Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1338 (RAJ)

Shanti v. State of Rajasthan

2012-05-21

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—The instant revision petition has been preferred by the petitioner complainant being aggrieved of the order dated 20.9.2011 passed by the learned Sessions Judge, Merta, in revision whereby the learned revisional Court whilst reversing the order dated 10.6.2011 passed by the ACJM, Merta, has directed the trial Court to reconsider the matter after providing an opportunity of hearing to the petitioner as well as the respondent-accused persons. 2. The grievance of the learned counsel for the petitioner is that the learned Magistrate had taken cognizance against the respondents No.2 and 3. They challenged the order of the learned Magistrate by filing a revision and the revisional Court whilst setting aside the order passed by the learned Magistrate, has directed the learned Magistrate to reconsider the matter but at the same time has observed that the accused as well as complainant shall be entitled to be heard by the Magistrate. It is submitted by the learned counsel for the petitioner that at the stage when the Magistrate is to consider the case for the purpose of proceeding on a complaint, the accused persons have no right of hearing and it is only the complainant, who is entitled to be heard at that stage. He, therefore, submits that the order passed by the learned Sessions Judge, Merta, deserves to be modified and now a direction be issued that the learned Magistrate should pass an appropriate order after hearing the petitioner only in the matter. 3. To this suggestion, learned counsel for the respondents No.2 and 3 also does not object and rightly so. 4. The Hon'ble Apex Court in the celebrated case of Bhagwant Singh vs. Commissioner of Police & Anr., reported in AIR 1985 SC 1285 considering aspect regarding he right available to the aggrieved person for being provided with an opportunity of being heard, when he decides that there is no ground to proceed upon a report forwarded to him u/S. 173(2)(ii) Cr.P.C. held as below: "It will be seen from the provisions to which we have referred in the preceding paragraph that when an informant lodges the First Information Report with the officer in charge of a police station, he does not fade away with the lodging of the First Information Report. He is very much concerned with what action is initiated by the officer in charge of the police station on the basis of the First Information Report lodged by him. No sooner he lodges the First Information Report, a copy of it has to be supplied to him, free of cost, under sub-section (2) of Sec. 154. If, notwithstanding the First Information Report, the officer in charge of a police station decides not to investigate the case on the view that there is no sufficient ground for entering on an investigation, he is required under sub-sec. (2) of Sec. 157 to notify to the informant the fact that he is not going to investigate the case or cause it to be investigated. Then again, the officer in charge of a police station is obligated under sub-sec. (2)(ii) of Sec. 173 to communicate the action taken by him to the informant and the report forwarded by him to the Magistrate under sub-sec. (2)(i) has therefore to be supplied by him to the informant. The question immediately arises as to why action taken by he officer in charge of a police station on the First Information Report is required to be communicated and the report forwarded to the Magistrate under sub-sec. (2)(i) of Sec. 173 required to be supplied to the informant. Obviously, the reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know what is the result of the investigation initiated on the basis of the First Information Report. The informant having taken the initiative in lodging the First Information Report with a view to initiating investigation by the police for the purpose of ascertaining whether any offence has been committed and, if so, by whom, is vitally interested in the result of the investigation and hence the law requires that the action taken by the officer in charge of a police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under sub-section (2)(i) of Section 173 should also be supplied to him. 4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of Sec. 173 comes up for consideration by the Magistrate, one of two different situations may arise. 4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of Sec. 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Sec. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient for proceedings against others mentioned in the first Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first Information Report lodged by him is clearly recognized by the provisions contained in sub-sec. (2) of Sec. 154, sub-sec. (2) of Sec. 157 and sub-sec. Moreover, when the interest of the informant in prompt and effective action being taken on the first Information Report lodged by him is clearly recognized by the provisions contained in sub-sec. (2) of Sec. 154, sub-sec. (2) of Sec. 157 and sub-sec. (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. 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 Sec. 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 sub-sec. (2)(i) of Sec. 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. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of Sec. 173 and if hat be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate. 5. The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Criminal P.C., 1973 or from the principles of natural justice, any 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, unless such person is the informant who has lodged the First Information Report. 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. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by eh Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report. 5. From the above observations made by the Hon'ble Apex Court, it is evident that only the complainant has been given the right to canvass his case before the Magistrate at the pre-cognizance stage and not the accused. 6. 5. From the above observations made by the Hon'ble Apex Court, it is evident that only the complainant has been given the right to canvass his case before the Magistrate at the pre-cognizance stage and not the accused. 6. Therefore, the direction issued by the learned Sessions Judge, Merta in the order impugned providing the respondents No.2 and 3 an opportunity of hearing by the learned Magistrate at the pre-summoning stage, is absolutely illegal. 7. The revision petition, thus, succeeds and whilst the order of remand passed by the Sessions Judge, Merta is upheld, the direction issued that respondents No.2 and 3 shall also be heard before cognizance is taken, is qua-shed. The Magistrate is directed to proceed with the matter after providing an opportunity of hearing to the petitioner. The stay petition is also disposed of.