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2010 DIGILAW 191 (GUJ)

Natvarlal Ambalal Patel v. State of Gujarat

2010-04-08

A.L.DAVE

body2010
JUDGMENT : A.L. Dave, J. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner – original complainant challenges the order passed by the learned Chief Judicial Magistrate, Mehsana in Inquiry Case No. 115 of 1986 passed on 30.3.1990 discharging respondent Nos. 2 to 10 from the charges in the said Inquiry case arising from M Case No. 49 of 1986. The petitioner is the original complainant. The said order was challenged by the petitioner by preferring Criminal Revision Application No. 83 of 1990 before the Sessions Court, Mehsana under Section 397 of Cr PC. The Sessions Court, Mehsana Camp at Patan by judgment and order dated 3.2.1993 dismissed the said revision application and, therefore, this petition to challenge both the orders. 2. The challenge to the order by the Chief Judicial Magistrate was basically on the ground of not affording audience to the petitioner – the complainant/informant before passing the impugned order accepting the report on action taken by the Investigating Officer under Section 169 of Cr PC. Reliance was placed on the decision of the Apex Court as reported in Bhagwant Singh v. Commissioner of Police & Anr., AIR 1985 SC 1285 . The revisional Court, however, did not accept the contention raised by the present petitioner by observing that the report under Section 169 of Cr. PC made by the Investigating Officer, even if it is accepted without hearing the petitioner, is not likely to cause any prejudice to the complainant. Error, if any, can be rectified by resorting to Section 319 of Cr PC. 3. Heard learned advocate Mr. Unwala for the petitioner. He has mainly relied on the decision in the case of Bhagwant Singh (supra) and submitted that for the purposes of the complainant, the decision of the Court is final in discharging the accused persons and the petitioner - complainant would be required then to resort to and depend on the circumstances which may or may not arise for invoking Section 319 of Cr PC. If the complainant is heard before accepting the report and if the Magisterial Court finds that there is an error in making of report, it may not accept the report and may direct further investigation which would eliminate the chances of uncertainty and any prejudice being caused to the complainant/informant. 4. Learned advocate Mr. If the complainant is heard before accepting the report and if the Magisterial Court finds that there is an error in making of report, it may not accept the report and may direct further investigation which would eliminate the chances of uncertainty and any prejudice being caused to the complainant/informant. 4. Learned advocate Mr. AD Shah for respondent No. 6 has opposed this petition. According to him, no prejudice is caused to the complainant. There is no provision in law which requires the Court to hear the complainant before accepting the report in respect of action under Section 169 of Cr PC and the Courts below cannot be said to have committed any error. 5. Respondent No. 1-State is represented by learned APP Mr. Parikh. Though notices are served on respondent Nos. 2 to 5, 8 and 9 they have chosen not to contest this petition. Learned advocate Mr. Satta for respondent No. 7, learned advocate Mr. Param Buch for Mr. Hriday Buch for respondent No. 11 and learned advocate Mr. Siddharth Dave for Mr. Jani for respondent No. 12 have adopted the arguments of Mr. Shah. Ms. Shilpa R Shah for respondent No. 10 is not present. 6. The question that emerges for determination is, whether a complainant is required to be heard before the Court accepts a report made by Investigating Officer in respect of his action taken under Section 169 of Cr.PC, commonly addressed to as a report under 169 ? 7. In the opinion of this Court, to call such a report as a report under Section 169 is not a correct or accurate expression. Section 169 of Cr PC, if seen, it deals with the release of the accused when there is deficient evidence. The Section runs as under :- "169. If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial." 8. A plain reading of this Section would go to show that it makes obligatory upon the Investigating Officer to release the accused on his executing a bond with or without sureties, if the Investigating Officer finds that the evidence is not sufficient or that there is no reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. When such a person is released, a bond is to be obtained with or without sureties requiring him to appear before a Magistrate empowered to take cognizance of offence on a police report and to try the accused or commit him for trial. The Section nowhere contemplates making of a report by the Investigating Officer or office in-charge of the police station. It contemplates only an action at the hands of officer in-charge of police station to release an accused on bond with or without sureties, if there is absence of sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate upon an investigation under the Chapter. Therefore, when a police officer makes a report to the Magistrate about his action taken under Section 169 of Cr. P.C., it is not a report under 169 but it is a report on the action taken by I.O. or by Officer in charge of a police station. 