Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 158 (GAU)

Arjun Majumder v. State of Tripura

2012-02-06

SUBHASIS TALAPATRA

body2012
JUDGMENT Hon'ble Mr. Justice S. Talapatra 1. Heard Mr. S. Sarkar, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned Addl. Public Prosecutor representing State-respondent. 2. This petition has been filed under Section 397 read with Section 401 of the Criminal Procedure Code,1973 against the order dated 05.11.2003 as passed by the learned Chief Judicial Magistrate, West Tripura, Agartala, in Misc.137/2003. 3. The genesis of the protest petition as found in the Lower Court Records has its root in the order of acceptance of the Final Report as furnished by the Investigating Officer in connection with Bishalgarh P.S. Case No.18/1999 under Sections 395/397 of Indian Penal Code by the order dated 20.08.1999. 4. Mr. Sarkar, learned counsel appearing for the petitioner submits that the petitioner had no knowledge that the Final Report as submitted by the Investigating Officer on 22.07.1999 was accepted by the order dated 20.08.1999. When he gathered knowledge about the said development, he, without any delay submitted a protest petition in the court of the learned Chief Judicial Magistrate, West Tripura, Agartala, on 23.08.2003, stating inter alia that the police had given the purported report without investigating the case properly and also submitted the final form without appending the necessary statements and documents as per law. Apart that, he submitted with vehemence that the order dated 20.08.1999 was passed without any notice to him. After hearing the said petition, the learned Chief Judicial Magistrate, West Tripura, Agartala, passed the impugned order, dated 05.11.2003, which is extracted hereunder : 5.11.03. I heard Ld. Counsel of both side on 16-9-2003 on the protest petition against acceptance of final report dated 20-8-1999 by this Court of Bishalgarh P.S. Case No.18/99, and as there was no time today is the date fixed for. I have gone through the protest petition and other relevant papers as pressed in the file. The order dated 20-8-99 stands good unless or until it is set aside by the Appellate Court and this court has no jurisdiction to direct the Police for further investigation of the case by setting aside it's own order and as such prayer to send back the case to the police for further investigation U/S. 173(8) of Cr.P.C. stands rejected. 5. 5. The main contention in the protest petition was that the learned Chief Judicial Magistrate by accepting the Final Report without notice to the informant, the petitioner herein, had committed serious breach of law as expounded by the Supreme Court. On the face of such contentions the impugned order dated 05.11.2003 having been passed without notice, gave rise to occasion for the petitioner to set this revisional petition in motion. 6. It is trite law in view of the decision in Bhagwant Singh vs. Commissioner of Police & Anr. as reported in 1985 CRI.L.J. 1521 that the informant has got a precious right of afforded with opportunities of hearing on the final report with observation that no prima facie case could be made out after culmination of investigation. For elucidation of the said law that the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report, the paragraph Nos. 1,4 and 5 of the said law report are extracted hereunder : 1. The short question that arises for consideration in this writ petition is whether in a case where first information report is lodged and after completion of investigation initiated on the basis of the first information report, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceeding without issuing notice to the first informant or to the injured or in case the incident has resulted in death, to the relatives of the deceased. It is not necessary to state the facts giving rise to this writ petition, because so far as this writ petition is concerned, we have already directed by our order dated 28th November, 1983 that before any final order is passed on the report of the Central Bureau of Investigation by the Chief Metropolitan Magistrate, the petitioner who is the father of the unfortunate Gurinder Kaur should be heard. Gurinder Kaur died as a result of burns received by her and allegedly she was burnt by her husband and his parents on account of failure to satisfy their demand for dowry. Gurinder Kaur died as a result of burns received by her and allegedly she was burnt by her husband and his parents on account of failure to satisfy their demand for dowry. The circumstances in which Gurinder Kaur met with her unnatural death were investigated by the Central Bureau of Investigation and a report was filed by the Central Bureau of Investigation in the Court of the Chief Metropolitan Magistrate on August 11, 1982 stating that in their opinion in respect of the unnatural death of Gurinder Kaur no offence appeared to have been committed. The petitioner was however not aware that such a report had been submitted by the Central Bureau of Investigation and he, therefore, brought an application for initiating proceedings for contempt against the Central Bureau of Investigation on the ground that the Central Bureau of Investigation had not completed their investigation and submitted their report within the period stipulated by the Court by its earlier order dated May 6, 1983. It was in reply to this application for initiation of contempt proceedings that the Central Bureau of Investigation intimated that they had already filed their report in the Court of the Chief Metropolitan Magistrate on August 11, 1982 and the report was pending consideration by the Chief Metropolitan Magistrate. When this fact was brought to our notice we immediately passed an order dated November 28, 1983 directing that the petitioner should be heard before any final order was passed on the report. There was no objection on the part of the respondents to the making of this order, but since the question whether in cases of this kind, the first informant or any relative of the deceased or any other aggrieved person is entitled to be heard at the time of consideration of the report by the Magistrate and whether the Magistrate is bound to issue notice to any such person, is a question of general importance which is likely to arise frequently in criminal proceedings, we thought that it would be desirable to finally settle this question so as to afford guidance to the courts of Magistrates all over the country and we accordingly proceeded to hear the arguments on both sides in regard to this question. 4. 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 the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 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 recognised by the provisions contained in subsection (2) of Section 154, sub-section (2) of Section 157 and sub-section (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 Section 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-section (2)(i) of Section 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 Section 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 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 Code of Criminal Procedure, 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 the 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 the 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. 7. Mr. Ghosh, learned Addl. Public Prosecutor in his usual fairness submits that the impugned order cannot stand the scrutiny of law. 8. 7. Mr. Ghosh, learned Addl. Public Prosecutor in his usual fairness submits that the impugned order cannot stand the scrutiny of law. 8. Situated thus, the impugned order dated 05.11.2003 and the order dated 20.08.1999 as passed in Bishalgarh P.S. Case No.18/1999 is interfered with and is set aside. The learned Chief Judicial Magistrate, West Tripura, Agartala, is directed to hear the petitioner herein on acceptance of the Final Report. The learned Chief Judicial Magistrate shall issue due notice to the informant, namely, Sri Arjun Majumder on fixing a day for hearing within a period of 15(fifteen) days from the date of receipt of this order. 9. With this direction and observation, the criminal revision petition is allowed and accordingly disposed of. Petition allowed