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2014 DIGILAW 336 (UTT)

SUMAN v. STATE OF UTTARAKHAND

2014-09-01

U.C.DHYANI

body2014
JUDGMENT U.C. Dhyani, J.(Oral) By means of present application under Section 482 of Cr.P.C., the applicant seeks to quash the impugned judgment and order dated 17.09.2012, as also order dated 10.10.2012, passed by learned Sessions Judge, Haridwar. Whereas, by former order, the application under Section 5 of the Limitation Act was allowed; by the latter order, the revision was allowed and order dated 17.04.2007, passed by learned Chief Judicial Magistrate, Haridwar, was set aside. Learned Chief Judicial Magistrate had accepted the final report, vide order dated 17.04.2007. Background facts: 2. Brief Facts giving rise to the present petition are that the husband of the applicant died in suspicious circumstances. The applicant alleged that her husband was killed by the husband of respondent no. 3. [There is no FIR to this effect]. Husband of respondent no. 3 Avinash Kumar Sharma (since deceased) lodged an FIR on 18.03.2000, at police station, Jwalapur against the applicant, her mother and brothers, under Section 306 of IPC. The matter was investigated by the police on the basis of FIR lodged by the husband of respondent no. 3 and it was found that the case against the applicant and her family members was false. A final report was submitted on 28.05.2001. Learned Chief Judicial Magistrate issued notice to the informant Avinash Kumar Sharma, who filed a protest petition, and, on the basis of his protest petition, learned Chief Judicial Magistrate rejected the final report, vide order dated 03.11.2001, and directed the police station, Jwalapur, to further investigate into the matter. The matter was further investigated by the police and it was again found that the report filed by Avinash Kumar Sharma against the applicant and her family members was false. Consequently, a final report was submitted once again on 31.03.2006, which final report was accepted by learned Chief Judicial Magistrate, vide order dated 17.04.2007. Before accepting such final report dated 31.03.2006, vide order dated 17.04.2004, learned Chief Judicial Magistrate issued notice to the informant of the case, who had passed away by then. Death certificate of Avinash Kumar Sharma was placed before Chief Judicial Magistrate. Since Avinash Kumar Sharma had died and none of his family members filed any objections on the final report, therefore, the same was accepted by the Magistrate concerned. 3. A criminal revision was preferred by respondent no. 3, widow of late Avinash Kumar Sharma, against the acceptance of final report. Since Avinash Kumar Sharma had died and none of his family members filed any objections on the final report, therefore, the same was accepted by the Magistrate concerned. 3. A criminal revision was preferred by respondent no. 3, widow of late Avinash Kumar Sharma, against the acceptance of final report. The criminal revision was decided on 10.10.2012 by learned Sessions Judge, Haridwar. Criminal revision was allowed, the order dated 17.04.2007, passed by learned Chief Judicial Magistrate was set aside and the matter was remitted back to the court below to pass a fresh order, according to law, after issuing notice to the family members of the deceased informant. Aggrieved against such order dated 10.10.2012, present petition was filed by the wife of the victim. Thus the litigation is between two widows. One is the widow of the informant, who is opposing final report, and the other is the widow of the victim, the suspect, who is in favour of the ‘closure-report’. Short question: 4. The short question that arises for consideration in this application under Section 482 of Cr.P.C. is whether in a case where FIR is lodged and after completion of investigation, initiated on the basis of FIR, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceedings 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 or not? To whom the Magistrate should issue notice? 5. To whom the Magistrate should issue notice? 5. 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 4 general importance and, therefore, when one such question arose before the Hon’ble Apex Court in the landmark decision of Bhagwat Singh vs Commissioner of Police and another, AIR 1985 SC 1285 , Hon’ble Apex Court observed as below: “Sub-Section (2)(i) of Section 173 of Code of Criminal Procedure, 1973 provides that as soon as investigation is completed, the officer In-charge of a police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government setting out various particulars including whether, in the opinion of the officer, an offence appears to have been committed and if so, by whom. Sub-section (2)(ii) of Section 173 states that the officer shall also communicate, in such manner, as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given……..” Whether Magistrate is bound to issue notice? 6. “The question we are examining here is whether the magistrate is bound to issue notice to the first informant or to the injured or to any relative of the deceased when he is considering the police report submitted under section 173 sub-section (2).” Hon’ble Apex Court thereafter proceeded to observe as under: “It will be seen from the provisions to which we have referred in the preceding paragraph that when an informant lodges the First Information Report with the officer-in- charge of a police station he does not fade away with the lodging of the First Information Report. He is very much concerned with what action is initiated by the officer in charge of the police station on the basis of the First Information Report lodged by him. No sooner he lodges the First Information Report, a copy of it has to be supplied to him, free of cost, under sub-section (2) of Section 154……. He is very much concerned with what action is initiated by the officer in charge of the police station on the basis of the First Information Report lodged by him. No sooner he lodges the First Information Report, a copy of it has to be supplied to him, free of cost, under sub-section (2) of Section 154……. Then again, the officer-in-charge of a police station is obligated 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)(i) has therefore to be supplied by him to the informant…….. Obviously, the reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know what is the result of the investigation initiated on the basis of the First Information Report. ……….hence the law requires that the action taken by the officer-in-charge of a police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under sub-section (2)(i) of Section 173 should also be supplied to him.” (Emphasis supplied) What a Magistrate is supposed to do?: 7. “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 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 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 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……..