Bombay High Court

AVIAN JULIUS SILVEIRAversusSTATE OF MAHARASHTRA AND ANR

Decided: 18 September 2026
Disposal: Disposed Off

Holding

The High Court held that the petitioner was not an aggrieved party and therefore the petition to quash the Sessions Court order was dismissed.

Summary

The petitioner, Avian Julius Silveria, sought to quash a Sessions Court order that set aside a Junior Magistrate’s (JMFC) discharge of him under Section 169 of the Cr.P.C. The discharge had been granted after the police report indicated lack of evidence, without hearing the original complainant. The complainant filed a revision before the Sessions Court, which directed the JMFC to rehear the matter after giving notice to the complainant. The petitioner argued that, as the accused, he was aggrised by the quashing order and invoked the High Court’s inherent jurisdiction. The Court held that the petitioner was not a necessary party to the revision proceeding, having already been released and not subject to any further prejudice, and therefore could not challenge the order. It further affirmed that the JMFC was indeed required to hear the complainant before accepting the Section 169 report, but this procedural defect did not affect the petitioner’s rights. Consequently, the petition was dismissed and the rule discharged.

Issues considered

Whether the petitioner, who had been released under Section 169, is a necessary and aggrieved party to challenge the Sessions Court’s order quashing the JMFC’s discharge.
Whether the JMFC was obligated to give a hearing to the original complainant before accepting the police report under Section 169 of the Cr.P.C.
Whether the High Court can exercise inherent jurisdiction to quash the Sessions Court’s order in these circumstances.

Legislation cited

Code of Criminal Procedure — s. 169

Subjects

Criminal Procedure
Section 169
Discharge of accused
Revision application
Hearing of complainant
Inherent jurisdiction
Quash order

Judgment

SMITA Digitally signed by
SMITA JOHNSON
JOHNSON GONSALVES
Date: 2026.09.19
GONSALVES 11:07:30 +0530

sg 902.wp1666-24.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

Criminal Writ Petition No.1666 of 2024

Avian Julius Silveria
Aged about: 27 years, An adult
Indian Inhabitant, Having Address
at: House No.04,Old Barampur,
Near St. Michael’s Church,
Vasai Road West, District : Palghar,
Maharashtra, Mobile N0.+91-7875089271
Email Id: Avina.silveria @gmail.com … Petitioner

versus

1. The State of Maharashtra,
(Through the office of Public
Prosecutor, High Court,
A.S., Mumbai).

2. The Senior Inspector of Police
(Vasai Police Station)
Having address at Killa Road,
Vasai West, District: Palghar,
Maharashtra-401 201.

3. Ivy Lisbon Colaso,
Aged about: 55 years, Occ: Business,
R/o. House No.87, Dharbhatwadi,
Survey No.1, 3 an 13,
Near Chankadevi Temple,
Taluka: Vasai, District: Palghar,
Maharashtra. … Respondents
----
Mr. Dipesh Palwankar, a/w. Ms. Shweta R. Rathod, i/b. Elixir Legal
Services, for the Petitioner.

Mr. Tanveer Khan, APP, for Respondent Nos.1 and 2/ State.

Page 1 of 6
__________________________________________________

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Mr. A.S. Peerzada, a/w. Mr. Rakesh Sawant, Mr. Sudhakar, Advocate
Shamiyana H and Mr. Ashish Shukla, i/b. Arhat Legal, for Respondent
No.3.
----
Coram: Ashish S. Chavan, J.
Date: 18th September, 2026.
Judgment :

1. Rule. Rule is made returnable forthwith by consent of both

parties and taken up for final disposal. Learned Counsel for the

Respondents waives service of notice on behalf of Respondents.

2. The Petitioner who was the original Accused has invoked the

inherent jurisdiction of this Court to quash and set aside order dated

15.03.2022 passed by the Sessions Court at Vasai. Interestingly, the

impugned order arises from a revision application filed by the original

complainant against an order releasing the Petitioner for lack of

evidence under Section 169 of the Code of Criminal Procedure on the

ground that the original complainant was not heard by the learned

JMFC before allowing the report.

