JUDGMENT :

A.L. Dave, J.

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 v. 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,