I am in complete agreement with the
observations of their Lordship of Gujarat High Court.
Therefore, in my opinion also, it is mandatory that the
learned Magistrate is under obligation to hear first informant
before accepting the discharge as submitted by the
Investigating Officer u/s 169 of the Code of Criminal
Procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 205 OF 2002
Maroti S/o Kaluba More
V E R S U S
The State of Maharashtra
CORAM : V.M.DESHPANDE, J.
DATE OF JUDGMENT : 4th FEBRUARY, 2015
Citation;2016 ALLMR(CRI)960
1. Rule. Rule is made returnable forthwith. By
the consent of the learned counsel for the Applicant, and the
learned A.P.P. for respondent Nos. 1 to 3 – State, the present
Criminal Revision Application is taken up for final hearing.
2. Heard Mr. Sk.S.A.R. Ahmed holding for Mr.
A.S.Golegaonkar, the learned counsel for the applicant and
Mr. V.P.Kadam, the learned A.P.P. for respondent Nos. 1 to 3
– State.
3. The applicant/original first informant questions
the correctness and propriety of the Order dated 24/06/2002
passed by the learned Judicial Magistrate First Class,
Kandhar, district Nanded in First Information Report
[hereinafter referred as 'F.I.R.' for brevity] bearing No.
159/2000 discharging the accused persons, who were named
in the said F.I.R.
4. The principal challenge against the said order is
the denial of the opportunity of hearing to the applicant. It
is submitted by the learned counsel for the applicant that no
prior notice was given by the learned Magistrate to the
applicant and without giving opportunity of hearing to the
applicant, the report filed by the Police Station Officer u/s
169 of the Code of Criminal Procedure was accepted. In
order to buttress his submission, the learned counsel relied
upon the decision in the case of Bhagwant Singh Vs.
Commissioner of Police and another, AIR 1985 Supreme
Court 1285 and submitted that it was incumbent on the part
of the learned Magistrate to give prior notice and hearing.
5. The question, which is posed before this Court
for determination, is ' as to whether the first informant is
entitled to notice and whether he is required to be heard by
the learned Magistrate before he accepts the report submitted
by the Investigating Officer in respect of his action taken u/s
169 of the Code of Criminal Procedure ' ?
6. A similar question was before the Gujarat High
Court in Special Criminal Application No. 334 of 1993.
Natwarlal Ambalal Patel Vs. State of Gujarat.
I have the advantage of perusal of the said
Judgment of Gujarat High Court while deciding the present
Criminal Revision Application.
7. Section 169 of the Code of Criminal Procedure,
1973 reads as under, :
“ 169. Release of accused when
evidence insufficient If, upon an
investigation under this Chapter, it
appears to the officerincharge of the
Police Station that there is not
sufficient evidence or reasonable ground
of suspicion to justify the forwarding of
the accused to a Magistrate, such officer
shall, if such person is in custody,
release him on his executing a bond,
with or without sureties, as such officer
may direct, to appear, if and when so
required, before a Magistrate
empowered to take cognizance of the
offence on a Police Report, and to try
the accused or commit him for trial ”.
Perusal of the aforesaid Section would reveal
that the Investigating Officer is under obligation to release
such person, who is in custody on executing a bond with or
without sureties, if evidence is not sufficient and/or there are
no reasonable ground of suspicion to forward such person to
the Magistrate.
The plain reading of Section 169 of the Code of
Criminal Procedure, therefore, postulates that when the
Investigating Officer reports his action to the learned
Magistrate, it will not be a report, however it will be a report
of his action either by the Investigating Officer or by the
Officer incharge of the police station.
8. Section 173 of the Code of Criminal Procedure
states about the steps to be taken by the Investigating Officer
after the completion of the investigation. The Officer incharge
of the police station is required to forward the report
under said Section to the Magistrate empowered to take
cognizance of the offence in prescribed form.
Thus, Section 169 of the Code of Criminal
Procedure is silent in making report to the Magistrate,
however the Investigating Officer is under obligation to
submit report to the Magistrate u/s 173 of the Code of
Criminal Procedure. Thus, though Section 169 of the Code
of Criminal Procedure does not contemplate making a report,
it contemplates of obtaining a bond with or without sureties
from the accused to appear if and when so required before
the Magistrate empowered to take cognizance of the offence
on a police report and such report is contemplated u/s 173
of the Code of Criminal Procedure. Clause (d) and (f) of
Section 173 (2) (i) of the Code of Criminal Procedure reads
as under, :
“ (d) whether any offence appears as to
have been committed and, if so, by
whom.
(f) whether he has been released on
his bond and, if so, whether with or
without sureties ”.
9. Paragraph 10 of the Judgment in the case of
Natvarlal Ambalal Patel Vs. State of Gujarat & 11 of
Gujarat High Court in Special Criminal Application No.
