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Rajasthan High Court · body

2012 DIGILAW 1564 (RAJ)

Kamal Kishore v. State of Rajasthan

2012-07-16

SANDEEP MEHTA

body2012
Ashok Prajapat, P.P. Hon'ble MEHTA, J.—Heard learned counsel for the petitioner and learned Public Prosecutor. 2. The instant misc. petition has been moved by the petitioner-complainant being aggrieved of the order dated 6.12.2010 passed by the learned Additional Sessions Judge (Fast Track) No.1, Pali, Headquarter Jaitaran, in Sessions Case No.31/2010, whereby he has affirmed the order dated 17.2.2009 passed by the learned Judicial Magistrate, Ist Class, Bar, District Pali in Cr. Case No. 203/2009. 3. An F.I.R. was filed by the petitioner for the offences under Sections 147, 148, 427, 436 and 380 IPC and after investigation, the Police chose to charge-sheet some of the accused whilst some were left out. 4. The petitioner being the complainant in the case submitted an application under Section 190 of the Cr.P.C. in the Court of the learned Judicial Magistrate with the prayer that the non-charge-sheeted accused should also be summoned to face trial in the case. The learned Magistrate noted in the order dated 17.2.2009 that the application was filed by the petitioner for summoning the accused but did not decide the same on merits. Thereafter the petitioner moved an application with the same prayer before the Committal Court and such application has been rejected by order dated 6.12.2010. Hence, the petitioner has approached this Court by way of the instant misc. petition with the prayer that the Magistrate be directed to decide the application filed by the petitioner on merits. 5. In the opinion of this Court, if the Police chooses not to file a charge-sheet against some of the persons, who were arrayed as accused by the complainant, then the complainant has a right to agitate this issue before the Magistrate and the Magistrate while exercising powers under Sec. 190 r/w Sec. 204 Cr.P.C. can direct summoning of the non-charge-sheeted accused also. 6. The Hon'ble Apex Court in the case of Bhagwat Singh vs. Commissioner of Police & Anr. reported in AIR 1985 1285 has held that even if the Police chooses to file a partial charge-sheet, the complainant has a right to be intimated bout the same so that he can agitate the issue regarding some of the accused not having been charge-sheeted. It was held as under: "It is necessary to refer to a few provisions of the Criminal P.C., 1973 in order to arrive at a proper determination of this question. It was held as under: "It is necessary to refer to a few provisions of the Criminal P.C., 1973 in order to arrive at a proper determination of this question. Chapter XII of the Criminal P.C., 1973 deals with information to the police and their powers to investigate. Sub-sec. (1) of Sec. 154 provides that every information relating to the commission of a cognizable offence, if, given orally to an officer-in-charge of a police station, shall be reduced in writing by him or under his direction and be read over to the informant' and every such information, whether given in writing or reduced to writing, shall be signed by the person giving it and sub-section (2) of that section requires that a copy of such information shall be given forthwith, free of cost, to the informant. Section 156 sub-section (1) vests in the officer-in-charge of a police station the power to investigate any cognizable case without the order of a Magistrate and sub-sec. (3) of that section authorizes the Magistrate empowered under Sec. 190 to order an investigation as mentioned in sub-sec. (1) of that section. Section 157 sub-section (1) lays down that if, from information received or otherwise an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under S. 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender. But there are two provisions to this sub-section. Proviso (b) enacts that if it appears to the officer in charge of a police station that there is no sufficient ground for entering on a investigation, he shall not investigate the case, but in such a case, sub-sec. (2) of Sec. 157 requires that the officer shall forthwith notify to the informant the fact that he will not investigate the case or cause it to be investigated. What the officer in charge of a police station is required to do on completion of the investigation is set out in Section 173. (2) of Sec. 157 requires that the officer shall forthwith notify to the informant the fact that he will not investigate the case or cause it to be investigated. What the officer in charge of a police station is required to do on completion of the investigation is set out in Section 173. Sub-section (2)(i) of Sec. 173 provides that as soon as investigation is completed, the officer in charge of a police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government setting out various particulars including whether, in the opinion of the officer, any offence appears to have been committed and if so, by whom. Sub-section (2)(ii) of Sec. 173 states that the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. Section 190 sub-section (1) then proceeds to enact that any Magistrate of the first class specially empowered in this behalf under sub-sec. (2) may take cognizance of any offence : (a) upon receiving a complaint of facts which constitute such offence or (b) upon a police report of such facts or (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. We are concerned in this case only with clause (b), because the question we are examining here is whether the Magistrate is bound to issue notice to the first informant or to the injured or to any relative of the deceased when he is considering the police report submitted under Sec. 173 sub-section (2). 3. 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 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-sec. (2) of Sec. 154. He is very much concerned with what action is initiated by the officer 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-sec. (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 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 the 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 ascer-taining 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-sec. (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 Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. (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 Section 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 he 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 ground for proceeding 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. 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 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 that 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 even, 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." 7. This Court in the case of Smt. Sarla Devi vs. State of Rajasthan & Anr. in S.B. Cr. Misc. Petition No.1348/2010, decided on 6.4.2012 has held that the Court need not wait till the stage of Section 319 Cr.P.C. for summoning the persons, who are not charge-sheeted by the Police. The Magistrate has the powers to summon the non-charge-sheeted persons even on the basis of the partial charge-sheet persons even on the basis of the partial charge-sheet and the material collected by the investigating agency even in cases involving sessions triable offences. 8. In this case, the learned Magistrate did not decide the application filed by the petitioner under Section 190 Cr.P.C. despite the same having been filed when the charge-sheet was laid before the Magistrate. 9. As such, the misc. petition is allowed and now the file of the Sessions Case No. 31/10 shall be sent back to the learned Judicial Magistrate and the learned Judicial Magistrate shall decide the application filed by the petitioner under Section 190 Cr.P.C. in accordance with law. . .