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2013 DIGILAW 2048 (BOM)

Kanta Baburao Kamble v. State of Maharashtra

2013-10-01

ABHAY M.THIPSAY

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JUDGMENT Rule. Rule made returnable forthwith. By consent of the parties, heard finally. 2. Since it was decided on the last date of hearing that the petition may be heard finally at the admission stage itself, record & proceedings in respect of the order passed by the Magistrate were called for. The record & proceedings have been received but, they are not in connection with the order passed by the Magistrate, which has been impugned by filing the present petition. The learned Additional Public Prosecutor has, however, made available to me the copies of the police papers in the matter. 3. A very short point is involved in the present petition. The petitioner had lodged a complaint against the respondent No.3 herein and some other persons, alleging commission of offences punishable under Sections 144, 148, 149, 158, 351, 379, 504, 506, 509 of I.P.C. as also, offences punishable under Sections 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The learned J.M.F.C., Aurangabad ordered investigation into the matter as contemplated under Section 156(3) of the Code of Criminal Procedure. After investigation, the police concluded that the complaint lodged by the petitioner was false. The police, therefore, filed 'B' summary report and also sought prosecution of the petitioner with respect to the offence punishable under Section 182 of I.P.C. 4. The petitioner is aggrieved by acceptance of the' B' summary report as done by the Magistrate and has approached this Court, invoking its Constitutional jurisdiction. 5. The only contention of the petitioner is that he ought to have been heard before acceptance of the 'B' summary report, and that since he was not heard in the matter by the Magistrate before passing the order accepting 'B' summary report, the order is liable to be set aside. The petitioner prays that the learned Judicial Magistrate be directed to grant an opportunity to the petitioner of being heard and then decide the question of accepting the 'B' summary report. 6. I heard Mr. Suryawanshi, learned Counsel for the petitioner, Mr. Ingole, learned Addl. P.P. for respondents No.1 and 2 and Mr. Godsay, learned Counsel for respondent No.3. 7. The learned Counsel for the respondent No.3 contended that the notice was served upon the petitioner after 'B' summary report had been filed but, the petitioner did not remain present before the Magistrate. Suryawanshi, learned Counsel for the petitioner, Mr. Ingole, learned Addl. P.P. for respondents No.1 and 2 and Mr. Godsay, learned Counsel for respondent No.3. 7. The learned Counsel for the respondent No.3 contended that the notice was served upon the petitioner after 'B' summary report had been filed but, the petitioner did not remain present before the Magistrate. It is submitted that since an opportunity of being heard was given to the petitioner, which was not availed of by the petitioner, the petitioner is not entitled to have such an opportunity once again. 8. Unfortunately, the record received from the Court of learned Magistrate does not throw any light on whether any notice was at all ordered to be issued against the petitioner after the investigating agency had filed 'B' summary report. In any case, in the view I am taking, it is not necessary to call for any clarification from the Court of the learned Magistrate in that regard. 9. A perusal of the impugned order nowhere refers to issuance of a notice to the petitioner. It also does not state that the petitioner remained absent after service of any such notice. At any rate, the impugned order makes it clear that the petitioner was not heard in the matter. 10. The police papers shown to me by the learned Addl. Public Prosecutor also do not indicate that any notice, calling upon the petitioner to show cause, if any, as to why 'B' summary report should not be accepted, was served upon the petitioner. Indeed, it appears that some cases had been registered against the petitioner and in connection with that, search for the petitioner was going on; but, he was not available to the investigating agency for quite some time. 11. The fact, therefore, remains that the order, accepting B summary report, came to be passed without hearing the petitioner. It appears that no notice was given to him; but, even assuming that such a notice was ordered to be issued, still, there is nothing to show that it was served upon the petitioner and at any rate, it is clear that the petitioner was not heard in the matter. 12. It appears that no notice was given to him; but, even assuming that such a notice was ordered to be issued, still, there is nothing to show that it was served upon the petitioner and at any rate, it is clear that the petitioner was not heard in the matter. 12. The respondent No.3, who is an accused, is really not entitled to oppose the present petition inasmuch as, it cannot lie in the mouth of the respondent No.3, in whose favour the investigating agency has concluded, that before accepting 'B' summary report, the petitioner should not be heard by the Magistrate. 13. Since the impugned order has been passed by violating important rights of the petitioner, the same needs to be interfered with, by exercising the Constitutional jurisdiction of this Court. 14. The petition succeeds. The impugned order is set aside. The learned Magistrate shall consider the question of granting 'B' summary afresh, after giving an opportunity of being heard, to the petitioner, and pass an appropriate order, in accordance with the law. The petitioner shall remain present before the Magistrate on or before 25th October, 2013. Petition is allowed in the aforesaid terms. Rule is made absolute, accordingly. Petition allowed.