The necessity for a Magistrate to issue notice to the complainant prior to accepting a police report is a mandatory requirement under the law.

1. This is a petition filed under Art.227 of the Constitution of India by the de facto complainant in Crime No. 497/02 of Aluva Police Station. The case of the petitioner is that the case was registered after the petitioner filed a complaint before the learned Magistrate and it was forwarded to the Police for investigation under S.156 (3) of Cr. P.C. and though the refer report submitted by the Police was accepted by the learned Magistrate, no notice was served on him and therefore the acceptance of the final report without notice to the petitioner is illegal and therefore this court has to issue a writ of mandamus directing the first respondent to issue a notice to the petitioner as provided under S.173 (2) of Code of Criminal Procedure .

2. As per order dt. 8. 4. 2005 this court called for the report from the learned Judicial First Class Magistrate-I, Aluva as to whether a refer report has .been filed and whether a notice has been issued to the complainant petitioner before accepting the same and whether the final report has been accepted. The report of the learned Magistrate shows that complaint alleging a commission of offence under S.379, 420, 465, 471, 478 and 477 A of Indian Penal Code was filed by the petitioner was forwarded by the learned Magistrate to the Police under S.156 (3) of the Code of Criminal Procedure for investigation on 19. 9. 2001. Even thereafter, the case was not registered and as per order dt. 9. 5. 2002 the learned Magistrate directed the Deputy Superintendent of Police, Aluva to register the FIR and conduct the investigation. The report also shows that on 17.9.2002 the Sub Inspector of Police, Aluva filed a refer report stating that the allegations raised in the complaint are false. According to the learned Magistrate, the Police did not serve a notice regarding the filing of the final report to the petitioner on the ground that petitioner refused to receive the notice and the report dt. 17.9.2002 was received by the court only on 18. 12. 2002 and the learned Magistrate accepted the final report on 19.12.2002 without issuing a notice to the petitioner.

3. Under S.173(2) of the Code of Criminal Procedure , as soon as the investigation is completed, the officer in charge of the Police Station shall forwarded to the Magistrate empowered to take cognizance of the offence on a Police report and report in the prescribed form under sub-r.(ii). The officer in charge of the Police Station shall also communicate in such manner as may be prescribed by the State Government the action taken by him to the person if any by whom the information relating to the commission of the offence was first given. Therefore under S.173(2) (ii) officer in charge of Police Station who is forwarding the final report to the Magistrate is bound to furnish the intimation to the first informant or the complainant regarding submission of a refer report.

4. Once a report is furnished to the court, the court before accepting the refer report is bound to issue a notice to the complainant or the first informant as the case may be. The position is settled by the Apex Court in Bhagwant Singh v. Commissioner of Police ( 1985 (2) SCC 537 ) as follows:

"in a case where the Magistrate to whom a report is forwarded under sub-s.(2) (i) of S.173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report."

The position is reiterated in Union Public Service Commission v. S. Papaiah ( 1997 (7) SCC 614 ). Even if a notice was issued by the Police, it will not be sufficient. Notice has to