334 of 1993 is as under, :
“ In fact if the provisions contained in
Section 173 of the Code of Criminal
Procedure are seen, they deal with a
situation where upon completion of
investigation, the officer incharge of the
police station is required to forward to a
Magistrate empowered to take cognizance
of the offence on a police report, a report
in the form prescribed by the State
Government indicating the names of
parties, nature of information, the names
of persons who appear to be acquainted
with the circumstances of the case,
whether any offence appears to have
committed and, if so, by whom, whether
he has been released on bond and, if so,
with or without sureties and whether he
has been forwarded in custody under
section 170 ”.
10. Their Lordship of Gujarat High Court also
noticed the Apex Court's decision in the case of Minu Kumari
Vs. State of Bihar, (2006) 4 SCC 359. The Apex Court
made following observations :
“ 12. 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. This Court in Bhagwant
Singh Vs. Commr. Of Police [)1985) 2
SCC 537] held 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 ”.
11. After considering the observation of the Apex
Court in the case of Minu Kumari cited supra, their Lordship
of Gujarat High Court has observed as under :
“13. In view in the case of Bhagwant
Singh (supra) is thus reaffirmed. The
Supreme Court has dealt with cases of
reports where there is no sufficiency of
evidence to justify forwarding of a case to
a Magistrate, which is termed variously
as referred charge or final report or
summary, i.e. a situation contemplated
under Section 169 of Cr.P.C. It is also
observed that Section 173 in terms does
not refer to any notice to be given to raise
any protest to the report submitted by the
police. The Court found that 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, which is a
situation contemplated under Section 169
of Cr.P.C., the informant would certainly
be prejudiced as the first information
report lodged by him becomes wholly or
partially ineffective ”.
12. I am in complete agreement with the
observations of their Lordship of Gujarat High Court.
Therefore, in my opinion also, it is mandatory that the
learned Magistrate is under obligation to hear first informant
before accepting the discharge as submitted by the
Investigating Officer u/s 169 of the Code of Criminal
Procedure.
13. In that view of the matter, the order passed by
the learned Judicial Magistrate First Class, Kandhar, district
Nanded dated 24/06/2002 in F.I.R. No. 159/2000 is hereby
set aside. The matter is remanded to the learned Magistrate.
The learned Magistrate is directed to take decision on the
report of the Investigating Officer afresh after giving notice
and hearing to the first informant.
14. Rule is made absolute.
observations of their Lordship of Gujarat High Court.
Therefore, in my opinion also, it is mandatory that the
learned Magistrate is under obligation to hear first informant
before accepting the discharge as submitted by the
Investigating Officer u/s 169 of the Code of Criminal
Procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 205 OF 2002
Maroti S/o Kaluba More
V E R S U S
The State of Maharashtra
CORAM : V.M.DESHPANDE, J.
DATE OF JUDGMENT : 4th FEBRUARY, 2015
Citation;2016 ALLMR(CRI)960
1. Rule. Rule is made returnable forthwith. By
the consent of the learned counsel for the Applicant, and the
learned A.P.P. for respondent Nos. 1 to 3 – State, the present
Criminal Revision Application is taken up for final hearing.
2. Heard Mr. Sk.S.A.R. Ahmed holding for Mr.
A.S.Golegaonkar, the learned counsel for the applicant and
Mr. V.P.Kadam, the learned A.P.P. for respondent Nos. 1 to 3
– State.
3. The applicant/original first informant questions
the correctness and propriety of the Order dated 24/06/2002
passed by the learned Judicial Magistrate First Class,
Kandhar, district Nanded in First Information Report
[hereinafter referred as 'F.I.R.' for brevity] bearing No.
159/2000 discharging the accused persons, who were named
in the said F.I.R.
4. The principal challenge against the said order is
the denial of the opportunity of hearing to the applicant. It
is submitted by the learned counsel for the applicant that no
prior notice was given by the learned Magistrate to the
applicant and without giving opportunity of hearing to the
applicant, the report filed by the Police Station Officer u/s
169 of the Code of Criminal Procedure was accepted. In
order to buttress his submission, the learned counsel relied
upon the decision in the case of Bhagwant Singh Vs.
Commissioner of Police and another, AIR 1985 Supreme
Court 1285 and submitted that it was incumbent on the part
of the learned Magistrate to give prior notice and hearing.
5. The question, which is posed before this Court
for determination, is ' as to whether the first informant is
entitled to notice and whether he is required to be heard by
the learned Magistrate before he accepts the report submitted
by the Investigating Officer in respect of his action taken u/s
169 of the Code of Criminal Procedure ' ?
6. A similar question was before the Gujarat High
Court in Special Criminal Application No. 334 of 1993.
Natwarlal Ambalal Patel Vs. State of Gujarat.
