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CASE NO.: Appeal (crl.)  1453 of 2007

PETITIONER: Sanjay Bansal and Anr

RESPONDENT: Jawaharlal Vats and Ors

DATE OF JUDGMENT: 22/10/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 2364 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Allahabad High Court in Criminal Misc.  Writ Petition No.13182 of  2006 which was filed under Article  226 of the Constitution of India, 1950 (in short the  \021Constitution\022). In the writ petition, the writ petitioner, i.e.  respondent No.1, had prayed for a direction to the  investigating agency to proceed with \023fair and proper  investigation in case No.147 of 2006 under Section 307 of the  Indian Penal Code, 1860 (in short the \021IPC\022) registered at Police  Station Nauchandi, district Meerut\024. The writ petitioner alleged  that his son had sustained fire arm injuries at the hands of  some unknown miscreants on 30.3.2006 at 10.00 a.m. and in  regard to it a case was registered. Initially, Sri R.P. Singh,  Station Officer, Nauchandi  had recorded the statement  of the  informant and the injured-Dhananjay who had categorically  stated  that the present appellants had caused fire arm  injuries on him. Subsequently, the investigation was  undertaken by one Chet Singh, SI who submitted the final  report excluding the afore-named accused i.e. the present  appellants in the offence. The final report was on the basis of  alibi claimed by the accused persons. The High Court was of  the view  that from the beginning the writ petitioner was  apprehending that there would be no fair and proper  investigation into the case  as the accused persons are  influential persons. The High Court was of the view that  whether any alibi can be accepted is for the trial court to  decide. Accordingly, the High Court inter alia gave the  following directions:  

       \023In above view of the matter the petitioner  is directed to approach the learned Magistrate  concerned within 10 days and file protest  petition and the learned Magistrate concerned  taking into account the statement of the  injured and the injury report press a proper  and appropriate order in accordance with law  within a week thereafter and till then the final  report No.32 of 2006 shall not be given effect  to and in case the final report has already been

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accepted the same shall be treated to have  been rejected.

       This Court is anxious to know the order  passed by the learned Magistrate, list this writ  petition before us on 20th April, 2007 for the  report of the learned Magistrate concerned.\024   

3.      In support of the appeal, learned counsel for the  appellants submitted that the directions given by the High  Court are not sustainable in law. The course to be adopted  when the final report is submitted has been indicated by this  Court in several cases. In this case what the High Court  indirectly directed was rejection of the final report as would be  evident from the fact that the High Court expressed its anxiety  to know the order passed by the Magistrate and kept the writ  petition pending for report of the concerned learned  Magistrate. It was submitted that in view of the clear  indication of view made by the High Court, the trial court was  bound to be influenced. In fact the order by the High Court  was passed on 16.3.2007. This Court directed interim stay of  the High Court\022s order by order dated 20th April, 2007.  Before  the said order could be passed, the trial court in fact had  rejected the final report by order dated 16th April, 2007. In the  said order, the learned Magistrate categorically referred to the  order passed by the High Court. Therefore, there was no  independent application of mind.

4.      In response, learned counsel for respondent No.1 has  submitted that the Magistrate has decided the matter  uninfluenced by any observation of the High Court and he  exercised the jurisdiction de hors the High Court\022s order.  

5.      There is no provision in the Code of Criminal Procedure,  1973 (in short the \021Code\022) to file a protest petition by the  informant who lodged the first information report. But this has  been the practice. Absence of a provision in the Code relating  to filing of a protest petition has been considered. This Court  in Bhagwant Singh v. Commissioner of Police and Another  (AIR 1985 SC 1285), stressed on the desirability of intimation  being given to the informant when a report made under  Section 173 (2) is under consideration. The Court held as  follows:            \023....There can, therefore, be no doubt that  when, on a consideration of the report made by  the officer in charge of a police station under  Sub-Section (2)(i) of Section 173, the  Magistrate is not inclined to take cognizance of  the offence and issue process, the informant  must be given an opportunity of being heard  so that he can make his submission to  persuade the Magistrate to take cognizance of  the offence and issue process. We are  accordingly of the view that in a case where  the Magistrate to whom a report is forwarded  under Sub-section (2)(i) of Section 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...\024

