Point of Law: Accused cannot have any right of hearing while a petition under Section 173 (8) of the Code of Criminal Procedure seeking further investigation is taken up for consideration by the learned Magistrate.

JUDGMENT :

KAUSIK CHANDA, J.

1. The petitioner/de-facto complainant/wife lodged a complaint before the Madhyamgram Police Station, following which Madhyamgram Police Station Case No. 771 of 2015 under Sections 498A/406/506 of the Indian Penal Code, 1860 was registered against the opposite party no. 2/accused/husband.

2. Upon completion of the investigation, a charge-sheet was filed by the investigating agency under Sections 498A/406/506 of the Indian Penal Code, 1860 against the opposite party no. 2. The petitioner, however, was not satisfied with the investigation, and she filed a petition under Section 173 (8) of the Code of Criminal Procedure, 1973 for further investigation of the case.

3. In the said petition, the petitioner alleged that the investigating agency had failed to record the statement of the de-facto complainant or the statements of her brothers and mother.

4. It has further been alleged that the opposite party no. 2 siphoned off a sum of Rs. 27,55,675/- from a joint account without knowledge and consent of the petitioner, and in spite of bringing the said fact to the notice of the investigating officer, the charge-sheet was silent about that. It was alleged that the investigation was carried out in a partisan manner to shield the opposite party no. 2 and had not been carried out in a proper and objective manner.

5. The said petition was taken up to hearing before the learned Judicial Magistrate, 1st Court, at Barasat, 24-Parganas (North), and by an order dated December 18, 2019, the learned Magistrate directed the petitioner to serve a copy of the said petition under Section 173 (8) of the Code of Criminal Procedure, 1973 to the opposite party no. 2. The learned Magistrate observed that hearing of the said petition should be done in presence of the opposite party no. 2 in compliance with the principle of natural justice.

6. Challenging the said order dated December 18, 2019, the present revisional application has been filed.

7. Mr. Kaushik Gupta, learned advocate appearing for the petitioner, submits that the learned Magistrate was not justified in directing the petitioner/de-facto complainant to serve a copy of the said petition upon the accused/opposite party no. 2 inasmuch as there is no provision in the Code of Criminal Procedure, 1973, that the accused should be heard in deciding an application under Section 173 (8) of the Code of Criminal Procedure, 1973. It has been, further, submitted by Mr. Gupta that a further investigation is carried out in terms of Section 156 (3) of the Code of Criminal Procedure only and since at the investigation stage the accused has no right of hearing, the accused need not be heard at the time of deciding a petition under Section 173 (8) of the Code of Criminal Procedure filed at the behest of the de-facto complainant.

8. Mr. Gupta, in support of his submission, relied upon the following judgments:

(i) Bhagwant Singh vs. Commissioner of Police, (1985) SCC (Cri) 267

(ii) Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj vs. State of Andhra Pradesh, (1999) 5 SCC 740

(iii) Narendra G. Goel vs. State of Maharashtra, (2009) 6 SCC 65

(iv) Satishkumar Nyalchand Shah vs. State of Gujarat, (2020) 4 SCC 22

9. Mr. Prantick Ghosh, learned advocate appearing for the opposite party no. 2, opposes the submission advanced on behalf of the petitioner and submits that the principle of natural justice requires that the accused should be heard at the time of deciding a protest petition under Section 173 (8) of the Code of Criminal Procedure for the ends of justice.

10. The only point of law that arises for consideration is whether an accused has a right of hearing at the time of deciding a protest petition under Section 173 (8) of the Code of Criminal Procedure before the learned Magistrate.

11. The said issue appears to have been decided by the judgment delivered in Sri. Bhagwan Samardha case.

12. It has been held in the said judgment by the Supreme Case as follows:-

“10. Power of the police t