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2014 DIGILAW 1463 (RAJ)

Kaluwa v. State of Rajasthan

2014-08-12

KANWALJIT SINGH AHLUWALIA

body2014
Hon'ble AHLUWALIA, J.—Lawyers are stated to be on indefinite strike. 2. Present petition has been filed by the complainant. 3. Petitioner has lodged FIR No.53/2011 at Police Station Hindaun City, Distt. Karauli for offences under Section 420, 467, 468, 323, 341 IPC and Section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against respondent No.2 to 7. 4. Investigating agency after thorough investigation, submitted a charge sheet against respondent No.2 to 6 for offences under Section 341, 323 and Section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, the Investigating agency exonerated the respondent No.7 of the offence. 5. In the present petition, a grievance has been made that Investigating agency has not acted fairly, therefore, Investigating agency be directed to add respondent No.7 as accused so that he is prosecuted. 6. In Bhagwant Singh vs. Commissioner of Police & Anr., AIR 1985 SC 1285 , Hon'ble Apex Court has observed as under:- “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 sub-section (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 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.” (emphasis supplied, wherever necessary) 7. Thus, where charge-sheet is submitted against one set of accused, absolving other set of accused, Magistrate before taking cognizance has to issue notice to the complainant in order to provide him an opportunity to be heard at the time of consideration of the report submitted under Section 173 Cr.P.C. Upon notice so issued, complainant can file protest petition. It also goes without saying that petitioner has a remedy to file an application under Section 190 Cr.P.C. praying before the concerned Court that cognizance of the offences be taken against accused who has not been sent for trial by the Investigating Agency. Furthermore, complainant at appropriate time can invoke Section 319 Cr.P.C. for summoning accused not sent for trial as an additional accused. 8. In view of the observations made by Hon'ble Apex Court in Bhagwant Singh case cited (supra) and further observations made by this Court in this order, this Court is of the view that no directions as prayed for are called for and petitioner if so advised, may take recourse to lawful remedy available to him in the Court below. 9. In view of the above, present petition stands disposed of. 10. Consequent upon disposal of the main petition, the stay application filed therewith stands also disposed of.