2020 Supreme(Bom) 4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. BADAR, J.
Avneesh Harvansh Singh — Appellant
Versus
State Of Maharashtra — Respondent
Criminal Writ Petition No. 5842 of 2019
Decided on : 17-01-2020

Headnote:

CRIMINAL PROCEDURE CODE - Section 173 - C Summary - Notice to First Informant - When necessary - Special features of the case - Settlement of dispute - Withdrawal of criminal proceedings - Affidavit by First Informant for quashing of FIR - No objection to closure of proceedings - No request for withdrawal of letter or statement - No approach to Magistrate for not entertaining closure report - Acceptance of C Summary by Magistrate - No grave injustice or gross failure of justice - Petition dismissed.

Fact of the Case:

Petitioner, First Informant, challenged the order passed by the Additional Sessions Judge, Thane, confirming the order accepting "C" Summary passed by the Judicial Magistrate First Class, Vashi, Navi Mumbai, in Crime No.323 of 2015 for offences punishable under Sections 420, 465, 467, 468, 471 read with 34 of the Indian Penal Code. The FIR was lodged by the petitioner against respondent nos.2 to 6, who are trustees of Nagar Yuvak Shikshan Sanstha, Navi Mumbai, alleging forgery, forgery for the purpose of cheating, using forged documents as genuine and fabrication of documents. The police filed a Final Report under Section 173 of the Cr.P.C. praying for granting "C" Summary, which was accepted by the learned Judicial Magistrate First Class, Vashi, Navi Mumbai, without noticing the petitioner/First Informant.

Finding of the Court:

The court held that the First Informant is entitled for notice when the Magistrate is of the opinion that there is no sufficient ground for proceeding further in the matter so as to give an opportunity to the First Informant to persuade the Magistrate to take cognizance of the offence alleged by him and further to issue process. The Magistrate is entrusted with the task of going through the entire material submitted by the Investigator so also contents of Protest Petition in order to decide further course of action, even if the Investigator had chosen to file Final Report praying for issuance of "C" Summary. Thus, application of mind by the Magistrate is must.

Issues: 1. Whether the First Informant is entitled to notice when the Magistrate decides not to take cognizance and to drop the proceedings though there is no provision in the Cr.P.C. for issuance of such notice? 2. Whether the Magistrate is required to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter before accepting a final report under Section 173 and exonerating the accused? 3. Whether the court can exercise its supervisory jurisdiction under Article 227 of the Constitution of India to correct mere error of law unless the error is manifest and apparent on the face of proceedings causing grave injustice to the affected party or gross failure of justice is resulted by such error?

Ratio Decidendi: 1. Yes, the First Informant is entitled to notice when the Magistrate decides not to take cognizance and to drop the proceedings though there is no provision in the Cr.P.C. for issuance of such notice. This is because the First Informant takes the initiative in lodging the FIR with a view to initiate the investigation for the purpose of ascertaining whether any offence has been committed and if so, by whom. The First Informant is vitally interested in the result of the investigation. 2. Yes, the Magistrate is required to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter before accepting a final report under Section 173 and exonerating the accused. This is because the Magistrate is entrusted with the task of going through the entire material submitted by the Investigator so also contents of Protest Petition in order to decide further course of action, even if the Investigator had chosen to file Final Report praying for issuance of "C" Summary. Thus, application of mind by the Magistrate is must. 3. No, the court cannot exercise its supervisory jurisdiction under Article 227 of the Constitution of India to correct mere error of law unless the error is manifest and apparent on the face of proceedings causing grave injustice to the affected party or gross failure of justice is resulted by such error. This is because the power conferred on this court under Article 227 of the Constitution of India is to advance justice and not to thwart it.

Final Decision: The petition was dismissed.