Posted On by &filed under Supreme Court of India.


Supreme Court of India
Bhagwat Singh vs Commissioner Of Police And Anr on 25 April, 1985
Equivalent citations: 1985 AIR 1285, 1985 SCR (3) 942
Author: P Bhagwati
Bench: Bhagwati, P.N.
           PETITIONER:
BHAGWAT SINGH

	Vs.

RESPONDENT:
COMMISSIONER OF POLICE AND ANR.

DATE OF JUDGMENT25/04/1985

BENCH:
BHAGWATI, P.N.
BENCH:
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 dec- eased 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



JUDGMENT:

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.

951


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