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Madhya Pradesh High Court · body

2016 DIGILAW 853 (MP)

Devendra S/o Anandlal Kurmi v. State of M. P.

2016-09-22

SANJAY YADAV

body2016
ORDER : Sanjay Yadav, J. 1. Petition is directed against the communication dated 9.8.2016 which is in following terms: dk;kZy; ftyk iapk;r] lkxj eŒizŒ egkRek xka/kh jk"Vªh; xzkeh.k jkstxkj xkjaVh Ldhe&eŒizŒ dzekad@4210@,eŒthŒ ,uŒvkjŒbZŒthŒ,lŒ e/; izns'k 2016 fnukad%& 09-08-2016 izfr] eq[; dk;Zikyu vf/kdkjh tuin iapk;r jgyh ftyk lkxj fo"k;%& xzke iapk;r gjnqvk esa eujsxk ;kstukarxZr dk;ksZa dh tkWp ds laca/k esaA lanHkZ %& tkWap ny dk izfrosnu ,oa vkidk i= dzaŒ 962 fnukad 02-08-2016 fo"k;kUrxZr lanfHkZr i= ,oa izfrosnu }kjk xzke iapk;r gjnqvk esa eujsxk ;kstukUrxZr e`r O;fDr;ksa] isa'ku/kkfj;ksa] xzke ls ckgj x;s O;fDr;ksa] vkbZŒVhŒvkbZŒ v/;ujr ,oa vU; tkWac dkMZ/kkfj;ksa ftuds uke ls xyr jkf'k vkgj.k dh xbZ gS ds fy, lacaf/kr jkstxkj lgk;d] lfpo] iwoZ ,oa orZeku ljiap ,oa mi;a=h ls vkids }kjk izLrkfor jkf'k 136480@& :i;s ,oa ,sls leLr 'kkSpky; fuekZ.k dh jkf'k tks fd fuekZ.k fd;s x;s fcuk vkgfjr dh xbZ Fkh dh olwyh izdj.k rS;kj dj olwyh dh dk;Zokgh lqfuf'pr djsa] lkFk gh lacaf/kr jkstxkj lgk;d] lfpo] ljiap ds fo:) tkap izfrosnu ,oa vkids i= ds vk/kkj ij lacaf/kr iqfyl Fkkus esa ,QŒvkbZŒvkjŒ ntZ djkrs gq, iwoZ ljiap ds fo:) /kkjk 92 ,oa orZeku ljiap ds fo:) /kkjk 40 ,oa 92 dh dk;Zokgh vuqfoHkkxh; vf/kdkjh jktLo jgyh ds le{k izLrqr djuk lqfuf'pr djsa ,oa d`r dk;Zokgh ls bl dk;kZy; dks voxr djkosA eq[; dk;Zikyu vf/kdkjh ftyk iapk;r lkxjA As apparent it is from the communication that direction is to set in motion the machinery under law to lodge an FIR and to proceed under Section 40 and 92 of the Madhya Pradesh Panchayat Rajya Avam Gram Swaraj Adhiniyam, 1993. 2. Contention of the petitioner is that no opportunity of hearing has been granted to the petitioner before passing of said order is of no avail. 3. Reason being that no opportunity is required to be given to the person against whom an FIR is to be lodged. In this context, reference can be had of the decision in Union of India vs. W.N. Chadha, AIR 1993 SC 1082 wherein their Lordships were pleased to observe "88. 3. Reason being that no opportunity is required to be given to the person against whom an FIR is to be lodged. In this context, reference can be had of the decision in Union of India vs. W.N. Chadha, AIR 1993 SC 1082 wherein their Lordships were pleased to observe "88. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full fledged enquiry follows is a relevant and indeed a significant factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant. 89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram. partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but where the occasion for its attraction exists at all. 90. Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer. 94. Under Section 235(2), in a trial before a Court of Sessions and under Section 248(2) of the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect." 4. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect." 4. In respect of direction for initiation of proceedings under Section 40 and 92 of Adhiniyam 1993, since opportunity of hearing is implicit in these two statutory provisions which are yet to be initiated against the petitioner, the impugned communication cannot be interfered with as there is no statutory provision commended at that even before directing initiation of proceedings under Section 40 and 92 of the Adhiniyam 1993, an opportunity of hearing is contemplated. 5. In view whereof, since the petition is devoid of substance, it stands dismissed in limine.