In my opinion, the order passed by the Magistrate, which was
based only on the decision as aforesaid of the Rajasthan High Court in the
case of Hardev Singh Sandhu (supra), which decision was not followed,
even by the same High Court subsequently, needs to be interfered with.
The learned Additional Sessions Judge has also placed reliance only on
the said decision of the Rajasthan High Court, without noticing the decision
of the Supreme Court in Chandra Deo Singh Vs. Prakash Chandra
Bose alias Chabi Bose and another, AIR 1963 Supreme Court 1430.
From the observations made by their Lordships in the said reported
judgment, the principle that an accused cannot have any right to participate
in any proceedings, which are taking place before it is decided that the
accused should be proceeded against, can be deduced. The position of
law that till a Magistrate decides to proceed against an accused, the
accused should have no say in the proceedings which take place before
such a decision by a Magistrate is arrived at, seems to be well settled. In
the light of this position, simply on the ground that the first informant is
being given a hearing in the matter, it would not be proper to give hearing
to an accused.
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL WRIT PETITION NO. 732 OF 2011
Gopal Bhagwan Sonar,
V E R S U S
The State of Maharashtra,
Read original judgment here; click here
CORAM
: ABHAY M. THIPSAY, J.
DATE : 26th September, 2013.
Citation; 2014 CRLJ(NOC)453 Bom
4 The Petitioner is the original first informant. He had lodged a
report with the Parola Police Station, District Jalgaon alleging commission
of offences punishable under Sections 392 of the IPC, 342 of the IPC, 468
of the IPC, 471 of the IPC and 420 of the IPC read with Section 34 of the
IPC and the offence punishable under Sections 25 of the Arms Act read
with Section 3 thereof by the Respondent No.2 herein and two others.
After investigation, the police concluded that it was a false case and filed a
‘B’ summary report. The learned Magistrate before considering ‘B’
summary report, issued notice to the Petitioner, he being the first informant.
At this stage, the Respondent No.2 came forward and made an application
before the Magistrate praying that ‘since the first informant was being given
an opportunity of being heard in connection with ‘B’ summary report filed
by the investigating agency, the Respondent No.2 i.e. the accused, should
also be heard in the matter’. The learned Magistrate, by relying on a
decision of the Rajasthan High Court in the case of Hardev Singh
Sandhu Vs. State of Rajasthan and others, reported in 1986 Cri. L. J.
1515 Rajasthan, allowed the application of Respondent No.2 to participate
in the proceedings for deciding whether or not to accept the ‘B’ summary
report. Being aggrieved thereby, the Petitioner moved the Court of
Sessions by filing an application for revision, but the learned Additional
Sessions Judge, Amalner, who heard the revision application, dismissed
the same, once again relying upon the same decision of the Rajasthan
High Court.
5 It is in these circumstances, that the Petitioner has
approached this Court challenging the order passed by the learned
Magistrate and the order passed by the learned Additional Sessions Judge,
in the revision.
6 I have heard Mr. V.B.Patil, the learned counsel for the
Petitioner. I have heard Mr. S.B.Yawalkar, the learned counsel for
Respondent No.2, as also Smt. S.D.Shelke, learned APP for the State –
the Respondent No.1.
7 The main contention advanced by the learned counsel for the
Petitioner is that Respondent No.2, being an accused, had no locusstandi
to remain present before the Magistrate and participate in the proceeding
which were meant for deciding whether or not to accept the ‘B’ summary
report filed by the investigating agency. It is submitted that there are a
number of decisions of the Supreme Court of India, laying down that until
an order issuing process is passed against him, an accused person does
not come into picture, at all.