3. Heard Mr. Dipesh Palwankar, learned Counsel for the

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Petitioner, Mr. Tanveer Khan, APP, for Respondent Nos.1 and 2/ State

and Mr. A.S. Peerzada, for Respondent No.3. Perused the record.

4. With the assistance of the respective Counsel, I have perused the

order dated 27.10.2021. This order passed by JMFC, Vasai, is an

order on the report filed by Vasai Police Station in CR No.89 of 2020,

under Section 169 of Cr.P.C. The order records that a report is

submitted by the concerned Police Station to release the Petitioner

(original accused No.2) and two other accused since there is no

evidence against him. It also records that although the say of the

original complainant was called for, the complainant failed to file her

say. Based on the report submitted by the Investigating Officer, the

JMFC Vasai has accepted the report submitted by the concerned Police

Station and released the Petitioner.

5. Aggrieved by this order, the original complainant approached

the Sessions Court at Vasai by way of a revision application. The

contention of the original complainant before the Sessions Court was

that he was not heard before the report under Section 169 of Cr.P.C.

was accepted by the learned JMFC. Accepting the contention of the

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original complainant, the Additional Sessions Judge, Vasai, has passed

the following order:

“ORDER

1. The revision application is allowed.

2. The order Dtd. 27/10/2021 passed by the Ld
JMFC in CR No.89/2020 is set aside and quashed.

3. The Ld JMFC is directed to take decision on the
169 CrPC report of the IO afresh after giving
notice and hearing to the first informant i.e. the
present applicant.

4. No order as to cost.

5. The revision application stands disposed off in
above terms.”

6. Appreciating the rival submissions at the Bar, the following facts

emerge with clarity. The impugned order arises out of a revision

application which is filed at the instance of the original complainant.

The limited ground on which the original complaint has assailed the

impugned order is that the learned JMFC ought to have granted an

opportunity to the original complainant before accepting the report

under Section 169 of Cr.P.C. A perusal of the operative order indicates

that the learned JMFC is directed to take a decision on the aforesaid

report, afresh after giving notice of hearing to the original

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complainant. The Petitioner was neither a necessary party in the

impugned order nor was he heard in the impugned order. In fact, in

the order of the learned JMFC dated 27.10.2021, the Petitioner who

was till then the accused No.2 was released for lack of evidence. This

order was challenged by the original complainant not on the merits of

the case but on the absence of procedural rigour. Thus, the impugned

order was arising out of a challenge by the original complainant. The

Petitioner (accused No.2) had nothing to do with the impugned order

since he had ceased to exist as an accused after the JMFC accepted

the report and released him. In fact, the Petitioner was released by

virtue of the order of the JMFC and the State not having filed any

appeal against the said order, the same had attained finality. Thus, the

Petitioner was not aggrieved in any manner by the impugned order.

7. The impugned order has relied on the judgment of Maruti

Kaluba More Vs. State of Maharashtra and Ors. 1 of a Co-ordinate

Bench of this Court. Even in this petition, the learned Counsel for the

Petitioner has relied upon the same judgment to bring home the point

that the Magistrate is under obligation to hear the first informant

1
Cri. Revn. Application No.205 of 202 dated 4 th February, 2015.

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before accepting the discharge as submitted by the Investigating

Officer under Section 169 of the Cr.P.C. It is in the light of this

position of law that the Sessions Court has remanded back the matter

to the learned JMFC. No prejudice is likely to be caused to the

Petitioner herein by the impugned order, since he has already been

released by the learned JMFC and unless a summons is issued to him,

he will not be arraigned as an accused. Even otherwise, I do not see

any perversity or illegality in the impugned order. It has correctly

recorded the legal position that the learned JMFC ought not to have

accepted the report of the Police without giving an opportunity of

being heard to the original complainant.

8. In the wake of the aforesaid facts, circumstances and in the light

of the fact that the impugned order does not suffer from any infirmity,

the petition is rejected and Rule is discharged. The petition stands

disposed of accordingly.

(Ashish S. Chavan, J.)

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18th September, 2026

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