M.B. SHARMA, J.—In this application under Section 482 Cr.P.C. a question is involved as to whether, if under Sec. 169, after investigation a report under Section 169 Cr.P.C. is made by the Station House Officer of a police station and a protest petition is filed by the complainant, whether the person who is accused of an offence and against whom the police has found that there are no reasons to proceed, has a right of taking part in the proceedings or not ?

2. The facts are not very much disputed and lie in a narrow compass. A complaint was filed by Shri Sardar Hardeo Singh Sandhu, Advocate, who has personally argued this case before me. The said complaint was filed against Dr. S. M. Gupta and others under various Sections of the Indian Penal Code like 284, 307, 326,328, 418,440, 467, 491 read with Section 34 of the I.P.C. It relates to some acts of negligence, Commission, or commission, attributed to the accused-persons in conducting operation upon the complainant Shri H.S. Sandhu, Advocate, and giving treatment to him. The learned Magistrate forwarded the said complaint under Section 156 (3) of the Code of Criminal Procedure to the police station, Sardarpura, Jodhpur, wherein police registered a case. F.I.R. No. 171/84. After investigation, the S. H. O. of the said police station lodged the report under section 169 of the Code of Criminal Procedure to the Court of Judicial Magistrate No. 2, Jodhpur and that report is known as final report in this part. As a result of the investigation, the police recommended that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the Magistrate. It appears that before the report came up for consideration before the learned Magistrate, a protest petition was filed by the complainant Sardar Hardeo Singh Sandhu. At that stage, Shri Varun Gupta, Advocate, who is said to be the son of Dr. S.M. Gupta, one of the accused-persons, put in appearance and sought the permission of the court to participate in the proceedings. Under the impugned order, the learned Magistrate allowed the said petitioner to participate in the proceedings relating to the protest petition.

3. The contention of the complainant, the learned Advocate, is that the law is settled by the Highest Court of the land, that at the stage of enquiry under Sections 200 and 202 of the Code of Criminal Procedure, a person who is suspected of the commission of the offence and against whom an inquiry is being made to arrive at the conclusion as to whether cognizance of an offence against him should be taken or not and a process should be issued or not, has no right of hearing. In support of this submission, the learned Advocate has placed reliance on the case of Chandra Deo v. Prakash Chandra Bose (1). which was relied on in Budhi Prakash v. K.C. Sharma (2). In the case of Chandra Deo (supra), their Lordships of the Supreme Court have renewed the entire scheme contained in Chapter XVI of the Code of Criminal Procedure and have held that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. The aforesaid observations of their Lordships of the Supreme Court were quoted in Budhi Prakashs case (supra) of the Punjab and Haryana High Court and it was held that the accused-persons high officers of the Government of India have no right to join enquiry.

4. It may be stated here that the present one is not a case of that nature. Here, in this case, no inquiry was being made by the Magistrate under Section 202 of the Code of Criminal Procedure.

Click Here to Read the rest of this document