8 I have considered the matter. I have gone through the
decision of the Rajasthan High Court in the aforesaid reported case. The
observations made by the Rajasthan High Court in the aforesaid case of
Hardev Singh Sandhu (supra), which are reproduced by the learned
Magistrate in his order allowing Respondent No.2 to participate in the
proceedings in connection with ‘B’ summary report read as under:When
a protest petition “ is lodged and
the complainant wants to be heard in
support of the protest petition, if the accused
persons want to join the proceedings, to put
them at par with the complainant and to
comply with the principles of natural justice, if
the learned Magistrate allows the accused to
participate in the proceedings, it cannot be
said that the order of the learned Magistrate
is erroneous or calls for any interference”.
It has been pointed out to me that this decision of the Rajasthan
High Court, which is delivered by a learned Single Judge, was
subsequently not followed by another learned Single Judge of the same
High Court in the case of Vishnu Dutt and another Vs. Govind Das and
others, reported in 1995 Cri. L. J. 263, after referring to a number of
pronouncements of the Supreme Court of India and by holding that the
decision in the case of Hardev Singh Sandhu (supra), was not good law.
9 In my opinion, the Respondent No.2 had no locusstandi
to
participate in the proceedings that would take place before the Magistrate
for deciding whether or not to accept ‘B’ summary report. The reason is
obvious. It is well settled that until a formal accusation is levelled against
an accused, or until a decision to proceed against the him is taken, the
accused would not have any say in the matter. It would not be for the
accused to appear before the Court and contend that the proceedings
against him should not be initiated, when the Court is yet undecided, as to
whether such proceedings should be initiated or not. The reason why the
first informant needs to be heard when a ‘B’ summary report is filed, is
obvious. It is because the the report of the investigating agency is adverse
to the claims and contentions of the first informant. Fairness, therefore,
requires that he should be given an opportunity of being heard and to point
out how the conclusion arrived at by the investigating agency is wrong.
The case of the accused at that stage, would be totally different. The
investigating agency having already come to a conclusion, which is in his
favour, the contest would be between the investigating agency and the first
informant. It is the first informant who is aggrieved by the decision of the
investigating agency and it is therefore that he is required to be heard
before the conclusion arrived at by the investigating agency, is accepted.
The accused is not at all aggrieved by the filing of a ‘B’ summary report.
Therefore, there would be no parity between him and the first informant.
Merely because the first informant is required to be heard, at that stage,
the accused cannot claim that he also should be heard. The position of the
accused in such a case would be totally different from that of the first
informant and therefore, on the view that since the first informant is to be
heard, principles of natural justice require that the accused should also be
heard, cannot be accepted.
10 In my opinion, the order passed by the Magistrate, which was
based only on the decision as aforesaid of the Rajasthan High Court in the
case of Hardev Singh Sandhu (supra), which decision was not followed,
even by the same High Court subsequently, needs to be interfered with.
The learned Additional Sessions Judge has also placed reliance only on
the said decision of the Rajasthan High Court, without noticing the decision
of the Supreme Court in Chandra Deo Singh Vs. Prakash Chandra
Bose alias Chabi Bose and another, AIR 1963 Supreme Court 1430.
From the observations made by their Lordships in the said reported
judgment, the principle that an accused cannot have any right to participate
in any proceedings, which are taking place before it is decided that the
accused should be proceeded against, can be deduced. The position of
law that till a Magistrate decides to proceed against an accused, the
accused should have no say in the proceedings which take place before
such a decision by a Magistrate is arrived at, seems to be well settled. In
the light of this position, simply on the ground that the first informant is
being given a hearing in the matter, it would not be proper to give hearing
to an accused.
The impugned order therefore, cannot be sustained.
11 In the result, the petition succeeds.
12 The order dated 4th August, 2010 passed by the learned
Judicial Magistrate First Class, Parola below Exhibit – 8 in B Final No.31 of
2008, and the order dated 13th October, 2010 passed by the Additional
Sessions Judge, Amalner in Criminal Revision Application No.436 of 2010,
are set aside.
The learned Magistrate shall proceed further in the matter, in
accordance with law.
