Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 860 (RAJ)

Ramesh Chandra Kachhawa v. State of Rajasthan

2002-04-24

HARBANS LAL

body2002
JUDGMENT 1. - This petition u/s. 482 Cr.P.C. has been filed on behalf of the petitioner-complainant for quashing the order dated 24.11.2001 passed by the learned Special Judge, (Prevention of Corruption Act Cases), Jodhpur whereby F.R. has been accepted without affording any opportunity of hearing. 2. Briefly stated, the relevant facts are that on the complaint made by the petitioner-complainant on 7.9.2000, after a preliminary enquiry an FIR No. 56/2001 was registered on by the Anti Corruption Bureau, Jodhpur for the offences u/ss.13(1)(D)(2) of Prevention of Corruption Act and Secs. 467, 468, 471 & 120-B IPC wherein it was alleged that illegalities and irregularities have been committed by the officers of Municipal Council in the construction work undertaken by it especially, in the construction of water tank wherein tenders were called for the work approximately of the amount of Rs. 3.50 lakhs whereas the construction work was undertaken for more than Rs. 6 lakhs. But after investigation, the Addl. S.P., Anti Corruption Bureau, Jodhpur submitted a F.R. before the Special Judge which was accepted vide the impugned order without giving any notice to the petitioner and without affording him any opportunity of hearing. Hence, this petition, learned counsel for the petitioner has argued on the strength of an authority of the Hon'ble Supreme Court in case of Bhagwant Singh v. Commissioner of Police & Anr., reported in AIR 1985 SC 1285 that the Court was duty bound and under legal obligation to give notice and hear the first informant before accepting the F.R. submitted by the police. The learned lower Court having not done so has committed illegality and this is abuse of process of the Court. Therefore, the impugned order may be set side and the matter may be remitted to the Court below with a direction to pass appropriate orders after affording an opportunity of hearing to the petitioner. 3. Learned Public Prosecutor also could not dispute this settled legal position. 4. A bare perusal of the impugned order makes it clear that the petitioner was neither given any notice nor any opportunity of hearing before acceptance of the final report. 5. 3. Learned Public Prosecutor also could not dispute this settled legal position. 4. A bare perusal of the impugned order makes it clear that the petitioner was neither given any notice nor any opportunity of hearing before acceptance of the final report. 5. In the aforesaid authority, the Hon'ble Apex Court has clearly laid down that : "In a case where the Magistrate to whom a report is forwarded u/s. 173(2) decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. However, either from the provisions of the Criminal Procedure Code or from the principles of natural justice, no obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report can be spelt out, unless such person is the informant who has lodged the FIR. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report." 6. Thus, it is apparent from the aforementioned authority that before accepting the F.R. submitted in the case u/s. 173 Cr.P.C., the learned Court has to afford an opportunity to the complainant or the person lodging the FIR. This having not been done in this case, the impugned order is not sustainable. 7. In the result, this petition is allowed and the impugned order dated 24.11.2001 passed by the learned Special Judge (Prevention of Corruption Act Cases), Jodhpur is hereby quashed and the matter is remitted back to him with a direction that appropriate orders be passed afresh on the final report after affording an opportunity to the complainant. The complaint/petitioner is directed to appear before the concerned Court on 27.5.2002.Petition allowed. *******