Merchant Vs. S.N. Chaturvedi & Anr  Insc 744 (9 December 2004)
N.Santosh Hegde & S.B.Sinha (Arising out of SLP(Crl.)No.982 of 2004) (With Crl.A.No1453/04 @
SLP(Crl.)No.1276/04) SANTOSH HEGDE,J.
Heard learned counsel for the parties.
In Criminal Appeal arising out of SLP(Crl.)No.1276/04 the first appellant
Dr.K.T.Dholakia has since died, hence, that appeal has abated, so far as he is
The appellants in these appeals were accused of having committed offences
punishable under Sections 304-A, 201, 202, 203 of IPC by their act of medical
negligence. The Additional Chief Metropolitan Magistrate, Mumbai acquitted the
accused against which respondents herein sought for leave of the High Court to
prefer an appeal under Section 378(4) of the IPC. The learned Single Judge
before whom the matter came for preliminary hearing on 24th of July, 2003
issued notice before grant of leave.
He also permitted Dasti service. On 14.8.2003 the matter was adjourned
without granting leave on the ground that the respondents were not served. On
28.8.2003 since all the parties were not served, again the matter was
adjourned. On 4.9.2003 the court noticed that the matter was listed for hearing
on grant of leave to appeal and respondent No.1 in one of the cases was served
through his wife which service was held to be not good service and respondent
No.3 in one of the cases could not be served as he had gone out of India. It
was also noticed that the appellant before the High Court had not taken any steps
to serve respondent Nos. 1 and 3 in one of the petitions. Inspite of noticing
the same, the court proceeded to hear the petitioner before it and granted
leave to appeal. It is the said order which is challenged before this Court.
Learned senior counsel appearing for the appellants in these appeals
submitted that once the Court decides to hear the respondents before granting
leave then it is not open to the court to grant leave to appeal under Section
378(4) of IPC without hearing the respondents. In such a case a hearing at the
stage of granting leave, according to the learned counsel is a mandatory
requirement of law and in the instant case the same having not been done the
impugned order granting leave cannot be sustained.
The learned counsel appearing for the State, however, contended that the
granting of leave to file an appeal under Section 378(4) does not require
hearing of the respondent- accused at that stage. The law only requires accused
persons to be heard in the final hearing of the criminal appeal after leave is
Therefore, even if the appellants were not heard by the High Court at the
stage of granting of leave, the order of the court granting leave does not
become invalid in law.
Having heard the learned counsel and perused the records, we do not think it
is necessary to go into the legal question of requirement of law to hear the
accused even at the stage of granting of leave to appeal under Section 378(4)
of IPC. Since on facts of this case, these appeals can be disposed of without
going into that question.
On the facts narrated herein above, it is clear that after the order of
acquittal recorded by the Magistrate, appeals were filed by the aggrieved
respondents herein before the High Court under Section 378(4) of IPC which requires
the grant of leave to appeal by the High Court before entertaining the appeals.
When such an application for grant of leave came up before the court on
24.7.2003 the learned Judge who heard the petitioners before him considered it
necessary to hear the respondents before granting leave, hence, issued notice
in this regard to the respondents. It is an admitted fact and also proved from
records before us the respondents before the High Court who are appellants
herein were not actually served with the court notice and the court on
14.8.2003 adjourned the matter to take out fresh notice. On 4.9.2003 when the
fact situation remained the same inasmuch as the respondents before the Court
were not properly served, the Judge who heard the matter that day considered it
unnecessary to hear the counsel for the petitioners before it and granted leave
In our opinion, on facts of this case since at a preliminary stage the court
considered it necessary to hear the respondents- accused before granting leave
and directed the issuance of notice, judicial propriety required the court at a
subsequent stage to see that the respondents were served with court notice and
to hear them before granting leave. Had the Court not issued the notice earlier
it might have been a different thing in law. The Court once having thought it
necessary to hear the respondents before granting leave, in our opinion, ought
not to have granted leave ex parte more so in the background of the fact the
notices earlier directed to be issued were not served because of lack of steps
taken by the petitioners before it, hence, we think it appropriate that the
impugned order granting leave should be set aside and the matter be remanded
back to the High Court to hear the appellants herein on the question of grant
of leave to appeal. Since all the respondents-accused are appellants herein,
service of fresh notice is not necessary and we direct that the said appellants
to appear in Criminal Application No.847 of 2003 before the High Court of
Bombay on 11.2.2005 either personally or through their advocates and on such
appearance the court will dispose of the above application after hearing the
parties in accordance with law.
The appeals are allowed.