Sanjay
Bansal and Anr Vs. Jawaharlal Vats and Ors [2007] Insc 1093 (22 October 2007)
Dr.
Arijit Pasayat & Lokeshwar Singh Panta
(Arising
out of SLP (Crl.) No. 2364 of 2007) Dr. ARIJIT PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the order passed by a Division Bench of the Allahabad
High Court in Criminal Misc.
Writ
Petition No.13182 of 2006 which was filed under Article 226 of the Constitution
of India, 1950 (in short the Constitution). In the writ petition, the
writ petitioner, i.e. respondent No.1, had prayed for a direction to the
investigating agency to proceed with fair and proper investigation in case
No.147 of 2006 under Section 307 of the Indian Penal Code, 1860 (in short the
IPC) registered at Police Station Nauchandi, district Meerut.
The writ petitioner alleged that his son had sustained fire arm injuries at the
hands of some unknown miscreants on 30.3.2006 at 10.00 a.m. and in regard to it a case was registered. Initially, Sri
R.P. Singh, Station Officer, Nauchandi had recorded the statement of the
informant and the injured-Dhananjay who had categorically stated that the
present appellants had caused fire arm injuries on him. Subsequently, the
investigation was undertaken by one Chet Singh, SI who submitted the final report
excluding the afore-named accused i.e. the present appellants in the offence.
The final report was on the basis of alibi claimed by the accused persons. The
High Court was of the view that from the beginning the writ petitioner was
apprehending that there would be no fair and proper investigation into the case
as the accused persons are influential persons. The High Court was of the view
that whether any alibi can be accepted is for the trial court to decide.
Accordingly, the High Court inter alia gave the following directions:
In
above view of the matter the petitioner is directed to approach the learned
Magistrate concerned within 10 days and file protest petition and the learned
Magistrate concerned taking into account the statement of the injured and the
injury report press a proper and appropriate order in accordance with law
within a week thereafter and till then the final report No.32 of 2006 shall not
be given effect to and in case the final report has already been accepted the
same shall be treated to have been rejected.
This
Court is anxious to know the order passed by the learned Magistrate, list this
writ petition before us on 20th April, 2007
for the report of the learned Magistrate concerned.
3. In
support of the appeal, learned counsel for the appellants submitted that the
directions given by the High Court are not sustainable in law. The course to be
adopted when the final report is submitted has been indicated by this Court in
several cases. In this case what the High Court indirectly directed was
rejection of the final report as would be evident from the fact that the High
Court expressed its anxiety to know the order passed by the Magistrate and kept
the writ petition pending for report of the concerned learned Magistrate. It
was submitted that in view of the clear indication of view made by the High
Court, the trial court was bound to be influenced. In fact the order by the
High Court was passed on 16.3.2007. This Court directed interim stay of the
High Courts order by order dated 20th April, 2007. Before the said order could be
passed, the trial court in fact had rejected the final report by order dated 16th April, 2007. In the said order, the learned
Magistrate categorically referred to the order passed by the High Court.
Therefore, there was no independent application of mind.
4. In
response, learned counsel for respondent No.1 has submitted that the Magistrate
has decided the matter uninfluenced by any observation of the High Court and he
exercised the jurisdiction de hors the High Courts order.
5.
There is no provision in the Code of Criminal Procedure, 1973 (in short the
Code) to file a protest petition by the informant who lodged the
first information report. But this has been the practice. Absence of a
provision in the Code relating to filing of a protest petition has been
considered. This Court in Bhagwant Singh v. Commissioner of Police and Another
(AIR 1985 SC 1285), stressed on the desirability of intimation being given to
the informant when a report made under Section 173 (2) is under consideration.
The Court held as follows:
....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 submission 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 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...
6.
Therefore, there is no shadow of doubt that the informant is entitled to a
notice and an opportunity to be heard at the time of consideration of the
report. This Court further held that the position is different so far as an
injured person or a relative of the deceased, who is not an informant, is
concerned. They are not entitled to any notice. This Court felt that the
question relating to issue of notice and grant of opportunity as
afore-described was of general importance and directed that copies of the
judgment be sent to the High Courts in all the States so that the High Courts
in their turn may circulate the same among the Magistrates within their
respective jurisdictions.
7. In Abhinandan
Jha and Another v. Dinesh Mishra (AIR 1968 SC 117), this Court while
considering the provisions of Sections 156(3), 169, 178 and 190 of the Code
held that there is no power, expressly or impliedly conferred, under the Code,
on a Magistrate to call upon the police to submit a charge sheet, when they
have sent a report under Section 169 of the Code, that there is no case made
out for sending up an accused for trial. The functions of the Magistrate and
the police are entirely different, and the Magistrate cannot impinge upon the
jurisdiction of the police, by compelling them to change their opinion so as to
accord with his view. However, he is not deprived of the power to proceed with
the matter.
