Bijaya Mishra W/o A. Uday Bhashkar v. State of Jharkhand
2019-09-13
SHREE CHANDRASHEKHAR
body2019
DigiLaw.ai
JUDGMENT : 1. This criminal revision petition has been filed by the informant of a First Information Report vide Kotwali P.S. Case No. 679 of 2014 which was registered on 24.07.2014 against O.P. No. 2 for the offences punishable under section 354(A)/509 IPC. 2. The petitioner has challenged the legality of the order dated 29.11.2014 passed by the learned Chief Judicial Magistrate, Ranchi, who has by the said order accepted the Final Form submitted in the said case. 3. On 12.07.2019, the following order was passed by this Court: “I.A. No. 6336 of 2016 Mr. Sanjoy Kumar Piprawall, the learned counsel appears on behalf of accused-O.P. No. 2. This interlocutory application has been filed seeking condonation of delay of 439 days in filing this criminal revision petition. The learned counsel for the petitioner submits that the order impugned has been passed in absence of the petitioner, without any notice to her and, therefore, delay of 439 days has occurred in filing this criminal revision petition. It is stated that the petitioner had notice of order dated 29.11.2014 only when she received summons in Complaint Case No. 1016 of 2015. The learned counsel for the O.P. No. 2 submits that the plea taken by the petitioner that the order dated 29.11.2014 is patently illegal on perusal of the materials collected during the investigation including the charge-sheet becomes untenable. On the face of this submission, I am of the opinion that this criminal revision petition requires hearing. Accordingly, delay of 439 days in filing this criminal revision petition is condoned. I.A. No. 6336 of 2016 is allowed. Cr. Revision No. 583 of 2016 A conjoint reading of the orders dated 17.10.2014 and 29.11.2014 would reveal that the learned judge has proceeded in the matter irregularly. The petitioner has produced certified copies of the proceeding in G.R. No. 4223 of 2014. The order dated 17.10.2014 would reveal that no date of hearing of G.R. No. 4223 of 2014 was fixed. Still, the matter was taken up on 29.11.2014. The lower court's records have been received. Post the matter on 16.08.2019 under the heading “Final Disposal.” In the meantime, O.P. No. 2 may file his response to this criminal revision petition.
The order dated 17.10.2014 would reveal that no date of hearing of G.R. No. 4223 of 2014 was fixed. Still, the matter was taken up on 29.11.2014. The lower court's records have been received. Post the matter on 16.08.2019 under the heading “Final Disposal.” In the meantime, O.P. No. 2 may file his response to this criminal revision petition. I.A. No. 4527 of 2019 This interlocutory application has been filed seeking early hearing of this criminal revision petition and since with the consent of the parties a date of the final hearing has been fixed, this interlocutory application has been rendered infructuous. Disposed of, as such.” 4. A counter-affidavit has been filed by O.P. No. 2. 5. The contention raised on behalf of the petitioner is that a right, a statutory right, in the petitioner to raise objection to the Final Form submitted by the police has been taken away by the impugned order dated 29.11.2014 without recording a finding that notice was validly served upon her. 6. On 24.07.2014, on the basis of a written report submitted by the petitioner Kotwali P.S Case No. 679 of 2014 was registered against O.P. No. 2 under section 354(A)/509 IPC. A copy of the First Information Report was received in the Court which was seen by the Chief Judicial Magistrate, Ranchi, who has ordered on 24.07.2014 that it shall be registered. Accordingly, G.R. No. 4223 of 2014 was instituted. On 08.08.2014, O.P. No. 2 was granted bail. The order dated 17.10.2014 would indicate that a Final Form bearing no. 886/2014 dated 16.10.2014 was submitted in the court. The order dated 17.10.2014 reads as under: “Received final report no. 88 dated 16.10.2014. Perused the same. The I.O. has submitted Final Form as reported fact true but got no clue for the offence under section 354(A)/509 of I.P.C. Let notice be issued to the informant as to what she has to say about the Final Form submitted by the I.O. Put up on.........for awaiting S.R.” 7. On 29.11.2014, the matter was taken up for hearing and the following order was passed by the Court: “Perused the case record. From perusal of the case record it appears that after investigation police has submitted Final Form reporting the allegation are false. Thereafter, notice was issued to the informant but none appeared. It goes to show that the informant has got no grievance.