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 connot 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) Whether the injured person or a relative of the deceased is entitled to notice? 8. “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 connot 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 that 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.” (Emphasis supplied) 9. Learned revision court, in the instant case, directed learned Chief Judicial Magistrate that the notice be given to the family members of the informant. Such direction, it appears, is contrary to the scheme of law propounded by the Hon’ble Apex Court in Bhagwat Singh’s case (supra), for, the Hon’ble Supreme Court has observed, in no unequivocal terms, that 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. 10. The Chief Judicial Magistrate, in the instant case, although issued notice to the informant, but since such informant died, therefore, he closed the matter. Such an order passed by learned Chief Judicial Magistrate is contrary to law. 10. The Chief Judicial Magistrate, in the instant case, although issued notice to the informant, but since such informant died, therefore, he closed the matter. Such an order passed by learned Chief Judicial Magistrate is contrary to law. He should have assigned reasons and ought to have passed a speaking order as to why he was inclined to accept the final report? Merely a statement that since the informant has died and none has appeared (on his behalf) to oppose the final report, was no ground for acceptance of final report. In other words, learned Chief Judicial Magistrate has passed a bald order, non-speaking order, while accepting the final report. Reasons ought to have been assigned by him as to why he was inclined to accept the final report, keeping in mind the hypothetical situation that the informant would have objected to such ‘closure-report’. Whenever in quandary, it is always preferable for a judicial or quasi judicial authority to pass a reasoned speaking order, than to keep mum and pass a bald order, unless and until the law specifically required not to pass a speaking order, which situation would never arise in the realm of reasonableness, which is antithesis of arbitrariness. Such reasons were conspicuous by their absence in the order dated 17.04.2007. 11. Learned Sessions Judge, in his revisional jurisdiction, although rightly allowed the criminal revision and remitted back the matter to the learned Magistrate to pass a fresh order according to law, but in the considered opinion of this Court, revisional court ought not to have directed learned Magistrate to issue notice to the family members of the informant (since deceased) and ought to have left the same to the discretion of learned Chief Judicial Magistrate, as is observed by the Hon’ble Apex Court in the decision of Bhagwat Singh (supra). Whether ‘victim’ is entitled to notice? 12. There is yet another aspect of the matter. A question cropped up, during the arguments of this case, as to whether the Magistrate was bound to issue notice to the guardian or legal heir of the ‘victim’ or not? The word ‘victim’ was introduced in Cr.P.C. by Act no. Whether ‘victim’ is entitled to notice? 12. There is yet another aspect of the matter. A question cropped up, during the arguments of this case, as to whether the Magistrate was bound to issue notice to the guardian or legal heir of the ‘victim’ or not? The word ‘victim’ was introduced in Cr.P.C. by Act no. 5 of 2009, w.e.f. 31.12.2009, to read as follows: “2(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.” 13. Co-incidentally, the word ‘victim’ also finds place in Section 372 Cr.P.C. in the context of filing of criminal appeals, as follows: “Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” The word “victim” in Section 2(wa), thus, appears to have been used in reference to Section 372 Cr.P.C. and not in respect of final report under Section 173 Cr.P.C. The word ‘relative’ encompasses within its orbit to mean ‘a person connected by blood or marriage’, and may include his or her guardian or legal heir. 14. This Court, therefore, is of the opinion that a Magistrate, while disposing of such final report, is only bound by the observations made by Hon’ble Apex Court, which have been referred to by this Court in paragraph 8 of this judgment, and not beyond that. 15. This Court is inclined to agree with the conclusion arrived at by learned Sessions Judge, although for different reasons, as set out here-in-above, in the body of the judgment. The judgment and order under challenge (dated 10.10.2012) stands modified to the extent of eclipsing the direction given to learned Chief Judicial Magistrate to issue notice to the family members of the informant (since deceased). Instead, the trial court may, in exercise of its discretion, if he so thinks fit, give such notice to any particular relative or relatives of the informant (since deceased). Instead, the trial court may, in exercise of its discretion, if he so thinks fit, give such notice to any particular relative or relatives of the informant (since deceased). It is made clear that no interference is called for in former order dated 17.09.2012, passed by learned Sessions Judge, whereby the application under Section 5 of the Limitation Act was allowed, in as much as mere technicality should not be allowed to come in the way in deciding some important matter on merits. It is only after allowing application under Section 5 of the Limitation Act that the revision court proceeded to hear criminal revision no. 392 of 2012. 16. Present application under Section 482 of Cr.P.C., accordingly, stands disposed of.