13 The Petition is allowed in the aforesaid terms.
14 Rule is made absolute accordingly.
[ ABHAY M. THIPSAY, J. ]
Print Page
based only on the decision as aforesaid of the Rajasthan High Court in the
case of Hardev Singh Sandhu (supra), which decision was not followed,
even by the same High Court subsequently, needs to be interfered with.
The learned Additional Sessions Judge has also placed reliance only on
the said decision of the Rajasthan High Court, without noticing the decision
of the Supreme Court in Chandra Deo Singh Vs. Prakash Chandra
Bose alias Chabi Bose and another, AIR 1963 Supreme Court 1430.
From the observations made by their Lordships in the said reported
judgment, the principle that an accused cannot have any right to participate
in any proceedings, which are taking place before it is decided that the
accused should be proceeded against, can be deduced. The position of
law that till a Magistrate decides to proceed against an accused, the
accused should have no say in the proceedings which take place before
such a decision by a Magistrate is arrived at, seems to be well settled. In
the light of this position, simply on the ground that the first informant is
being given a hearing in the matter, it would not be proper to give hearing
to an accused.
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL WRIT PETITION NO. 732 OF 2011
Gopal Bhagwan Sonar,
V E R S U S
The State of Maharashtra,
Read original judgment here; click here
CORAM
: ABHAY M. THIPSAY, J.
DATE : 26th September, 2013.
Citation; 2014 CRLJ(NOC)453 Bom
4 The Petitioner is the original first informant. He had lodged a
report with the Parola Police Station, District Jalgaon alleging commission
of offences punishable under Sections 392 of the IPC, 342 of the IPC, 468
of the IPC, 471 of the IPC and 420 of the IPC read with Section 34 of the
IPC and the offence punishable under Sections 25 of the Arms Act read
with Section 3 thereof by the Respondent No.2 herein and two others.
After investigation, the police concluded that it was a false case and filed a
‘B’ summary report. The learned Magistrate before considering ‘B’
summary report, issued notice to the Petitioner, he being the first informant.
At this stage, the Respondent No.2 came forward and made an application
before the Magistrate praying that ‘since the first informant was being given
an opportunity of being heard in connection with ‘B’ summary report filed
by the investigating agency, the Respondent No.2 i.e. the accused, should
also be heard in the matter’. The learned Magistrate, by relying on a
decision of the Rajasthan High Court in the case of Hardev Singh
Sandhu Vs. State of Rajasthan and others, reported in 1986 Cri. L. J.
1515 Rajasthan, allowed the application of Respondent No.2 to participate
in the proceedings for deciding whether or not to accept the ‘B’ summary
report. Being aggrieved thereby, the Petitioner moved the Court of
Sessions by filing an application for revision, but the learned Additional
Sessions Judge, Amalner, who heard the revision application, dismissed
the same, once again relying upon the same decision of the Rajasthan
High Court.
5 It is in these circumstances, that the Petitioner has
approached this Court challenging the order passed by the learned
Magistrate and the order passed by the learned Additional Sessions Judge,
in the revision.
6 I have heard Mr. V.B.Patil, the learned counsel for the
Petitioner. I have heard Mr. S.B.Yawalkar, the learned counsel for
Respondent No.2, as also Smt. S.D.Shelke, learned APP for the State –
the Respondent No.1.
7 The main contention advanced by the learned counsel for the
Petitioner is that Respondent No.2, being an accused, had no locusstandi
to remain present before the Magistrate and participate in the proceeding
which were meant for deciding whether or not to accept the ‘B’ summary
report filed by the investigating agency. It is submitted that there are a
number of decisions of the Supreme Court of India, laying down that until
an order issuing process is passed against him, an accused person does
not come into picture, at all.