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     6.      Therefore, there is no shadow of doubt that the informant  is entitled to a notice and an opportunity to be heard at the  time of consideration of the report.  This Court further held  that the position is different so far as an injured person or a  relative of the deceased, who is not an informant, is  concerned.  They are not entitled to any notice.  This Court felt  that the question relating to issue of notice and grant of  opportunity as afore-described was of general importance and  directed that copies of the judgment be sent to the High  Courts in all the States so that the High Courts in their turn  may circulate the same among the Magistrates within their  respective jurisdictions.       7.      In Abhinandan Jha and Another v. Dinesh Mishra (AIR  1968 SC 117), this Court while considering the provisions of  Sections 156(3), 169, 178 and 190 of the Code held that there  is no power, expressly or impliedly conferred, under the Code,  on a Magistrate to call upon the police to submit a charge  sheet, when they have sent a report under Section 169 of the  Code, that there is no case made out for sending up an  accused for trial. The functions of the Magistrate and the  police are entirely different, and the Magistrate cannot impinge  upon the jurisdiction of the police, by compelling them to  change their opinion so as to accord with his view.  However,  he is not deprived of the power to proceed with the matter.  There is no obligation on the Magistrate to accept the report if  he does not agree with the opinion formed by the police.  The  power to take cognizance notwithstanding formation of the  opinion by the police which is the final stage in the  investigation has been provided for in Section 190(1)(c).        8.      When a report forwarded by the police to the Magistrate  under Section 173(2)(i) is placed before him several situations  arise. The report may conclude that an offence appears to have  been committed by a particular person or persons and in such  a case, the Magistrate may either (1) accept the report and  take cognizance of the offence and issue process, or (2) may  disagree with the report and drop the proceeding, or (3) may  direct further investigation under Section 156(3) and require  the police to make a further report. The report may on the  other hand state that according to the police, no offence  appears to have been committed. When such a report is placed  before the Magistrate he has again option of adopting one of  the three courses open i.e., (1) he may accept the report and  drop the proceeding; or (2) he may disagree with the report  and take the view that there is sufficient ground for further  proceeding, take cognizance of the offence and issue process;  or (3) he may direct further investigation to be made by the  police under Section 156(3). The position is, therefore, now  well-settled that upon receipt of a police report under Section  173(2) a Magistrate is entitled to take cognizance of an offence  under Section 190(1)(b) of the Code even if the police report is  to the effect that no case is made out against the accused.   The Magistrate can take into account the statements of the  witnesses examined by the police during the investigation and  take cognizance of the offence complained of and order the  issue of process to the accused. Section 190(1)(b) does not lay  down that a Magistrate can take cognizance of an offence only  if the Investigating Officer gives an opinion that the  investigation has made out a case against the accused. The  Magistrate can ignore the conclusion arrived at by the  Investigating Officer and independently apply his mind to the  facts emerging from the investigation and take cognizance of  the case, if he thinks fit, exercise of his powers under Section

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190(1)(b) and direct the issue of process to the accused. The  Magistrate is not bound in such a situation to follow the  procedure laid down in Sections 200 and 202 of the Code for  taking cognizance of a case under Section 190(1)(a) though it  is open to him to act under Section 200 or Section 202 also.  [See M/s. India Sarat Pvt. Ltd. v. State of Karnataka and  another (AIR 1989 SC 885)]. The informant is not prejudicially  affected when the Magistrate decides to take cognizance and to  proceed with the case.  But where the Magistrate decides that  sufficient ground does not subsist for proceeding further and  drops the proceeding or takes the view that there is material  for proceeding against some and there are insufficient grounds  in respect of others, the informant would certainly be  prejudiced as the First Information Report lodged becomes  wholly or partially ineffective. Therefore, this Court indicated  in Bhagwant Singh\022s case (supra) that where the Magistrate  decides not to take cognizance and to drop the proceeding or  takes a view that there is no sufficient ground for proceeding  against some of the persons mentioned in the First  Information Report, notice to the informant and grant of  opportunity of being heard in the matter becomes mandatory.   As indicated above, there is no provision in the Code for issue  of a notice in that regard.          9.      We may add here that the expressions \021charge-sheet\022 or  \021final report\022 are not used in the Code, but it is understood in  Police Manuals of several States containing the Rules and the  Regulations to be a report by the police filed under Section  170 of the Code, described as a \023charge-sheet\024.  In case of  reports sent under Section 169, i.e., where there is no  sufficiency of evidence to justify forwarding of a case to a  Magistrate, it is termed variously i.e., referred charge, final  report or summary. Section 173 in terms does not refer to any  notice to be given to raise any protest to the report submitted  by the police.  Though the notice issued under some of the  Police Manuals states it to be a notice under Section 173 of  the Code, though there is nothing in Section 173 specifically  providing for such a notice.         10.     As decided by this Court in Bhagwant Singh\022s case  (supra), the Magistrate has to give the notice to the informant  and provide an opportunity to be heard at the time of  consideration of the report.  It was noted as follows:-            \023....the Magistrate must give notice to the  informant and provide him an opportunity to  be heard at the time of consideration of the  report...\024             11.     Therefore, the stress is on the issue of notice by the  Magistrate at the time of consideration of the report.  If the  informant is not aware as to when the matter is to be  considered, obviously, he cannot be faulted, even if protest  petition in reply to the notice issued by the police has been  filed belatedly. But as indicated in Bhagwant Singh\022s case  (supra) the right is conferred on the informant and none else.           12.     The aforesaid position was highlighted by this Court in  Gangadhar Janardan Mhatre v. State of Maharashtra and Ors.  (2004 (7) SCC 768).

13.     The High Court could not have directed the writ  petitioner to lodge the protest petition. It was for the informant  to do so if he intended to do so. The High Court further could

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not have kept the matter pending and indicated its anxiety to  know the order passed by the learned Magistrate. As rightly  contended by learned counsel for the appellants it is clearly  indicative of the fact that the High Court wanted the rejection  of the final report though it was not specifically spelt out.   

14.     In the circumstances, we set aside the order passed by  the High Court and the consequential order dated 16.4.2007  passed by the Magistrate. The protest petition, if filed, shall be  considered by the learned Magistrate in accordance with law  uninfluenced by any observation made by the High Court. We  make it clear that we have not expressed any opinion on the  merits of the case. The writ petition filed before the High Court  shall be treated to have been disposed of and not pending.  

15.     The appeal is accordingly disposed of.