I have the advantage of perusal of the said
Judgment of Gujarat High Court while deciding the present
Criminal Revision Application.
7. Section 169 of the Code of Criminal Procedure,
1973 reads as under, :
“ 169. Release of accused when
evidence insufficient If, upon an
investigation under this Chapter, it
appears to the officerincharge of the
Police Station that there is not
sufficient evidence or reasonable ground
of suspicion to justify the forwarding of
the accused to a Magistrate, such officer
shall, if such person is in custody,
release him on his executing a bond,
with or without sureties, as such officer
may direct, to appear, if and when so
required, before a Magistrate
empowered to take cognizance of the
offence on a Police Report, and to try
the accused or commit him for trial ”.
Perusal of the aforesaid Section would reveal
that the Investigating Officer is under obligation to release
such person, who is in custody on executing a bond with or
without sureties, if evidence is not sufficient and/or there are
no reasonable ground of suspicion to forward such person to
the Magistrate.
The plain reading of Section 169 of the Code of
Criminal Procedure, therefore, postulates that when the
Investigating Officer reports his action to the learned
Magistrate, it will not be a report, however it will be a report
of his action either by the Investigating Officer or by the
Officer incharge of the police station.
8. Section 173 of the Code of Criminal Procedure
states about the steps to be taken by the Investigating Officer
after the completion of the investigation. The Officer incharge
of the police station is required to forward the report
under said Section to the Magistrate empowered to take
cognizance of the offence in prescribed form.
Thus, Section 169 of the Code of Criminal
Procedure is silent in making report to the Magistrate,
however the Investigating Officer is under obligation to
submit report to the Magistrate u/s 173 of the Code of
Criminal Procedure. Thus, though Section 169 of the Code
of Criminal Procedure does not contemplate making a report,
it contemplates of obtaining a bond with or without sureties
from the accused to appear if and when so required before
the Magistrate empowered to take cognizance of the offence
on a police report and such report is contemplated u/s 173
of the Code of Criminal Procedure. Clause (d) and (f) of
Section 173 (2) (i) of the Code of Criminal Procedure reads
as under, :
“ (d) whether any offence appears as to
have been committed and, if so, by
whom.
(f) whether he has been released on
his bond and, if so, whether with or
without sureties ”.
9. Paragraph 10 of the Judgment in the case of
Natvarlal Ambalal Patel Vs. State of Gujarat & 11 of
Gujarat High Court in Special Criminal Application No.
334 of 1993 is as under, :
“ In fact if the provisions contained in
Section 173 of the Code of Criminal
Procedure are seen, they deal with a
situation where upon completion of
investigation, the officer incharge of the
police station is required to forward to a
Magistrate empowered to take cognizance
of the offence on a police report, a report
in the form prescribed by the State
Government indicating the names of
parties, nature of information, the names
of persons who appear to be acquainted
with the circumstances of the case,
whether any offence appears to have
committed and, if so, by whom, whether
he has been released on bond and, if so,
with or without sureties and whether he
has been forwarded in custody under
section 170 ”.
10. Their Lordship of Gujarat High Court also
noticed the Apex Court's decision in the case of Minu Kumari
Vs. State of Bihar, (2006) 4 SCC 359. The Apex Court
made following observations :
“ 12. 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. This Court in Bhagwant
Singh Vs. Commr. Of Police [)1985) 2
SCC 537] held 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 ”.
11. After considering the observation of the Apex
Court in the case of Minu Kumari cited supra, their Lordship
of Gujarat High Court has observed as under :
“13. In view in the case of Bhagwant
Singh (supra) is thus reaffirmed. The
Supreme Court has dealt with cases of
reports where there is no sufficiency of
evidence to justify forwarding of a case to
a Magistrate, which is termed variously
as referred charge or final report or
summary, i.e. a situation contemplated
under Section 169 of Cr.P.C. It is also
observed that Section 173 in terms does
not refer to any notice to be given to raise
any protest to the report submitted by the
police. The Court found that 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, which is a
situation contemplated under Section 169
of Cr.P.C., the informant would certainly
be prejudiced as the first information
report lodged by him becomes wholly or
partially ineffective ”.
12. I am in complete agreement with the
observations of their Lordship of Gujarat High Court.
Therefore, in my opinion also, it is mandatory that the
learned Magistrate is under obligation to hear first informant
before accepting the discharge as submitted by the
Investigating Officer u/s 169 of the Code of Criminal
Procedure.
13. In that view of the matter, the order passed by
the learned Judicial Magistrate First Class, Kandhar, district
Nanded dated 24/06/2002 in F.I.R. No. 159/2000 is hereby
set aside. The matter is remanded to the learned Magistrate.
The learned Magistrate is directed to take decision on the
report of the Investigating Officer afresh after giving notice
and hearing to the first informant.
14. Rule is made absolute.
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