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2014 DIGILAW 1218 (PAT)

Vikash Kumar v. State of Bihar

2014-12-10

ASHUTOSH KUMAR

body2014
ORDER Heard learned counsel for the parties. 2. The petitioner, who is the informant of Jehanabad P.S. Case No.195 of 2010, has laid grievance against the order dated 16.03.2012, whereby the learned Chief Judicial Magistrate has taken cognizance against one Satya Narain Prasad for the offences under Section 302 and other Sections of the Indian Penal Code and has dropped the proceedings as against the opposite party nos.2 to 6, as they were not charge-sheeted by the police. The aforesaid order is sought to be challenged on the ground that if the learned Magistrate decided to accept the report of the police with respect to dropping of the proceedings as against the opposite party nos. 2 to 6, it was incumbent upon him, mandatorily, to notice the informant i.e. the petitioner to be heard on the point of cognizance. 3. After investigation of Jehanabad P.S. Case No.195 of 2010, charge-sheet was submitted against some of the accused persons, who were sent-up for trial and those persons are facing trial in Sessions Trial No.92 of 2011. After passage of some time, a supplementary charge-sheet was submitted vide Charge-sheet No.50 of 2012, wherein only one of the accused, namely, Satya Narain Prasad was sent-up for trial, whereas opposite party nos. 2 to 6 were not sent-up for trial. The learned Chief Judicial Magistrate, vide order dated 16.03.2012 (under challenge), accepted the report of the police in totality i.e. took cognizance against Satya Narain Prasad and dropped the proceedings against opposite party nos. 2 to 6. Another application came to be filed at the instance of the petitioner asking him to be heard by the Court on point of cognizance. The aforesaid prayer of the petitioner was rejected vide order dated 09.04.2012 on the ground that after the Court takes cognizance, the Court of learned Chief Judicial Magistrate becomes functus officio. 4. Learned senior counsel for the petitioner, with reference to the decision of Bhagwant Singh Vs. Commissioner of Police and Another, ( AIR 1985 SC 1285 ), argued that if the learned Magistrate was not inclined to take cognizance of the offence and issue process, the informant had to be given an opportunity of being heard so that he could have made his submissions for the purposes of persuading the learned Magistrate to take cognizance of the offence and issue processes. He further submitted that in case where the Magistrate, before whom a report is forwarded under Section 173 of the Code of Criminal Procedure, decides not to take cognizance of the offence and to drop the proceedings, the Magistrate is under an obligation to issue notice to the informant for providing him an opportunity of being heard. 5. The aforesaid ratio has been followed in the case of Sanjay Bansal and Another Vs. Jawajarla Vats, {2008 Cri. L.J. 428(SC)}. The Hon’ble Apex Court, in the aforementioned decision, held that if a Magistrate decides not to take cognizance and to drop the proceedings and takes a view that there is no sufficient ground for proceeding against some of the persons named in the First Information Report, notice to the informant is mandatory. The Apex Court made it very clear that though there is no provision in the Code for issuance of such a notice, but the same is necessary so as to let the informant know as to why the report lodged by him is not being logically concluded. 6. The learned Advocates appearing on behalf of opposite parties, however, state that the informant, even though, has not been noticed, but he was aware of the fact that opposite party nos. 2 to 6 were not sent-up by the police for facing trial. 7. Mr. Arun, learned counsel for the opposite party no.5, further submits that a protest petition was already available on record and in case the informant was not satisfied with the result of the investigation of the police case, he could have proceeded with or moved his protest petition. He has also submitted that in the trial of other accused persons, if any material could have come against opposite party nos. 2 to 6, the informant would have had ample opportunities of seeking their summons to face trial under the provisions of Section 319 of the Code of Criminal Procedure. 8. The position of law is very clear. If the learned Magistrate decides to drop the proceeding as against some of the accused persons named by the informant, notice to the informant is a must. 9. On this score alone, the order dated 16.03.2012 passed by the learned Chief Judicial Magistrate, Jehanabad in connection with Jehanabad P.S. Case No.195 of 2010 is being set aside. 10. If the learned Magistrate decides to drop the proceeding as against some of the accused persons named by the informant, notice to the informant is a must. 9. On this score alone, the order dated 16.03.2012 passed by the learned Chief Judicial Magistrate, Jehanabad in connection with Jehanabad P.S. Case No.195 of 2010 is being set aside. 10. The matter is remitted back to the Court of learned Chief Judicial Magistrate to write out a fresh order in accordance with law after noticing the informant-petitioner. 11. The application is allowed. ?