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2014 DIGILAW 1231 (JHR)

Dhiraj Sinha v. State of Jharkhand

2014-12-10

P.P.BHATT

body2014
ORDER : The present application is filed under Section 482 of the Code of Criminal Procedure, 1973, for quashing of the Order dated 28.7.2013, passed by the learned Judicial Magistrate, Ranchi, in connection with G.R. No.2758 of 2013, arising out of Bariyatu (G) P.S. Case No.170 of 2013, whereby the learned court below has accepted the Final Report without service of notice and without giving opportunity of hearing to the petitioner at the time of consideration of the report and has straight-way accepted the report. 2. Learned counsel for the petitioner, by referring the order dated 30.5.2013, 19.6.2013 and 28.7.2013, pointed out that the learned court below vide its order dated 19.6.2013, received the Final Form along with the case diary, and thereafter, passed the order for issuance of notice to the informant of the case and the matter was kept on 26.7.2013 for awaiting the service report, but, thereafter, no further order was passed on 26.7.2013 and straight way order was passed without awaiting for the service report. According to the learned counsel for the petitioner, the requirement under the General Law has not been followed in the instant case. It is also submitted that the learned court below has accepted the Final Form without going through the service report of the notice to the petitioner-informant for appearing in a serious offence punishable under Section 504, 506 and 379 of the I.P.C. Learned counsel for the petitioner has also submitted that the Officer-in-charge of the Police Station who conducted the investigation was obliged under Sub Section 2(ii) of Section 173 to communicate the action taken by him to the informant and the report forwarded by him to the Magistrate under Sub Section 2(ii) of Section 173, but no such communication was ever made to the informant. According to the learned counsel for the petitioner, the Final Form was accepted by the learned court below without giving any opportunity of hearing to the petitioner. In this context, the learned counsel for the petitioner has referred to and relied upon the decisions given in case of Bhagwant Singh Vrs Commissioner of Police, reported in, (1985) 2 Supreme Court Cases 537 and another decision given in the case of Minu Kumari Vrs State of Bihar, reported in, 2006 (3) EastCrC 38 (SC) : (2006) 4 Supreme Court Cases 359. 3. 3. Learned A.P.P appearing on behalf of the State has tried to justify the order passed by the learned court below and has submitted that there is no irregularity committed by the learned court below while passing the impugned order, and therefore, the present petition may be dismissed. 4. Having regard to the above submissions, and on perusal of the petition as well as the order annexed to the petition, it transpires that the learned court below without awaiting for the service report has accepted the Final Form meaning thereby, the required opportunity of being heard was not given to the present petitioner-informant. It is the duty of the concerned Investigating Officer to conduct investigation and communicate the action taken by him to the informant under Sub Section 2(ii) of Section 173 and to forward the report to the learned court as well as to the informant, but no such communication was ever made to the petitioner. Thus, it appears that the petitioner -informant was not given any opportunity of being heard before acceptance of Final Form. In this context, Paragraph No.4 and Paragraph Nos.12 to 15 of the above decision cited by the learned counsel for the petitioner, in case of Bhagwant Singh and Minu Kumari (supra), respectively, are being reproduced here-in-below : Paragraph No.4 (1985) 2 SCC 537 , reads as under: “4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 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 subsection (3) of S. 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 subsection (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 cognizane 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 sub-sec. (2) of S. 154, sub-sec. (2) of S. 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 S. 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 subsec. (2)(i) of S. 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 S. 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.” Paragraph Nos.12 to 15 (2006) 4 SCC 359 , reads as under : “12. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. This Court in Bhagwant Singh v. Commnr. This Court in Bhagwant Singh v. Commnr. of Police ( 1985 (2) SCC 537 ) held that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard. 13. We may add here that the expressions ‘charge-sheet’ or ‘final report’ are not used in the Code, but it is understood in Police Manuals of several States containing the Rules and the Regulations to be a report by the police filed under Section 170 of the Code, described as a “charge-sheet”. In case of reports sent under Section 169, i.e., where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously i.e., referred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 of the Code, though there is nothing in Section 173 specifically providing for such a notice. 14. As decided by this Court in Bhagwant Singh’s case (supra), the Magistrate has to give the notice to the informant and provide an opportunity to be heard at the time of consideration of the report. It was noted as follows :- “....the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report....” 15. Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh’s case (supra) the right is conferred on the informant and none else.” 5. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh’s case (supra) the right is conferred on the informant and none else.” 5. In view of the facts and circumstances discussed hereinabove, as also in view of the settled legal proposition set out in the aforesaid two decisions, this Court is of the view that the impugned order dated 28.7.2013, passed by the leaned Judicial Magistrate, Ranchi, in connection with G.R. No.2758 of 2013, arising out of Bariyatu (G) P.S. Case No.170 of 2013 is require to be set aside. Accordingly, the same is, hereby, ordered to be set aside and the matter is, hereby, remitted to the learned court below, for its de novo consideration, after following due process of law.