There
is no obligation on the Magistrate to accept the report if he does not agree
with the opinion formed by the police. The power to take cognizance
notwithstanding formation of the opinion by the police which is the final stage
in the investigation has been provided for in Section 190(1)(c).
8.
When a report forwarded by the police to the Magistrate under Section 173(2)(i)
is placed before him several situations 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 either
(1) accept
the report and take cognizance of the offence and issue process, or
(2) may
disagree with the report and drop the proceeding, or
(3) may
direct further investigation under Section 156(3) and require the police to
make a further report. The report may on the other hand state that according to
the police, no offence appears to have been committed. When such a report is
placed before the Magistrate he has again option of adopting one of the three
courses open i.e.,
(1) he
may accept the report and drop the proceeding; or
(2) he
may disagree with the report and take the view that there is sufficient ground
for further proceeding, take cognizance of the offence and issue process; or
(3) he
may direct further investigation to be made by the police under Section 156(3).
The position is, therefore, now well-settled that upon receipt of a police report
under Section 173(2) a Magistrate is entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even if the police report is to the effect
that no case is made out against the accused.
The
Magistrate can take into account the statements of the witnesses examined by
the police during the investigation and take cognizance of the offence
complained of and order the issue of process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can take cognizance of an offence only if
the Investigating Officer gives an opinion that the investigation has made out
a case against the accused. The Magistrate can ignore the conclusion arrived at
by the Investigating Officer and independently apply his mind to the facts
emerging from the investigation and take cognizance of the case, if he thinks
fit, exercise of his powers under Section 190(1)(b) and direct the issue of
process to the accused. The Magistrate is not bound in such a situation to
follow the procedure laid down in Sections 200 and 202 of the Code for taking
cognizance of a case under Section 190(1)(a) though it is open to him to act
under Section 200 or Section 202 also. [See M/s. India Sarat Pvt. Ltd. v. State
of Karnataka and another (AIR 1989 SC 885)].
The
informant is not prejudicially affected when the Magistrate decides to take
cognizance and to proceed with the case. But where the Magistrate decides that
sufficient ground does not subsist for proceeding further and drops the
proceeding or takes the view that there is material for proceeding against some
and there are insufficient grounds in respect of others, the informant would
certainly be prejudiced as the First Information Report lodged becomes wholly
or partially ineffective. Therefore, this Court indicated in Bhagwant
Singhs case (supra) that where the Magistrate decides not to take
cognizance and to drop the proceeding or takes a view that there is no
sufficient ground for proceeding against some of the persons mentioned in the
First Information Report, notice to the informant and grant of opportunity of
being heard in the matter becomes mandatory.
As
indicated above, there is no provision in the Code for issue of a notice in
that regard.
9. We
may add here that the expressions charge-sheet or final
report are not used in the Code, but it is understood in Police Manuals of
several States containing the Rules and the Regulations to be a report by the
police filed under Section 170 of the Code, described as a
charge-sheet. In case of reports sent under Section 169, i.e., where
there is no sufficiency of evidence to justify forwarding of a case to a
Magistrate, it is termed variously i.e., referred charge, final report or
summary. Section 173 in terms does not refer to any notice to be given to raise
any protest to the report submitted by the police. Though the notice issued
under some of the Police Manuals states it to be a notice under Section 173 of
the Code, though there is nothing in Section 173 specifically providing for
such a notice.
10. As
decided by this Court in Bhagwant Singhs case (supra), the Magistrate has
to give the notice to the informant and provide an opportunity to be heard at
the time of consideration of the report. It was noted as follows:- ....the
Magistrate must give notice to the informant and provide him an opportunity to
be heard at the time of consideration of the report...
11.
Therefore, the stress is on the issue of notice by the Magistrate at the time
of consideration of the report. If the informant is not aware as to when the matter
is to be considered, obviously, he cannot be faulted, even if protest petition
in reply to the notice issued by the police has been filed belatedly. But as
indicated in Bhagwant Singhs case (supra) the right is conferred on the
informant and none else.
12.
The aforesaid position was highlighted by this Court in Gangadhar Janardan Mhatre
v. State of Maharashtra and Ors. (2004 (7) SCC 768).
13.
The High Court could not have directed the writ petitioner to lodge the protest
petition. It was for the informant to do so if he intended to do so. The High
Court further could not have kept the matter pending and indicated its anxiety
to know the order passed by the learned Magistrate. As rightly contended by
learned counsel for the appellants it is clearly indicative of the fact that
the High Court wanted the rejection of the final report though it was not
specifically spelt out.
14. In
the circumstances, we set aside the order passed by the High Court and the
consequential order dated 16.4.2007 passed by the Magistrate. The protest
petition, if filed, shall be considered by the learned Magistrate in accordance
with law uninfluenced by any observation made by the High Court. We make it
clear that we have not expressed any opinion on the merits of the case. The
writ petition filed before the High Court shall be treated to have been
disposed of and not pending.
15.
The appeal is accordingly disposed of.
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