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IN THE HIGH COURT OF ALLAHABAD
PALOK BASU, G. P. MATHUR, J. C. MISHRA, JJ.
RANJEET SINGH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. MISC. APPLN. 3576 Of 1994
Decided On : 12-11-1999
Whether a Magistrate/court before rejecting a "final-Report" filed by an Investigating Officer, has to hear the accused on his appearing voluntarily or after notice irrespective of the fact whether or not the informant is proposed to be heard with or without a protest petition challenging the said Final Report.
Fact of the Case:
In the instant six matters, the substantial issue is whether a Magistrate/court before rejecting a "final-Report" filed by an Investigating Officer, has to hear the accused on his appearing voluntarily or after notice irrespective of the fact whether or not the informant is proposed to be heard with or without a protest petition challenging the said Final Report.
Finding of the Court:
The Court held that there is no provision under which a Magistrate may take cognizance which provides that subject to the provisions contained in Chapter XIV, any Magistrate of the first class or any Magistrate of the second class specially empowered in this behalf under sub-sec. (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Issues: 1. Whether the accused will be having right to put in appearance to thwart the issue of process by a Court when considering a final report submitted by Investigating Officer? 2. Whether in cases of this kind, the first informant or any relative of the deceased or any other aggrieved person is entitled to be heard at the time of consideration of the report by the Magistrate and whether the Magistrate is bound to issue notice to the informant and provide him an opportunity to be heard at the time of consideration of the report?
Ratio Decidendi: The Court observed that the informant having taken the initiating in lodging the First Information Report with a view to initiating investigation by the police for the purpose of ascertaining whether any offence has been committed and, if so, by whom, is, vitally interested in the result of the investigation and hence the law required that the action taken by the Officer-In charge of a police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under sub-section (2) (1) of Section 173 should also be supplied to him. The Court further observed that the CrPC has empowered Magistrate issuing process to dispense with the personal attendance of an accused and permit him to appear through pleader reserving the right of the Magistrate to call the accused personally whenever necessary in the proceedings. Further, Sec. 206 CrPC has provided the Magistrate to issue such summons in matters covered generally for summary disposal under Sec. 260 CrPC where paying some fine may be enough to finally dispose of the offence which have been denoted as "petty offence."
Final Decision: The Court held that there is absolutely no scope to uphold the argument of the learned counsel for the petitioners that the accused should be afforded an opportunity by the Magistrate / Court before accepting or rejecting a final report submitted by the police after investigation of a First Information Report. The learned Single Judges view in Gajendra Kumar Agrawal 1991 ACC 314 does not lay down the correct law and is hereby over ruled.
PALOK BASU, J.
(1) THE substantial issue in the instant six matters is whether a Magistrate/court before rejecting a "final-Report" filed by an Investigating Officer, has to hear the accused on his appearing voluntarily or after notice irrespective of the fact whether or not the informant is proposed to be heard with or without a protest petition challenging the said Final Report.
(2) HOWEVER, the history of listing of these cases is reprehensible if not condemnable. As early as on 21-7-1994, the Hon'ble the Chief Justice constituted a Full Bench to decide a reference to a Larger Bench made by one of us (Hon. G. P. Mathur J.) in Ranjeet Singhs matter because the Hon'ble the Chief Justice considered the matter to be of general importance. Strangely, it was not listed for nearly three years whereafter the Hon'ble the succeeding Chief Justice passed an order dated 19-6-1997 constituting this Full Bench. The matter however, came to be listed only on 7-9-1999 when it transpired that the aforesaid four criminal miscellaneous applications and one writ petition raising same points were also pending decision by Larger Bench.
(3) IN Ranjeet Singhs referring order it has been noted that in an earlier judgment delivered by Hon. G. P. Mathur, J. , reported in Pratap v. State of U. P. , 1991 Criminal Law Journal 1669 : (1991 All LJ 688) a view had been expressed that :-
"the accused has got no right to be heard at a stage prior to issue of process against him. Neither under the Code of Criminal Procedure nor under principles of natural justice the Magistrate is required to issue notice or afford an opportunity of hearing to an accused in a case where the police has submitted final report but on consideration of the material on record the Magistrate takes cognizance of the offence in exercise of his powers under Section 190 (1) (b) and directs issue of process to the accused. "but, a learned single Judge has in the case of Gajendra Kumar Agarwal v. State of U. P. , 1994 0 ACC 341 preferred a contrary view that :
Once a final report is submitted then before rejecting the same the accused should be heard because it may be that he may be able to per persuade the Magistrate that the final report was justified and no case is made out against him and it will be unfair to hear only the person filing the protest petition but not the accused.
(4) IN Ranjeet Singhs matter the order of the 1st ADJ, Aligarh dated 29-3-1994 upholding the summoning order passed against the accused-applicants by the VACJM, Aligarh in case No. 397/92 is under challenge. Opposite party No. 2 Kallu Singh had lodged a cross report giving rise to case crime No. 285a of 1990 under Sections 147, 148, 149 and 307, I. P. C. on 28-8-1990 at P. S. Sikandra Rao in which a final report was submitted under Section 173, Cr. P. C. by the police upon which Magistrate issued notice to Kallu Singh when he filed a protest petition whereafter the ACJM took cognizance, rejected the final report and summoned the applications vide his order dated 14-9-1992 under Sections 147, 148, 149, 307, IPC. The Sessions Judge upheld the summoning order. Hence, Ranjeet Singh and others are aggrieved by the summoning order on the principal ground that the Magistrate has not heard them even though he has permitted protest petition to be filed and went on to hear the informant Kallu Singh. The accused have an interim order from the Bench concerned staying further proceedings in the Court below.
(5) IN Mohd. Khalils referring order dated 21-8-1997, Hon'ble S. K. Phaujdar, J. desired that it be heard along with Ranjeet Singhs matter. It was recorded in the referring order that if the Courts engage themselves for hearing the accused even before issuing summons, it would amount to holding a parallel trial before the actual trial, which is perhaps not the intention of law.
(6) IN Mohd. Khalids matter the entire proceedings in the Court of the Metropolitan Magistrate III, Kanpur Nagar in Case No. 2/96 Panna Begum v. Mohd. Kha
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