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Madhya Pradesh High Court · body

2008 DIGILAW 1283 (MP)

Sangeeta Sharma v. State of M. P.

2008-11-04

B.M.GUPTA

body2008
ORDER 1. This revision has been preferred by the petitioner-complainant Dr. Smt. Sangeeta Sharma, impugning the order dated 27th September 1995 passed by Additional Chief Judicial Magistrate, Gwalior on FR filed by Mahila Police, Gwalior in Crime No. 6/94 registered against respondent No.2 Umendra Mohan Sharma on the FIR lodged by the applicant (upon perusal of the original order, the date of the order is not clear, it may be 21st September or 27th September 1995, but as agreed to by both the parties, the aforementioned date has been accepted). 2. The facts in brief as agreed to by both the parties are that the petitioner, who is the wife of respondent No.2, has lodged one written FIR against her husband, respondent No.2, on which the aforementioned crime was registered for the offence punishable under section 498-A IPC and section 3/4 of the Dowry Prohibition Act, 1961. After the investigation, FR No. 1 of 14th January 1995 was submitted by the Investigating Officer before the learned Magistrate with the following report -- ^^?kVuk dk laf{kIr fooj.k% izdj.k esa Qfj;knh MkW- laxhrk 'kekZ us llqjky ds yksxksa ds fo:) fjiksVZ dh Fkh ftldk vijk/k dzekad 6@94 /kkjk 498 ¼,½ ,Q vkj 3@4 ngst izfr"ks/k vf/kfu;e iathc) fd;k x;kA pwafd Qfj;kfn;k laxhrk 'kekZ dk vius ifr MkW- HkwisUnz eksgu 'kekZ ls jkthukek gks x;k gS vkSj og bl laca/k esa mPp vf/kdkfj;ksa }kjk Hkh tkap dh xbZ gSA izdj.k esa mPp vf/kdkfj;ksa us jk; nh gS fd izdj.k esa ,Q-vkj- drk dh tkosA vr% ,Q- vkj- 01@14-01-1995 dh xbZA** On the report itself and not on a separate order sheet, the following impugned order has been passed by the Learned Magistrate by hand: ^^vafre izfrosnu% iqfyl v/kh{kd Xokfy;j }kjk ,Q-vkj- Lohd`r gsrq izkIr dsl Mk;jh ds voyksdu ls Li"V gksrk gS fd mi iqfyl egkfujh{kd }kjk Lohd`fr dh xbZ gSA Mk;jh esa Qkfj;kfn;k dk vfHk;qDr ls jkthukek gksus dk 'kiFk Ik= ,oa ftyk U;k;ky; Hkksiky ds vkns’k fnukad 29-09-1994 ds vuqlkj jkthukek mHk;Ik{k ds e/; fd;k x;k gSA mDr fLFkfr esa ,Q-vkj- Lohd`r fd;k x;kA** 3. During arguments, Shri Pateria, learned counsel for the petitioner has assailed the impugned order on the ground that the petitioner, who is the complainant in the case was not heard before accepting the FR which was mandatory for the learned Magistrate. During arguments, Shri Pateria, learned counsel for the petitioner has assailed the impugned order on the ground that the petitioner, who is the complainant in the case was not heard before accepting the FR which was mandatory for the learned Magistrate. In support he has drawn attention to the judgment of the apex Court in the case of Bhagwant Singh v. Commissioner of Police and another reported in AIR 1995 SC 1285. Although nothing has been mentioned in the revision petition, yet Shri Pateria, Advocate on behalf of the petitioner has disputed the correctness of the affidavit and the order sheet of the Court as referred in the order. 4. On behalf of the respondents, Shri C.S. Dixit, learned P.P. for the tate and Shri Shailendra Singh, learned counsel for the respondent No.2 have jointly submitted that the affidavit filed by the petitioner and the order sheet is genuine and on the basis of these documents, as is apparent from the impugned order, being satisfied with the fact of compromise, 1e learned Magistrate has passed the order and accepted the FR. In such circumstances, there was no necessity of providing further opportunity f hearing to the petitioner. However, it is admitted by them that when 1e FR was presented before the learned Magistrate, no opportunity of earning was provided to the petitioner by him. 5. The following observation of the apex• Court in para 4 of the aforementioned judgment appears relevant to be quoted in the case, which goes as under: "4. ...... There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2) (i) of S. 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under subsection (2) (i) of S. 173 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.......". 6. As observed by the apex Court, when a report under section 173 2) of the CrPC is submitted to a Magistrate by the Investigating Officer land the Magistrate chooses not to take cognizance of offence or drop the proceedings against the accused or accused persons mentioned in the FIR, it is obligatory for him to provide an opportunity of hearing by issuance of the notice to the complainant. Admittedly, in the instant case, he aforesaid opportunity has not been provided. The documents referred n the impugned order included in the cases diary are genuine or not, no )pinion is required to be given by this Court at this stage as the same will require recording of evidence and also for decision of this revision, that appears not necessary. The observation of the apex Court is based on the principle of natural justice. The complainant who moves the criminal law into motion is entitled to know its result. Despite the fact that the case diary papers including the affidavit etc. indicate the willingness 0 the complainant, if the result of investigation goes against him/her, before approving the same the Magistrate is required to provide an opportunity of hearing to such complainant. As no such opportunity of hearing has been given in the, case, hence the order appears erroneous and deserves to be set aside. 7. Consequently, the revision is allowed. The impugned order is set aside. It is directed that the learned Magistrate shall provide an opportunity of hearing to the petitioner and then pass the order on F R submitted by the Investigating Officer before him. Petitioner is directed to appear before the learned Magistrate on 29.1.2008 for seeking further directions in compliance of this order.