Ashok Kumar & Ors vs State Of H.P

Rakesh Kainthla, J

The present petition has been filed against the order dated 27.01.2022 passed by the learned Judicial Magistrate First Class, Amb, District Una, H.P. (learned Trial Court) vide which the closure report submitted by the police was accepted. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present petition are that the informant, Sangeeta Devi, reached the main road near Ambedkar Bhawan and found a truck bearing registration No. HP-19C-8398 parked on the road 07.01.2019. A Scooty bearing registration No. HP-19A-0150 came at a high speed and hit the rear side of the Truck at about 6:15 PM. The occupants of the Scooty fell. They were taken to the hospital, and an intimation was given to the Police. The name of the Scooty driver was found to be Jaswinder Singh, and the name of the pillion rider was found to be Asha Kumari. The accident had occurred due to the high speed of the Scooty and the negligence of Jaswinder Singh. The police registered the FIR and investigated the matter. The police found that the truck was parked towards the left side of the road on the unmettalled portion. Its parking light was also switched on. The informant's statement was recorded to this effect. Jaswinder Singh succumbed to his injuries; hence, the closure report was prepared and submitted to the Court.

Learned Trial Court issued the notice to the informant. The informant did not appear despite service, and the learned Trial Court accepted the closure report after going through the record.

Being aggrieved by the order passed by the learned Trial Court, the petitioners (relatives of Jaswinder Singh and Asha Kumari) have filed the present petition, asserting that no intimation was given to them before accepting the closure report. The truck was parked on the road without any parking lights. The incident occurred on 07.01.2019 at about 6:15 PM. There was no visibility at that time, and it was difficult to see the parked truck in the absence of the parking light. The informant was a stranger and had no personal relation with the deceased. The learned Trial Court summoned the informant. The informant chose not to appear before the Court. The petitioners were adversely affected by the acceptance of the closure report but they were not heard. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

I have heard Mr Gurinder Singh Parmar, learned counsel for the petitioners and Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State.

Mr Gurinder Singh Parmar, learned counsel for the petitioner, submitted that the learned Trial Court had issued the notice to the informant, who was a stranger to the present case. The petitioners, being the relatives of the deceased, were entitled to a notice and the acceptance of the closure report without hearing them is violative of a principle of natural justice. He relied upon the judgment of Hon'ble Supreme Court in Jagjeet Singh and others versus Ashish Mishra @ Monu and another (2022) 9 SCC 321 in support of his submissions.

Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that only the informant is entitled to a notice as per the judgment of the Hon'ble Supreme Court. Learned Trial Court was not bound to issue any notice to the petitioners. Therefore, he prayed that the present petition be dismissed.

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

The requirement of issuing the notice to the informant was laid down by Hon'ble Supreme Court for the first time in Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 and it was held that when 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 may persuade the Magistrate to issue the process. It was observed:

"4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may 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 do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub¬section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognisance of the offence and to issue process, the informant is not prejudicially affected, nor is the injured, nor, in case of death, any relative of the deceased aggrieved, because cognisance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed.

But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report, the informant would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognised by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. 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 submissions 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. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the first information report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.

It was further held in Bhagwant Singh (supra), that there is no provision which obliges the Magistrate to issue notice to the injured person or the relatives of the deceased. However, if they somehow come to know about the proceedings pending before the learned Magistrate, the Magistrate is bound to hear them. It was observed:

"5. The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Code of Criminal Procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the first information report. But even if such a person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate, and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report."

Therefore, in view of the binding precedent of the Hon'ble Supreme Court of India, the relatives of the deceased are not entitled to any notice, but they can participate if they come to know about the proceedings pending before the learned Magistrate. Hence, the grievance of the petitioners that no notice was issued to them, which violated the principle of natural justice, cannot be accepted.

In Jagjeet Singh (supra), the Hon'ble Supreme Court held that the victim has a right to be heard while deciding the bail application. This judgment deals with the right of the victim at the stage of adjudication of the bail petition, whereas Bhagwant Singh (supra) specifically deals with the acceptance of the final report submitted by the learned Magistrate. Since the matter is covered by the judgment of the Hon'ble Supreme Court in Bhagwant Singh (supra), it is not possible to hold that the victim or the relatives of the deceased are entitled to a hearing. Therefore, no advantage can be derived from the cited judgment.

No other point was urged.

Therefore, the learned Trial Court had rightly not issued any notice to the petitioners, and there is no infirmity in the order passed by the learned Trial Court. Hence, the present petition fails, and it is dismissed.

The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.