8 I have considered the matter. I have gone through the
decision of the Rajasthan High Court in the aforesaid reported case. The
observations made by the Rajasthan High Court in the aforesaid case of
Hardev Singh Sandhu (supra), which are reproduced by the learned
Magistrate in his order allowing Respondent No.2 to participate in the
proceedings in connection with ‘B’ summary report read as under:When
a protest petition “ is lodged and
the complainant wants to be heard in
support of the protest petition, if the accused
persons want to join the proceedings, to put
them at par with the complainant and to
comply with the principles of natural justice, if
the learned Magistrate allows the accused to
participate in the proceedings, it cannot be
said that the order of the learned Magistrate
is erroneous or calls for any interference”.
It has been pointed out to me that this decision of the Rajasthan
High Court, which is delivered by a learned Single Judge, was
subsequently not followed by another learned Single Judge of the same
High Court in the case of Vishnu Dutt and another Vs. Govind Das and
others, reported in 1995 Cri. L. J. 263, after referring to a number of
pronouncements of the Supreme Court of India and by holding that the
decision in the case of Hardev Singh Sandhu (supra), was not good law.
9 In my opinion, the Respondent No.2 had no locusstandi
to
participate in the proceedings that would take place before the Magistrate
for deciding whether or not to accept ‘B’ summary report. The reason is
obvious. It is well settled that until a formal accusation is levelled against
an accused, or until a decision to proceed against the him is taken, the
accused would not have any say in the matter. It would not be for the
accused to appear before the Court and contend that the proceedings
against him should not be initiated, when the Court is yet undecided, as to
whether such proceedings should be initiated or not. The reason why the
first informant needs to be heard when a ‘B’ summary report is filed, is
obvious. It is because the the report of the investigating agency is adverse
to the claims and contentions of the first informant. Fairness, therefore,
requires that he should be given an opportunity of being heard and to point
out how the conclusion arrived at by the investigating agency is wrong.
The case of the accused at that stage, would be totally different. The
investigating agency having already come to a conclusion, which is in his
favour, the contest would be between the investigating agency and the first
informant. It is the first informant who is aggrieved by the decision of the
investigating agency and it is therefore that he is required to be heard
before the conclusion arrived at by the investigating agency, is accepted.
The accused is not at all aggrieved by the filing of a ‘B’ summary report.
Therefore, there would be no parity between him and the first informant.
Merely because the first informant is required to be heard, at that stage,
the accused cannot claim that he also should be heard. The position of the
accused in such a case would be totally different from that of the first
informant and therefore, on the view that since the first informant is to be
heard, principles of natural justice require that the accused should also be
heard, cannot be accepted.
10 In my opinion, the order passed by the Magistrate, which was
based only on the decision as aforesaid of the Rajasthan High Court in the
case of Hardev Singh Sandhu (supra), which decision was not followed,
even by the same High Court subsequently, needs to be interfered with.
The learned Additional Sessions Judge has also placed reliance only on
the said decision of the Rajasthan High Court, without noticing the decision
of the Supreme Court in Chandra Deo Singh Vs. Prakash Chandra
Bose alias Chabi Bose and another, AIR 1963 Supreme Court 1430.
From the observations made by their Lordships in the said reported
judgment, the principle that an accused cannot have any right to participate
in any proceedings, which are taking place before it is decided that the
accused should be proceeded against, can be deduced. The position of
law that till a Magistrate decides to proceed against an accused, the
accused should have no say in the proceedings which take place before
such a decision by a Magistrate is arrived at, seems to be well settled. In
the light of this position, simply on the ground that the first informant is
being given a hearing in the matter, it would not be proper to give hearing
to an accused.
The impugned order therefore, cannot be sustained.
11 In the result, the petition succeeds.
12 The order dated 4th August, 2010 passed by the learned
Judicial Magistrate First Class, Parola below Exhibit – 8 in B Final No.31 of
2008, and the order dated 13th October, 2010 passed by the Additional
Sessions Judge, Amalner in Criminal Revision Application No.436 of 2010,
are set aside.
The learned Magistrate shall proceed further in the matter, in
accordance with law.
13 The Petition is allowed in the aforesaid terms.
14 Rule is made absolute accordingly.
[ ABHAY M. THIPSAY, J. ]
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