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SCR.A/334/1993 8/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 334 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
NATVARLAL
AMBALAL PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 11 - Respondent(s)
=========================================================
Appearance
:
MR
SUMATI R SHAH for
Applicant(s) : 1,MR JAL SOLI UNWALA for Applicant(s) : 1,
MR HH
PARIKH APP for Respondent(s) : 1,
NOTICE SERVED for Respondent(s)
: 2 - 5,8 - 9.
MR AD SHAH for Respondent(s) : 6,
MR TEJAS P
SATTA for Respondent(s) : 7,
MRS SHILPA R SHAH for Respondent(s) :
10,
MR HRIDAY BUCH for Respondent(s) : 11,
MR PRAKASH K JANI
for Respondent(s) :
12,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
Date
: 08/04/2010
ORAL JUDGMENT
By
this petition under Articles 226 and 227 of the
Constitution of India, the petitioner original complainant
challenges the order passed by the learned Chief Judicial Magistrate,
Mehsana in Inquiry Case No.115 of 1986 passed on 30.3.1990
discharging respondent Nos.2 to 10 from the charges in the said
Inquiry case arising from M Case No.49 of 1986. The petitioner is the
original complainant.
The
said order was challenged by the petitioner by preferring Criminal
Revision Application No.83 of 1990 before the Sessions Court, Mehsana
under Section 397 of Cr PC. The Sessions Court, Mehsana Camp at Patan
by judgment and order dated 3.2.1993 dismissed the said revision
application and, therefore, this petition to challenge both the
orders.
2. The
challenge to the order by the Chief Judicial Magistrate was basically
on the ground of not affording audience to the petitioner the
complainant/informant before passing the impugned order accepting the
report on action taken by the Investigating Officer under Section
169 of Cr PC. Reliance was placed on the decision of the Apex Court
as reported in Bhagwant Singh
vs. Commissioner of Police & Anr., AIR 1985 SC 1285.
The revisional Court, however, did not accept the contention raised
by the present petitioner by observing that the report under Section
169 of Cr PC made by the Investigating Officer, even if it is
accepted without hearing the petitioner, is not likely to cause any
prejudice to the complainant. Error, if any, can be rectified
by resorting to Section 319 of Cr PC.
3. Heard
learned advocate Mr Unwala for the petitioner. He has mainly relied
on the decision in the case of Bhagwant Singh (supra) and submitted
that for the purposes of the complainant, the decision of the Court
is final in discharging the accused persons and the petitioner
complainant would be required then to resort to and depend on the
circumstances which may or may not arise for invoking Section 319 of
Cr PC. If the complainant is heard before accepting the report and if
the Magisterial Court finds that there is an error in making of
report, it may not accept the report and may direct further
investigation which would eliminate the chances of uncertainty and
any prejudice being caused to the complainant/informant.
4. Learned
advocate Mr AD Shah for respondent No.6 has opposed this petition.
According to him, no prejudice is caused to the complainant. There is
no provision in law which requires the Court to hear the complainant
before accepting the report in respect of action under Section 169 of
Cr PC and the Courts below cannot be said to have committed any
error.
5. Respondent
No.1-State is represented by learned APP Mr Parikh. Though notices
are served on respondent Nos. 2 to 5, 8 and 9 they have chosen not to
contest this petition. Learned advocate Mr Satta for
respondent No.7, learned advocate Mr Param Buch for
Mr Hriday Buch for respondent No.11 and learned advocate Mr Siddharth
Dave for Mr Jani for respondent No.12 have adopted the arguments of
Mr Shah.
Ms.
Shilpa R Shah for respondent No.10 is not present.
6. The
question that emerges for determination is, whether a complainant is
required to be heard before the Court accepts a report made by
Investigating Officer in respect of his action taken under Section
169 of Cr PC, commonly addressed to as a report under 169 ?
7. In
the opinion of this Court, to call such a report as a report under
Section 169 is not a correct or accurate expression. Section 169 of
Cr PC, if seen, it deals with the release
of the accused when there is deficient evidence. The Section
runs as under :-
169. If,
upon an investigation under this Chapter, it appears to the
officer-in-charge of the police station that there is not sufficient
evidence or reasonable ground of suspicion to justify the forwarding
of the accused to a Magistrate, such officer shall, if such person is
in custody, release him on his executing a bond, with or without
sureties, as such officer may direct, to appear, if and when so
required, before a Magistrate empowered to take cognizance of the
offence on a police report, and to try the accused or commit him for
trial.
8. A
plain reading of this Section would go to show that it makes
obligatory upon the Investigating Officer to release the accused on
his executing a bond with or without sureties, if the Investigating
Officer finds that the evidence is not sufficient or that there is no
reasonable ground of suspicion to justify the forwarding of the
accused to a Magistrate. When such a person is released, a bond is
to be obtained with or without sureties requiring him to appear
before a Magistrate empowered to take cognizance of offence on a
police report and to try the accused or commit him for trial. The
Section nowhere contemplates making of a report by the Investigating
Officer or office in-charge of the police station. It contemplates
only an action at the hands of officer in-charge of police station to
release an accused on bond with or without sureties, if there is
absence of sufficient evidence or reasonable ground of suspicion to
justify the forwarding of the accused to a Magistrate upon an
investigation under the Chapter. Therefore, when a police officer
makes a report to the Magistrate about his action taken under Section
169 of Cr PC, it is not a report under 169 but it is a report on the
action taken by I.O. or by Officer in charge of a police station.