9. It may be stated that an attempt is made to distinguish such a report from a report under Section 173 of Cr. P.C. by stating that the judgment in the case of Bhagwant Singh (supra) will not apply to the facts of the present case, as in that case, the report was under Section 173(2) of Cr PC and not under Section 169 of Cr. P.C., like in the present case. 10. P.C. by stating that the judgment in the case of Bhagwant Singh (supra) will not apply to the facts of the present case, as in that case, the report was under Section 173(2) of Cr PC and not under Section 169 of Cr. P.C., like in the present case. 10. In fact if the provisions contained in Section 173 of Cr PC are seen, they deal with a situation where upon completion of investigation, the officer in-charge of the police station is required to forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government indicating the names of parties, nature of information, the names of persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have committed and, if so, by whom, whether he has been released on bond and, if so, with or without sureties and whether he has been forwarded in custody under Section 170. 10.1 If a conjoint reading is given to Section 169 it contemplates action upon investigation whereas Section 173 requires making of a report. Section 169 does not contemplate making of a report but it only contemplates taking of bond with or without sureties from the accused to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and such police report is contemplated under Section 173 of Cr P.C. Clauses (d) and (f) of Section 173(2)(i) are relevant, which run as under :- 173. Report of police officer on completion of investigation. (2)(i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating - (a) to (c) ... ... ... ... (d) whether any offence appears to have been committed and, if so, by whom; (e) ... .. ... .. ... ... (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) .. ... ... ... ... ... ... (d) whether any offence appears to have been committed and, if so, by whom; (e) ... .. ... .. ... ... (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) .. ... ... ... 10.2 Clause (d) requires the report to state whether any offence appears to have been committed and, if so, by whom and clause (f) requires the report to contain the details as to whether the accused has been released on his bond and, if so, with or without sureties. These two clauses would mean that the report would contain whether the offence appears to have been committed and if so, by whom. Necessarily, therefore, such persons will have to be forwarded to the Magistrate with the details of the offence. If it is found not to have been committed, then by whom. Therefore, when there are more than one persons accused of some offence and if at the end of investigation, the Investigating Agency finds that only some of them appear to have committed the offence and some of them appear not to have committed the offence, the details of both the categories will have to be included. The report would also indicate whether the accused has been released on his bond which would also include release of accused under Section 169 of Cr PC. Differently put, the provisions contained in Cr PC, particularly Chapter XII do not contemplate any other report than Section 173 report, least a report under section 169. 11. The Supreme Court in the case of Bhagwant Singh (supra) has taken a view that where a Magistrate decides not to take cognizance of offence or drops proceedings against some persons mentioned in the FIR, the Magistrate must give notice and hear the first informant. 12. In a more recent case in the case of Minu Kumari v. State of Bihar as reported in (2006) 4 SCC 359 , the Apex Court made the following observations :- "12. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. 12. In a more recent case in the case of Minu Kumari v. State of Bihar as reported in (2006) 4 SCC 359 , the Apex Court made the following observations :- "12. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. This Court in Bhagwant Singh v. Commr. of Police [ (1985) 2 SCC 537 ] held that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard." 13. The view in the case of Bhagwant Singh (supra) is thus reaffirmed. The Supreme Court has dealt with cases of reports where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, which is termed variously as referred charge or final report or summary, i.e. a situation contemplated under Section 169 of Cr. P.C. It is also observed that Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. The Court found that where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, which is a situation contemplated under Section 169 of Cr. P.C., the informant would certainly be prejudiced as the first information report lodged by him becomes wholly or partially ineffective. 14. P.C., the informant would certainly be prejudiced as the first information report lodged by him becomes wholly or partially ineffective. 14. Thus, before accepting the report of the Investigating Agency of either proceeding against only some of the accused persons and dropping the proceedings against rest of them or dropping the proceedings against all the accused persons, it is mandatory that the Magisterial Court hears the informant/complainant. The Magisterial Court having not done that and the Sessions Court having upheld the view committed error in doing so. 15. The petition, therefore, merits acceptance and the same is accepted. The order dated 30.3.1990 passed by the learned Chief Judicial Magistrate, Mehsana in Inquiry Case No. 115 of 1986 and the order dated 3.2.1993 passed by the Sessions Court, Mehsana Camp at Patan in Criminal Revision Application No. 83 of 1990 are hereby set aside. The Chief Judicial Magistrate is hereby directed to take a decision on the report of the Investigating Officer afresh after giving audience to the first informant/complainant. Rule is made absolute accordingly. It is made clear that this Court has not entered into the merits of the report and the Magistrate shall decide the same without being influenced by this judgment. Order accordingly.