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2007 DIGILAW 409 (PAT)

Barister Rao v. State Of Bihar

2007-02-22

MADHAVENDRA SARAN

body2007
Judgment 1. This application under Section 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 10.7.2002 passed by learned Chief Judicial Magistrate, Bettiah in Complaint Case No. 499(C) of 2001 by which he dismissed the complaint petition under Section 203 of the Code. By filing supplementary affidavit further prayer has been made to quash the order dated 16.1.2002 passed by learned Chief Judicial Magistrate by which the final form has been accepted without hearing the petitioner informant. 2. It appears that the petitioner filed a petition of complaint vide Complaint Case No. 612C/2001 against opposite party nos. 2 to 18 in the Court of Chief Judicial Magistrate Bettiah, District-West Champaran, a copy of which was sent to Mufassil Police Station under Section 156(3) of the Code for registration and investigation on the basis of which Mufassil P.S. Case No. 114/01 dated 5.6.2001 was registered in which the police after investigation submitted final report as untrue. It appears that after 31.9.2001 the said final report was received in the Court of Chief Judicial Magistrate, Bettiah. When the matter was under the police investigation, the informant on 22.6.2001 filed a protest petition. On receipt of final report, notice was issued to the informant and the learned Magistrate by order dated 16.1.2002 accepted the final report and treated the protest petition as complaint and transferred the case to his personal file for examination of complainant on solemn affirmation. It is said that no notice was given to the informant and the learned Magistrate by order dated 18.7.2002 dismissed the complaint. 3. The submission of learned counsel for the petitioner is that final report submitted by the police was received in the Court of Chief Judicial Magistrate Bettiah some time after 31.9.2001. On 16.11.2001 the learned Chief Judicial Magistrate directed the office to notice the informant about the reciept of the final report and posted the case to 4.12.2001 for return of service report of notice. On 16.11.2001 the learned Chief Judicial Magistrate directed the office to notice the informant about the reciept of the final report and posted the case to 4.12.2001 for return of service report of notice. His further submission is that the record was not put up on 4.12.2001 and it was put up on 16.1.2002 when the learned Incharge Chief Judicial Magistrate accepted the final report and treated the pending protest petition as petition of complaint and transferred the record to his personal file for examination of complainant on S.A. Further submission is that without hearing the informant, the learned Magistrate accepted the final report which is illegal. In support of his contention, learned counsel placed reliance on a decision reported in AIR 1985 Supreme Court 1285 given in the case of Bhagwant Singh V/s. Commissioner of Police and Another. 4. Learned counsel for opposite party Nos. 2 to 18 on the other hand, submitted that the informant had full knowledge about the submission of final report and in spite of that he did not turn up in court on 16.1.2002 to place his case. 5. Learned A.P.P. submitted that as per order given by learned Chief Judicial Magistrate on 16.11.2001 notice was issued directing the informant to appear in court on 4.12.2001 at 10.30 and the said notice was served also. 6. The lower court record has been received and it appears that the final report submitted by the Police was received in the court below some time after 31.9.2001 and it was directed to be put up before the Magistrate on 16.11.2001. On 16.11.2001 the learned Chief Judicial Magistrate directed the office to notice the informant and posted the case to 4.12.2001 awaiting service report of the notice. It appears that the record was not put up on 4.12.2001. It appears that on 2.1.2002 a petition was filed on behalf of the informant but it was not pressed and on 16.1.2002 learned Incharge Chief Judicial Magistrate accepted the final report without hearing the informant. It appears that the record was not put up on 4.12.2001. It appears that on 2.1.2002 a petition was filed on behalf of the informant but it was not pressed and on 16.1.2002 learned Incharge Chief Judicial Magistrate accepted the final report without hearing the informant. In the decision relied upon by the petitioner, it has been observed: "In a casse where the Magistrate to whom a report is forwarded under sub-section (2) of Section 173 of the Code decides not to take cognizance of 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 given notice to the informant and provide him an opportunity to be heard at the time of consideration of the report." 7. From what has been mentioned it is clear that the informant petitioner had no notice that the learned Incharge Chief Judicial Magistrate was going to pass final order on 16.1.2002 on the final report submitted by the police. The order dated 16.1.2002 was passed in absence of informant of which he had no knowledge. Thus the order dated 16.1.2002 passed by learned Incharge Chief Judicial Magistrate is not sustainable in the eye of law. 8. There is also nothing in the lower court record to show that after the case was transferred to the personal file of C.J.M. for examination of complainant on solemn affirmation, any notice of the same was given to the informant In such situation the order dated 10.7.2002 is also not sustainable in the eye of law. 9. In the aforeaid facts and circumstances this application is allowed and the two impugned orders dated 16.1.2002 and 10.7.2002 are hereby quashed. The matter is remanded back to learned Chief Judicial Magistrate who shall give fresh notice to the informant before passing any order on the final report and thereafter he shall proceed in accordance with law.