9. It
may be stated that an attempt is made to distinguish such a report
from a report under Section 173 of Cr PC by stating that the judgment
in the case of Bhagwant Singh (supra) will not apply to the facts of
the present case, as in that case, the report was under Section
173(2) of Cr PC and not under Section 169 of Cr PC, like in the
present case.
10. In
fact if the provisions contained in Section 173 of Cr PC are seen,
they deal with a situation where upon completion of investigation,
the officer in-charge of the police station is required to forward to
a Magistrate empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State Government
indicating the names of parties, nature of information, the names of
persons who appear to be acquainted with the circumstances of the
case, whether any offence appears to have committed and, if so, by
whom, whether he has been released on bond and, if so, with or
without sureties and whether he has been forwarded in custody under
Section 170.
10.1 If
a conjoint reading is given to Section 169 it contemplates action
upon investigation whereas Section 173 requires making of a report.
Section 169 does not contemplate making of a report but it only
contemplates taking of bond with or without sureties from the accused
to appear, if and when so required, before a Magistrate empowered to
take cognizance of the offence on a police report and such police
report is contemplated under Section 173 of Cr PC. Clauses (d) and
(f) of Section 173(2)(i) are relevant, which run as under :-
173.
Report of police officer on completion of investigation.
(2)(i) As
soon as it is completed, the officer-in-charge of the police station
shall forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by the
State Government, stating –
(a) to
(c) … … … …
(d) whether
any offence appears to have been committed and, if so, by whom;
(e) … .. … .. … …
(f) whether
he has been released on his bond and, if so, whether with or without
sureties;
(g) .. … … …
10.2 Clause
(d) requires the report to state whether any offence appears to have
been committed and, if so, by whom and clause (f) requires the report
to contain the details as to whether the accused has been released on
his bond and, if so, with or without sureties. These two clauses
would mean that the report would contain whether the offence appears
to have been committed and if so, by whom. Necessarily, therefore,
such persons will have to be forwarded to the Magistrate with the
details of the offence. If it is found not to have been committed,
then by whom. Therefore, when there are more than one persons accused
of some offence and if at the end of investigation, the Investigating
Agency finds that only some of them appear to have committed the
offence and some of them appear not to have committed
the offence, the details of both the categories will have to be
included. The report would also indicate whether the accused has been
released on his bond which would also include release of accused
under Section 169 of Cr PC. Differently put, the provisions contained
in Cr PC, particularly Chapter XII do not contemplate any other
report than Section 173 report, least a report under section 169.
11. The
Supreme Court in the case of Bhagwant Singh (supra) has taken a view
that where a Magistrate decides not to take cognizance of offence or
drops proceedings against some persons mentioned in the FIR, the
Magistrate must give notice and hear the first informant.
12. In
a more recent case in the case of Minu Kumari vs. State of Bihar as
reported in (2006) 4 SCC 359, the Apex Court made the following
observations :-
12. 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. This Court in Bhagwant Singh
vs. Commr. of Police [ (1985) 2 SCC 537] held 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.
13. The
view in the case of Bhagwant Singh (supra) is thus reaffirmed. The
Supreme Court has dealt with cases of reports where there is no
sufficiency of evidence to justify forwarding of a case to a
Magistrate, which is termed variously as referred charge or final
report or summary, i.e. a situation contemplated under Section 169 of
Cr. PC.. It is also observed that Section 173 in terms does not refer
to any notice to be given to raise any protest to the report
submitted by the police. The Court found that 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, which is a situation contemplated under
Section 169 of Cr. PC., the informant would certainly be prejudiced
as the first information report lodged by him becomes wholly or
partially ineffective.
14. Thus,
before accepting the report of the Investigating Agency of either
proceeding against only some of the accused persons and dropping the
proceedings against rest of them or dropping the proceedings against
all the accused persons, it is mandatory that the Magisterial Court
hears the informant/complainant. The Magisterial Court having not
done that and the Sessions Court having upheld the view committed
error in doing so.
15. The
petition, therefore, merits acceptance and the same is accepted. The
order dated 30.3.1990 passed by the learned Chief Judicial
Magistrate, Mehsana in Inquiry Case No.115 of 1986 and the order
dated 3.2.1993 passed by the Sessions Court, Mehsana Camp at Patan
in Criminal Revision Application No.83 of 1990 are hereby set aside.
The Chief Judicial Magistrate is hereby directed to take a decision
on the report of the Investigating Officer afresh after giving
audience to the first informant/complainant.
Rule
is made absolute accordingly.
It
is made clear that this Court has not entered into
the merits of the report and the Magistrate shall decide the same
without being influenced by this judgment.
(A.L.
DAVE, J.)
zgs/-
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