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2017 Supreme(Gau) 759
GAUHATI HIGH COURT (AIZAWL BENCH)
M.R. PATHAK, J.
Sh. Ajay Kumar Rai S/o. Late Jai Prakash Rai R/o Village Post Pidough, Sing Pur District - Mau - 275301, Uttar Pradesh - Petitioner
Versus
The State of Mizoram represented by the Chief Secretary to the Government of Mizoram, Aizawl - Respondent
WP (Crl.) No. 2 of 2016
Decided on : 15-02-2017
For the Petitioner:Mr. C. Lalramzauva, Senior Advocate with Mr. A.R. Malhotra, Mr. M. Khiangte, Ms. Lalremthuangi and Ms. Emily L. Chhangte, Advocates.
For the Respondent: Mr. A.K. Rokhum, Public Prosecutor, Mizoram.
Headnote:
Criminal Procedure Code, 1973 – Section 482 – Arms Act – Section 27(3) – Indian Penal Code Sections 302/120 B – First Information Report – Perused the relevant record of the case that was called for by this Court from the Court of learned Judicial Magistrate First Class, Champhai – Petitioner as an informant lodged an FIR before the Ngopa Police Station, Champhai District stating that his younger brother, who was serving in the 39th Assam Rifle, B. Coy, Mimbung Post met with an unnatural death of by shooting himself with his service weapon – In the said FIR, the said informant also stated many facts alleging about enmity of some personnel of said security force with his brother and that authorities of the Assam Rifles also removed the body of his brother from the place of occurrence before police could reach the place and had done his post mortem at Aizawl in spite of having such facility at Community Health Centre (CHC) at Ngopa, nearest to the place of the incident –Held, Exercising the inherent power under Section 482 CrPC, this Court sets aside and quash the order of the Judicial Magistrate First Class, Champhai passed in said Ngopa PS Case accepting the Final Report submitted by the Sub-Divisional Police Officer Khawzawl PS Case –Further, the said Judicial Magistrate First Class, Champhai is directed to issue notice to the petitioner/informant of Ngopa PS Case enabling him to file a Protest Petition with regard to the Final Report in Ngopa PS Case if so he desires and to provide him an opportunity of hearing at the time of consideration of the said Final Report – Thereafter, the said Magistrate shall pass an appropriate order with regard to the said Final Report by taking any one of the three options as laid down by the Honble Supreme Court in the case of Bhagwant Singh (supra), noted above – Criminal petition stands allowed.
M.R. Pathak, J. (Oral)
Heard Mr. Ainil Rinliana Malhotra, learned counsel for the petitioner and Mr. Ashok Kumar Rokhum, learned Public Prosecutor appearing for the State respondent Nos. 1 to 5.
2. Though notices were sent to respondent Nos. 6 to 8 by registered post with A.D. on 24.11.2016 itself but till date neither the A/D card nor the unserved notices have been received back by the Registry of this Court. As such service is deemed to be complete.
3. Perused the relevant record of the case that was called for by this Court on 18.01.2014 from the Court of learned Judicial Magistrate First Class, Champhai.
4. On 08.09.2014, the petitioner as an informant lodged an FIR before the Ngopa Police Station, Champhai District stating that his younger brother, G/5013917 Ajeet Kumar Rai, who was serving in the 39th Assam Rifle, B. Coy, Mimbung Post on 18.08.2014 met with an unnatural death of by shooting himself with his service weapon of AK-47. In the said FIR, the said informant also stated many facts alleging about enmity of some personnel of said security force with his brother and that authorities of the Assam Rifles also removed the body of his brother from the place of occurrence before police could reach the place and had done his post mortem at Aizawl in spite of having such facility at Community Health Centre (CHC) at Ngopa, nearest to the place of the incident.
5. The said FIR of the petitioner/informant was registered as Ngopa Police Station Case No. 28/2014 under Sections 302/120 'B' IPC read with Section 27(3) of the Arms Act. After completion of the investigation of the said case, the concerned Investigating Officer through the Sub-Divisional Police Officer (SDPO), Khawzawl submitted the Final Report under Section 173 CrPC in said Ngopa PS Case No. 28/2014 vide No. 1/2016 dated 23.02.2016 before the Chief Judicial Magistrate (CJM), Champhai on 26.02.2016.
6. Later, the said Final Report was placed before the Judicial Magistrate First Class (JMFC), Champhai. After perusing the same learned Magistrate found that the said report itself revealed that the Investigating Agency did not leave any stone unturned while conducting the investigation, that there is no hope of detection of culprit(s) in future and that the said case may be revived if any case is detected in future and on the basis of said report of the concerned Police Officer, the learned JMFC, Champhai by an order dated 01.03.2016, accepted the said Final Report No. 1/2016 dated 23.02.2016 submitted by the concerned Police Officer in said Ngopa PS Case No. 28/2014, without informing or giving any opportunity of hearing to the informant of the case, the present petitioner.
7. Hence this criminal petition for setting aside and quash the order dated 01.03.2016 of the JMFC, Champhai passed in said Ngopa PS Case No. 28/2014, accepting the Final Report No. 1/2016 dated 23.02.2016 submitted in the said Ngopa PS Case and to issue necessary direction to give an opportunity of hearing to the petitioner, the informant of said Ngopa PS Case No. 28/2014, while considering the said Final Report dated 23.02.2016.
8. Sub-clause (ii) of Sub-Section (2) of Section 173 of the CrPC regarding report of police officer on completion of investigation, clearly provides that the concerned Police Officer while submitting the report under the said section is also required to communicate the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given, as per the manner that may be prescribed by the State Government.
9. From the record of this case and the original copy of the Final Report dated 23.02.2016 in said Ngopa PS Case No. 28/2014 submitted before the CJM and/or JMFC, Champhai, it is seen that neither the concerned Police Officer, i.e. the SDPO, Khawzawl communicated the informant of said Ngopa PS Case, i.e. the petitioner regarding the action taken by him in said case nor communicated the said report to him. F
