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Allahabad High Court · body

1988 DIGILAW 974 (ALL)

Bhagwan Dass v. State Of U. P.

1988-10-14

PALOK BASU

body1988
JUDGMENT Palok Basu 1. To me it appears that the controversy in the instant case has to be interpreted keeping in view the observations of the Hon'ble the Supreme Court in Bhagwant Singh's case, reported in 1986 ACrR 26=1986 AWC 26. It may be useful to narrate here the controversy in brief which I formulate as under : "Will it be legal, and if yes, then what will be the procedure to be followed in cases where, after investigating an FIR, the Investigating Officer, files a Final Report and the informant challenges the said Final Report by filing a protest petition and affidavits before the Magistrate who then takes cognizance and summons the accused ? " Facts lie in a very narrow compass. Bhagwan Das and two others are the named accused in the FIR lodged under section 307 IPC giving rise to Case Crime No. 209/1986, P. S. Karchnana, district Allahabad. Informant Hari Mohan Misra was hit by country made pistols fired at by Bhagwan Das and Amarnath accused at the instigation of Rama Shankar accused. Many witnesses saw the incident. FIR was dictated to the cousin brother Mahendra Prasad Misra by the victim Hari Mohan Misra, whereafter he was medically examined. This FIR was investigated and ultimately a report was submitted by the Investigating Officer saying that the case was dependant only upon the partisan witnesses' testimony and appears concocted and, therefore, a Final Report was being sent which may be kindly accepted. (By the words Final Report I mean a report sent by the Investigating Officer that there is no offence made out against the accused). When the Final Report did reach the court, a protest petition was filed by the informant alongwith affidavits of three witnesses. It was prayed that Final Report which was the outcome of political pressure and malafides be rejected, cognizance of the offence be taken and the accused be proceeded with in accordance with law. By an order dated 3-4-1987, the concerned magistrate, proceeded to pass an order, an English translation of which will read as follows : "Parties are present. Heard learned counsel for the applicant and the public prosecutor, and perused FIR and the affidavits filed by the applicant and the witnesses through which a charge under section 307 IPC has been levelled against the accused. Heard learned counsel for the applicant and the public prosecutor, and perused FIR and the affidavits filed by the applicant and the witnesses through which a charge under section 307 IPC has been levelled against the accused. In view of the averments of the informant and the witnesses the final report forwarded regarding the accused is hereby rejected. Register the case and let accused Rama Shanker, Bhagwan Das and Amarnath be summond for 25/26th. Sd/- Illegiblc Magistrate. " 2. So long as the judgment in Bhagwant Singh's case was not there it was not incumbent upon the Magistrate, to issue notice to the informant or hear the relatives of the deceased or the victim in case they appeared and opposed the acceptance of the final report forwarded by an Investigating Officer. No such choice now left with magistrate, Law of the land as declared by the Supreme Court is binding upon all courts in view of Article 141 of the Constitution of India. Therefore, the law as laid down in Bhagwant Singh's case that the informant must be given notice and heard before a final report sent by the Investigating Officer having investigated the said FIR is accepted, has to be obeyed by the courts. Before referring to the other decisions cited and the arguments raised at the Bar, the primary question to be decided is what will happen after notice is issued to the informant ? I am not making a distinction between an informant who appears after notice by the magistrate and one who voluntarily appears knowing about the final report because in either case his right of opposing the acceptance of the final report remains the same in view of the law laid down in Bhagwant Singh's case. Therein the Supreme Court dealt with the question as to when cognizance may be said to have been taken and what are the courses open to a magistrate, once a report under sub-section (2) (i) (d) of section 173 CrPC comes up before the Magistrate. Therein the Supreme Court dealt with the question as to when cognizance may be said to have been taken and what are the courses open to a magistrate, once a report under sub-section (2) (i) (d) of section 173 CrPC comes up before the Magistrate. Towards the close of the discussions, it has been laid down that where a magistrate " decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate, must give notice to the informant and provide him an opportunity to be heard, at the time of consideration of the report......" (The other contingencies discussed therein are being omitted as they are not relevant here). 3. While hearing the informant, what precisely the magistrate is expected to do. The answer will go a long way in resolving the controversy noted by me above. I. Should the magistrate only hear the informant orally ? II. Should the magistrate permit the informant to produce application, affidavit and materials ? III. Should the magistrate record informant's statement on oath or without oath ? 4. Allied question, which then arises is that when first or the second or both out of the aforesaid three contingencies is or are resorted to, is the magistrate bound to follow procedure for the complaint cases ? Answer has to be emphatic 'NO'. While laying down the law in Bhagwant Singh's case the right of the informant was being considered only as an informant and not as a complainant. It was even then known to all that where investigation has culminated in favour of the accused, the right of the informant (or the aggrieved person) to file a complaint before the magistrate remained intact. But filing of a complaint by the informant after acceptance of the final report by the magistrate is an entirely different thing, than when the informant is permitted to raise objections before the magistrate accepts the final report praying that the accused be proceeded with on the police report in accordance with law. The Hon'ble Supreme Court never appears to have desired that in such a case an informant should be asked to shoulder the burden of a complainant even though the Final Report deserves rejection. 