Private Limited (“Company” for short) engaged in the manufacturing and sale of silver and silver plated gift articles and fashionware. Respondent no.2 (accused) being the Senior Store Manager, was responsible for the receipt of company’s stock, maintaining its records, sales etc. Internal enquiries revealed that, the respondent no.2 had been selling products to customers based on fabricated bills and the payments in lieu of such products were misappropriated, to cause illegal gains to her and unlawful loss to the Company. The Company, thereafter filed FIR being C.R. No.89/2016 for the offences punishable under Sections 406, 420, 465, 468, 471 read with Section 34 of the Indian Penal Code against respondent no.2. After investigation, on 27th March, 2017, a final report was filed. Whereafter on 23rd November, 2017, respondent no.2 preferred an application for defreezing of Mutual Fund Folios and Demat Accounts, that were freezed by the Investigating Agency during investigation with respect to the aforesaid crime. Petitioner being, likely to adversely affect by the application for defreezing/return of property, sought to intervene by preferring an intervention application dated 5th August, 2021.

4. On 1st September 2021, learned Magistrate was pleased to deny the, right of audience to the petitioner; whilst imposing cost to the petitioner. Feeling aggrieved by this order, the petitioner has approached this Court under its supervisory jurisdiction under Article 227 of the Constitution of India.

5. Heard learned Counsel for the petitioner and Prosecutor for the State.

6. Two questions have arisen for my consideration whilst;

(i) Whether private person aggrieved by the offence committed against him or against anyone in whom he is interested, can approach the Magistrate and seek permission to conduct the prosecution himself ?

(ii) In the facts and circumstances of the case, whether the learned trial Court was justified in awarding costs ?

7. Before, answering the questions, it may be stated that the petitioner had preferred more than one applications seeking intervention in the proceedings filed by respondent no.2 for defreezing his Mutual Fund Folio and Demat Account. In all previous applications, the petitioner was declined, right to audience, however was permitted to assist, the learned Assistant Public Prosecutor.

8. Learned Counsel for the petitioner, has relied on the following judgments to contend that, the parties adversely affected have right of audience.

“(i). State Bank of India V/s. Rajendra Kumar Singh and Ors., AIR 1969 SC 401.

(ii). Basappa Durgappa Kurubar & Ors. V/s. State of Karnataka & Anr., 1977 Cri.L.J. 1541 (Kant).

(iii) Baba Abdul Khan s/o. Daulat Khan & Ors. V/s. Smt. A.D. Sawant, J.M.F.C. Nagpur & Ors., 1994 Cri.L.J. 2836.

(iv) Gorakshanarth Aadiwasi Sevabhavi Sanstha (Naik)) Gopal Gaushal Hatta Naik V/s. State of Maharashtra & Anr. (2021) 2 AIR Bom c.r. (Cri.) 258.

(v) Shamrao Sampatrai Khanderai V/s. State of Maharashtra & Anr. 1979 Cri. L.J. 1457.

(vi) Ramchetsing Arjunsing V/s. Deoji Kalyanji, AIR 1942