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1988 Supreme(All) 110
IN THE HIGH COURT OF ALLAHABAD
V. P. Mathur
PANCHAM SINGH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Revision 654 Of 1987
Decided On : 02/25/1988
A.D.Giri, A.K.SINGH, Gajendra Pratap, Krishna Khare
A Magistrate must give notice to the informant and provide him an opportunity to be heard before dropping proceedings against some of the persons mentioned in the First Information Report.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 190(1)(B) - COGNIZANCE OF OFFENCE - FINAL REPORT - PROTEST PETITION - COMPLAINT - SECTION 200 AND 202 CR. P. C. - OPPORTUNITY OF BEING HEARD TO THE INFORMANT - SECTION 173(2)(1) CR. P. C. - SECTION 319 CR. P. C. - SUMMARY OF THE ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT.
Fact of the Case:
A first information report was lodged against ten persons. The police investigated the case and submitted a charge-sheet against seven persons and a final report against the remaining three. The Magistrate took cognizance against the seven persons and accepted the final report against the three. The first informant filed a protest petition, which was treated as a complaint, and the Magistrate passed an order accordingly.
Finding of the Court:
The Magistrate should have given a notice to the first-informant before dropping proceedings against the three revisionists, so that he could have shown that a prima facie case was made out against them also.
Issues: Whether the Magistrate was right in dropping proceedings against the three revisionists without giving a notice to the first-informant.
Ratio Decidendi: The Supreme Court has held that when a Magistrate decides not to take cognizance of an offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, he must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.
Final Decision: The order passed by the learned Sessions Judge is set aside. It will be open to the first informant to have his protest petition already filed before the learned Magistrate considered on merits and in case the learned Magistrate finds it to be in accordance with the provisions of 5. 2 (d) of the Code of Criminal Procedure, he may proceed with its determination and pass suitable orders in accordance with law.
( 1 ) THIS revision was taken up for disposal after the revision of the list on 25. 1. 1988.
( 2 ) MR. A. D. Gin learned counsel for the applicant was heard. The learned counsel for the State was also heard. No one appeared for the complainant first informant Uma Shanker Singh alias Buchani Singh. This judgment was dictated in open Court, but it could not be signed. Meanwhile an application was moved on behalf of Uma Shankar Singh alias Buchani Singh to the effect that his counsel may be heard as he was unable to attend the court on that particular date. Request was allowed. The judgment that was dictated, was neither transcribed nor signed by this Court hence the revision was taken up for hearing afresh on 18. 2. 1988.
( 3 ) THE learned counsel on both sides were heard.
( 4 ) A brief point is involved. It appears that against ten persons, a first information report was lodged. The police investigated the case. There was change of Investigating Officers one after the other and it fell to the lot of the third Investigating Officer to ultimately submit a charge-sheet against seven persons only. Simultaneously he submitted the police report, which in common parlance is known as final report against three present applicants Panchan Singh, Harbansh Singh and Gulab Singh. The learned Magistrate before whom the matter went up, took cognizance against the seven persons; against whom charge-sheet was submitted and also accepted the final report against the remaining three persons who are the present revisionists. Then a protest petition was moved, after the magistrate had already passed the order and the learned Magistrate took the view that since he had already taken cognizance of the - offence once he could not take cognizance again against the remaining three persons under see 190 (1) (b) of the Code of Criminal Procedure and the only way open for the first informant was to adduce evidence at the stage of section 319 of the Cr. P. c. when an order to summon the three applicants revisionists may also he made, if it is found proper on the basis of the evidence that is adduced. The matter went up before Mr. S. K. Srivastava, the then Sessions Judge of Ghazipur through Criminal Revision No. 15 of 1987 and the learned Judge was of the view that the Magistrate ought to have taken cognizance under section 190 (1) (b) of the Code of Criminal Procedure against Panchan Singh. Harbansh Singh and Gulab Singh also on the basis of the police papers that is the Case Diary, in as much as there was prima facie evidence in the statements under section 161 Cr. P. C. He, therefore, directed the Magistrate to take cognizance and proceed with the matter and also directed the parties to appear before him on 24 2. 1987. He passed this order on 62. 1987.
( 5 ) THE present revision has been filed against that revisional order of the Sessions Judge dated 6. 21987. The legal position is quite clear. Once a final report is submitted against some body and simultaneously a charge sheet is submitted against the others, if the Magistrate takes cognizance on the basis of the charge sheet and accepts the final report, a protest petition will lie and if such protest petition has all the ingredients mentioned in section -2 (d) of the Code of Criminal Procedure it can be treated as a complaint and proceedings of complaint case may go on involving sections 200 and 202 Cr. P. C. The Magistrate can then pass an order according to law.
( 6 ) IT has also been laid down by the Supreme Court in the case of Bhagwat Singh v. Commissioner of Police1, that when on consideration of the report made by the Officer-in-charge of the police station under sub - section (2) (1) of Sec. 173 the Magistrate is riot inclined to take cognizance of the offence and issue process in respect of some of the accused, the first informant must be given an opportunity of being heard so that he can make his submission to pursuade the Magistrate to take cognizance of the offence and is