5. The Hon'ble Supreme Court never appears to have desired that in such a case an informant should be asked to shoulder the burden of a complainant even though the Final Report deserves rejection. 5. This takes me to some of the provisions contained in Criminal Procedure Code. 'Complaint' means any allegation made orally or in writing to a magistrate with a view to his taking action under the Criminal Procedure Code, against the known or unknown accused, but does not include the police report (See Clause 'd' of section 2 CrPC). 'Police Report' means a report forwarded by the police officer, to a magistrate, under sub-section (2) of Section 173 (See Clause V of section 2 CrPC). The word 'cognizance' has not been defined in the Criminal Procedure Code but section 190 of the said Code appearing in Chapter XIV lays down the conditions requisite for initiation of proceedings. A clear distinction is drawn in clause 'a' and 'b' of sub-section (1) of Section 190 as to when cognizance by a magistrate can be said to have been taken on receiving a complaint of facts which constitutes an offence, and, upon a police report of facts which constitutes an offence. (I am omitting clause 'c' for the time being as it is not relevant). 6. The sub-section empowering cognizance begins with the words 'subject to the provisions of this Chapter'. Some restrictions appear in the Section 195 to Section 199 about taking of cognizance. Then follows Chapter XV which deals with procedure to be adopted if the magistrate takes cognizance on a complaint. Section 200 begins by saying 'magistrate taking cognizance of offence on complaint shall examine upon oath the complainant........." In view of the aforesaid provisions it has to be held that when the magistrate takes cognizance on a complaint and he wishes to proceed with it, he has to record statement of the complainant on oath (The proviso to section 200 is omitted from consideration here because that is not relevant). Therefore, the magistrate is duty bound to follow the mandate contained in section 200 CrPC by examining him on oath. So long as this is not done, the magistrate will be deemed to be considering only the police report. 7. Therefore, the magistrate is duty bound to follow the mandate contained in section 200 CrPC by examining him on oath. So long as this is not done, the magistrate will be deemed to be considering only the police report. 7. By the aforesaid discussions of the legal provisions, I am entitled to interpret the Supreme Court decision in Bhagwant Singh's case, as laying down that when the informant appears and objects to the acceptance of the final report, the magistrate may permit him to file a protest petition or materials or affidavit in order to show reasons why the final report should be rejected. 8. Sri S. N. Dubey, learned counsel for the applicant argued with vehemance that the view of the Investigating Officer in the instant case should have been accepted by the magistrate. If the informant has a grievance, he could have exercised his right of filing a criminal complaint. Both the arguments are no more tenable in view of the foregoing discussions. It was further argued that if 'the opportunity of being heard' is interpreted so widely, it may include even the statement of the informant with or without oath. I am not entering into this question because it is hypothetical as on the facts of this case, there is no applicability of the above noted third contingency. I am quite sure that the Magistrates will pay due regard to the provisions contained in the Criminal Procedure Code, as interpreted above and would not mix up the two procedures unless in a given situation such an action is permitted by law. It may be mentioned here that SRI Dubey has placed reliance upon the decision reported in 1979 Allahabad Criminal Cases page 38, 1985 Allahabad Criminal Cases page 46 and page 116. Sri D. S. Tiwari, learned counsel for the opposite party argued that in the instant case there was absolutely no reason for the magistrate to have accepted the final report on the opinion of the Investigating officer that there was no independent witness available and thus the cases appeared to be a concocted one. It is argued that such an opinion can and should not be forwarded by an investigating officer and such discussion of evidence on merits must be left to the courts. I have no hesitation in accepting this argument. It is argued that such an opinion can and should not be forwarded by an investigating officer and such discussion of evidence on merits must be left to the courts. I have no hesitation in accepting this argument. Sri Tiwari has placed reliance upon the cases reported in 1986 Criminal Law Journal 866, AIR 1988 Patna page 15, 1981 Allahabad Criminal Rulings 721 and 1988 Criminal Law Journal page 199. Sri P. S. Adhikari learned AG A has also supported the argument of Sri Tiwari and has further added that in the instant case the magistrate had no criminal complaint before him and bad not recorded the statement of any complainant on oath and, therefore, Chapter XV of the Criminal Procedure Code had never opened up. It is argued that the instant order of the Magistrate was on the basis of the police report. 9. In so far as the authority cited by the learned counsel for the applicant is concerned, I may point out that in none of those any reference to Bhagwant Singh's case has been made and in each of those cases, law was laid down on the facts involved therein. As I have said above, it is no more possible for this court to resolve the controversy without taking into consideration the law laid down in Bhagwant Singh's case. Therefore, on a combined reading of the decision of the Supreme Court and the provisions contained in Criminal Procedure Code, it must be held that the magistrate is empowered to take cognizance on the police report and summon the accused even though the investigating officer has in the said report opined that no offence was made out against the accused when the magistrate rejects the said opinion after hearing the informant and considering the application and material including the affidavits Produced before him. 10. The controversy having been resolved thus, the order of the Magistrate was perfectly valid and legal and has to be upheld. The result, therefore, no case for interference, in exercise of inherent powers, with the order of the Magistrate is made out. The application is accordingly rejected. The interim order is vacated. Application dismissed.