Bhagwat Singh Vs. Commissioner of
Police & ANR [1985] INSC 103 (25 April 1985)
BHAGWATI, P.N. BHAGWATI, P.N.
SEN, AMARENDRA NATH (J) MADON, D.P.
CITATION: 1985 AIR 1285 1985 SCR (3) 942 1985
SCC (2) 537 1985 SCALE (1)1194
CITATOR INFO: RF 1988 SC1729 (5)
ACT:
Criminal Procedure Code 1973 ss. 154 and
173-First Information Report -The informant is entitled to hearing, when on the
basis of police report Magistrate prefers to drop the proceedings instead of
taking cognizance of offence- Person injured or relative of the person who died
in the incident complained of has no such right of hearing except a standing to
appear before Magistrate the Magistrate of his own discretion can issue notice
to them for hearing.
Administrative Law-Natural justice-Difficulty
in compliance with-Can not be a ground to deny the opportunity of hearing.
HEADNOTE:
In a criminal case where First Information
Report is lodged and the police submits a report after completion of
investigation initiated on the basis of such FIR that no offence appears to
have been committed, on the question 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, the
Court, ^
HELD: I . 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
943 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 proceedings or takes the view that
though there is 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, subsection (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.
The Court is 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 proceedings 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 of being heard at the time of consideration of the report, and 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.[947G-H; 948, 949A-C]
2. This Court 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 ii 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.
[949E-G] Observation:
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.[949H. 950A] 944
ORIGINAL JURISDICTION: Contempt Petition No.
4998 of 1983 IN CRIMINAL WRIT PETITION NO. 6607 Of 1981 Under Article 32 of the
Constitution of India Kapil Sibal, A.C. and Ms. Madhu Singh for the petitioner
S.C. Maheshwari, G.D. Gupta and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by
BHAGWATI, J. The short question that arises for consideration in this writ
petition is whether in a case where First Information Report is lodged and
after completion of investigation initiated on the basis of the First
Information Report, the police submits a report that no offence appears to have
been committed, the Magistrate can accept the report and drop the proceeding
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. It is not
necessary to state the facts giving rise to this writ petition, because so far
as this writ petition is concerned, we have already directed by our order dated
28th November, 1983 that before any final order is passed on the report of the
Central Bureau of 1:
Investigation by the Chief Metropolitan
Magistrate, the petitioner who is the father of the unfortunate Gurinder Kaur
should be heard. Gurinder Kaur died as a result of burns received by her and
allegedly she was burnt by her husband and his parents on account of failure to
satisfy their demand for dowry. The circumstances in which Gurinder Kaur met
with her unnatural death were investigated by the Central Bureau of
Investigation and a report was filed by the Central Bureau of Investigation in
the court of the Chief Metropolitan Magistrate on 11th August, 1982 stating
that in their opinion in respect of the unnatural death of Gurinder Kaur no
offence appeared to have been committed.
The petitioner was however not aware that
such a report had been submitted by the Central Bureau of Investigation and he,
therefore, brought an application for initiating proceedings for contempt against
the Central Bureau of Investigation on the ground that the Central Bureau of
Investigation had not completed their investigation and submitted their report
within the period stipulated by the Court by its earlier order dated 6th May,
1983. lt was in reply to this application for initiation of contempt
proceedings that 945 the Central Bureau of Investigation intimated that they
had already filed their report in the Court of the Chief Metropolitan
Magistrate on 11th August, 1982 and the report was pending consideration by the
Chief Metropolitan Magistrate. When this fact was brought to our notice we
immediately passed an order dated 28th November, 1983 directing that the
petitione ! should be heard before any final order was passed on the report.
There was no objection on the part of the respondents to the making of this
order, but since the question 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 general importance which is likely to arise frequently
in criminal proceedings, we thought that it would be desirable to finally settle
this question so as to afford guidance to the courts of magistrates all over
the country and we accordingly proceeded to hear the arguments on both sides in
regard to this question.
It is necessary to refer to a few provisions
of the Code of Criminal procedure, 1973 in order to arrive at a proper
determination of this question. Chapter XII of the Code of Criminal Procedure,
1973 deals with information to the police and their powers to investigate.
Sub-section (1) of Section 154 provides that every information relating to the
commission of a congizable offence, if given orally to an officer-in-charge of
a police station, shall be reduced in writing by him or under his direction and
be read over to the informant and every such information, whether given in
writing or reduced to writing, shall be signed by the person giving it and
sub-section (2) of that section requires that a copy of P such information
shall be given forthwith, free of cost, to the informant. Section 156
sub-section (1) vests in the officer-in-charge of a police station the power to
investigate any cognizable case without the order of a magistrate and
sub-section (3) of that section authorises the magistrate empowered under
Section 190 to order an investigation as mentioned in sub-section (1) of that
section. Section 157 sub-section (1) lays down that if, from information
received or otherwise an officer in charge of a police station has reason to
suspect the commission of an offence which he is empowered under Section 156 to
investigate, he shall forthwith send a report of the same to a Magistrate
empowered to take cognizance of such offence 946 upon a police report and shall
proceed to the spot to investigate the facts and circumstances of the case and,
if necessary, to take measures for the discovery and arrest of the offender.
But there are 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. If, two provisos to this
sub-section. Proviso (b) enacts that if it appears to the officer-in-charge of
a police station that there is no sufficient ground for entering on an
investigation, he shall not investigate the case, but in such a case, sub-
section (2) of Section 157 requires that the officer shall forthwith notify to
the informant the fact that he will not investigate the case or cause it to be
investigated. What the officer in charge of a police station is required to do
on completion of the investigation is set out in section 173. Sub-section
(2)(i) of Section 173 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, as 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. Section
190 sub-section (1) then proceeds to enact that any' magistrate of the first
class and any magistrate of the second class specially empowered in this behalf
under sub-section (2) may take cognizance of any offence: (a) upon receiving a
complaint of facts which constitute such offence or (b) upon a police report of
such facts or (c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been committed. We
are concerned in this case only with clause (b), because 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).
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 947 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. On
sooner he lodges the First Information Report, a copy of it has to be supplied
him, free of cost, under sub- section (2) of Section 154. if. notwithstanding
the First Information Report, the officer-in-charge of a police station decides
not to investigate the case on the view that there is no sufficient ground for
entering on an investigation, he is required under sub-section (2) of Section
157 to notify to the informant the fact that he is not going to investigate the
case because it to be investigated. 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. The question immediately arises as to why action taken
by the officer in charge of a police station on the First Information Report is
required to be communicated and the report forwarded to the Magistrate under
sub-section (2)(i) of Section 173 required to be supplied 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. The informant having taken the initiative in lodging the
First Information Report with a view to initiating investigation by the police
for the purpose of ascertaining whether any offence has been committed and, if
so, by whom, is vitally interested in the result of the investigation and 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.
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 948 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 apppears 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 949 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 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.
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
lo 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 950 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 of or relatives 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.
This is our view in regard to the question
which has arisen for consideration before us. Since the question is one of
general importance, we would direct that copies of this judgment shall be sent
to the High Courts in all the States so that the High Courts may in their turn
circulate this judgment amongst the Magistrates within their respective
jurisdictions.
M.L.A.
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