Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 110 (HP)

Arun Dev Bisht v. State of H. P.

2019-01-09

VIVEK SINGH THAKUR

body2019
JUDGMENT : Vivek Singh Thakur, J. Present petition has been filed, seeking permission to file objection to the closure report, filed by the State Vigilance, in case F.I.R. No.9 of 2013, dated 17th October, 2013, registered in Police Station State Vigilance & Anti Corruption Bureaou, South Range, Shimla, H.P., on the ground that the F.I.R. was lodged by Mr.Kushal Sharma, the then Superintendent of Police, Vigilance, on the information supplied by the petitioner and as per Section 173 (2)(ii) Cr.P.C., the Investigating Officer has also to communicate about the action taken by him on the F.I.R. to the person, if any, by whom the information relating to the commission of offence was first given. 2. In present petition, the petitioner has submitted that on filing of closure report, a notice was issued by learned Special Judge (Forest), Shimla, H.P., to the complainant Kushal Sharma (the then S.P. Vigilance), for 30th November, 2018 and on that day, after recording his statement, the closure report was listed for consideration on 20th December, 2018. Present petition has been filed on 11th December, 2018 i.e. before the date fixed for consideration and closure report, by the Special Judge, Forest, Shimla, H.P. 3. The provisions of Section 173 (2) (ii) Cr.P.C., enjoins duty upon the officer, to communicate the person, by whome the information relating to the commission of offence was first given so as enabling such informant, if intends to do so, may join the proceedings of closure report and file objection, if any, before the concerned Magistrate/Judge. 4. In present case, as evident from the petition filed by the petitioner, he was very much aware about filing of closure report and also about the dates, for which it was listed for recording statement/objection of the complainant as well as consideration thereof. But the petitioner, instead of preferring his objections by joining proceedings before the Special Judge (Forest), Shimla, has opted for filing of present petition, seeking permission to file objections to the closure report filed by the State Vigilance. 5. It is not a case that closure proceedings have been completed or learned Special Judge has declined to hear, the petitioner who claims himself to be first informant. But here is a petitioner who, despite having knowledge of pendency and dates of hearing of closure proceedings, has not preferred to approach the Special Judge. 5. It is not a case that closure proceedings have been completed or learned Special Judge has declined to hear, the petitioner who claims himself to be first informant. But here is a petitioner who, despite having knowledge of pendency and dates of hearing of closure proceedings, has not preferred to approach the Special Judge. In fact, instead of filing present petition, petitioner should have approached the concerned Court, where the closure report filed by the Investigating Agency is under consideration and should have preferred his objection against closure, if any. 6. For filing objection before the Magistrate/Special Judge by informant, no permission of this Court is required, even if the Magistrate or Special Judge has not issued notice to him. Therefore, petitioner, if advised so and intends to prefer objection, may approach learned Special Judge. 7. The point in issue is no longer resintegra, as the apex Court in Bhagwant Singh Versus Commissioner of Police and Another (1985) 2 Supreme Court Cases 537, has held as under:5. “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 cannot 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 the 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 invaliding effect on the order which may be made by the Magistrate on a consideration of the report”. 8. In view of above discussion, present petition, being unwarranted, is not maintainable and is dismissed accordingly. Record of the trial Court be sent back forthwith for listing the closure proceeding before learned Special Judge (F) Shimla on 18th January, 2019, whereafter he shall proceed further in accordance with Law.