From perusal of the case record it appears that after investigation police has submitted Final Form reporting the allegation are false. Thereafter, notice was issued to the informant but none appeared. It goes to show that the informant has got no grievance. Hence, Final Form submitted by the police is accepted. Deposit the record in record room.” 8. Mr. Sanjoy Piprawall, the learned counsel for O.P. No. 2, to support the impugned order dated 29.11.2014, has raised two fold contentions; (i) the petitioner had notice of submission of Final Form as well as the order dated 29.11.2014 and (ii) whether notice was served upon the petitioner or not that can be ascertained from the dispatch register. 9. On both counts, I find no substance in the stand taken by O.P. No. 2 to support the impugned order dated 29.11.2014. 10. In the first place, in the Final Form dated 16.10.2014 it is not written that a copy of the Final Form has been sent to the petitioner; there is no such endorsement in the Final Form, however, it is recorded there that information is being given to the informant. This apart, the informant is entitled to see the statement of the witnesses recorded during the investigation, that is, under section 161 Cr.P.C. At this stage, the informant has two options; to submit that sufficient materials were collected during the investigation for taking cognizance of the offences and/or to file a protest-cum-complaint petition. In absence of the material documents including a copy of the Final Form, the informant cannot avail of the remedy available to her. The contention that the petitioner had notice of the order dated 17.10.2014 is also bereft of substance. Whether the notice has been validly served or not, before passing order dated 29.11.2014, the learned Chief Judicial Magistrate was required to satisfy himself first on valid service of notice. The learned counsel for O.P. No. 2 has submitted that this fact can be verified from the dispatch register. Though, the dispatch register is not the conclusive proof on the service of notice, this much has also not been done by the learned Judge. From a glance at the order dated 29.11.2014, it does not appear that the learned Judge has followed the procedure as mandated in law.
Though, the dispatch register is not the conclusive proof on the service of notice, this much has also not been done by the learned Judge. From a glance at the order dated 29.11.2014, it does not appear that the learned Judge has followed the procedure as mandated in law. A right in an informant to object to a report submitted by the police under section 169 of the Code of Criminal Procedure or under section 173 of the Code of Criminal Procedure is a valuable right and, therefore, before accepting the Final Form the learned Judge was required to record his satisfaction that notice pursuant to the order dated 17.10.2014 was validly served upon the informant. 11. There is another aspect of the matter which needs to be addressed to. The order dated 17.10.2014 does not disclose the next date of hearing. Under Order V CPC, a notice, if any, issued to the petitioner was required to indicate the date, time and place where the petitioner was required to appear and put-forth her case. As noticed above, no date was indicated in the order dated 17.10.2014; there is blank space, and while so, if at all a notice was issued to the petitioner it was invalid and it can be safely held that the petitioner had no valid notice of the next date of the positing of G.R. No. 4223 of 2014. And, the contents of the order dated 17.10.2014, least to say, leaves one exasperated. 12. In the above facts, finding serious infirmity in the impugned order dated 29.11.2014 passed in G.R. No. 4223 of 2014, it is set-aside. The matter is remitted back to the Chief Judicial Magistrate, Ranchi, who shall after affording sufficient opportunity to the petitioner, who is the informant in Kotwali P.S. Case No. 679 of 2014, pass a reasoned order, in accordance with law. 13. Criminal Revision No. 583 of 2016 stands allowed, in the aforesaid terms. 14. Let the lower-court records be sent to the court concerned forthwith.