Gajendra Kumar Agarwal vs State of U.P. and Others

M. Katju, J.—This is an application u/s 482, Code of Criminal Procedure praying for quashing the impugned order of the Chief Judicial Magistrate, Mathura dated 26.4.1990, true copy of which is Annexure 6 to the writ petition and also Annexure 1 to the supplementary affidavit.

I have heard Sri Tejpal, learned Counsel for applicant and learned Government counsel for the Respondents. Since there is only a legal question involved in this case, I am disposing of this petition finally. An F.I.R. was filed against the applicant under Sections 307 and 506, I.P.C. at P.S. Kotwali, district Mathura on 5.8.1989, a true copy of which is Annexure 4 to the writ petition. In pursuance to this F.I.R. the police made an investigation and submitted a final report dated 30.12.1989, a true copy of which is Annexure 5 to the writ petition. Against this final report a protest petition was filed by Shyam Singh Respondent No. 2 and on this protest petition the impugned order dated 26.4.1990 has been passed. In this order dated 26.4.1990 the learned Chief Judicial Magistrate, Mathura has observed: "the investigation is defective and the conclusion derived by the I.O. is not worth accepting. FR as submitted is not accepted and as per order on the back of FR itself. The FR be sent back to SHO Kotwali with the direction that matter be re-investigated and report be submitted according to law.

The learned Counsel for the applicant has submitted that this order dated 26.4.1990 was passed without giving opportunity of hearing to the applicant. His submission is that once there is a final report then before the Magistrate rejects the same be must hear the accused. In this connection it may be mentioned that this Court in Bhagwan Das v. State 1988 ACC 571 . following the decision of the Supreme Court in Bhagwant Singh Vs. Commissioner of Police and Another, has held that before accepting the final report notice must be given to the first informant or a person aggrieved and such person must be heard. In my opinion the ratio of the said decision will be applicable to a converse case also like the present one. In the present case what has happened is that the applicant is accused in a case in which a final report has been submitted. His grievance is that before rejecting the final report he should have been heard. It is true that there is no statutory provision that before rejecting the final report the Magistrate must hear the accused. But there is also no statutory requirement that before accepting the final report the complainant should be heard. If it is held that before accepting the final report the complainant must be head, then it cannot be understood by what logic the accused should be denied a right of hearing before the final report is rejected. The same principle should apply to complainant and accused alike. The Supreme Court in recent years has been steadily widening the scope of Articles 14 and 21 of the Constitution. In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , (which is a 7 Judge Constitution bench decision) the Supreme Court has emphasised that even where there is no specific statutory requirement the principles of natural justice may apply. It has been also held therein that the procedure for depriving a man of his life and liberty must be fair, reasonable and just. Similarly in Bhachan Singh v. State of Punjab AIR 1982 SC 1825 , it was held by the Supreme Court that "every facet of the law which deprives a person of life or personal liberty would therefore have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21" (vide para 16). In my opinion once a final report is submitted then before rejecting the same the accused should be heard because it may be that he may be able to persuade the Magistrate that the final report was justified and no case is made out against him. It will be unfair to hear only the person filing the protest petition but not the accused. Where a protest petition is filed against a final report in my opinion both the parties should be heard as that procedure would be fair to the accused and complainant and hence in accordance with the recent trend of the decisions of the Supreme Court (from Maneka Gandhi''s case onwards) wherein the scope of Articles 14 and 21 of the Constitution has been greatly expanded, and it has been laid down that the procedure should be just fair and reasonable. In my opinion once a final report is filed it is only fair and reasonable that the accused should be heard before rejecting the final report and taking cognizance. I do not mean to say that cognizance cannot be taken on the basis of the final report. The Supreme Court in India Carat Pvt. Ltd. Vs. State of Karnataka and Another, , has held that this can be done. But in my opinion fairness demands that this should be done only after hearing the accused, otherwise the accused may be put to unnecessary harassment. I have held in Ganesh Chandra Bhatt v. D.M. Almora 1993 ACC 204 that after the decision in Maneka Gandhi''s case (supra) the American concept of substantive due process must be deemed to have become part of the law of this country. The decision in Ganesh Chandra Bhatt''s case (supra) has been affirmed by a division bench of this Court in Devendra Pratap Singh v. D.M., [Writ Petition No. 29963 of 1993 decided on 20.10.93]. My attention has been invited to the decision of the Supreme Court in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, where it has been observed "it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued." In my opinion this decision is clearly distinguishable. In this decision the facts were that after a final report was filed by the police a criminal complaint was lodged before the Magistrate who took cognizance after following the procedure of Sections 200 and 202, Code of Criminal Procedure. This was not a case where the Magistrate took cognizance on a final report of protest petition treating it as a police case u/s 190(1)(b). The distinction between a police case and a complaint case is well known. In a complaint case it is not necessary to issue notice to the accused or hear him before taking cognizance, as held in Chandra Deo Singh''s case (supra). However, in my opinion it is necessary to issue notice to the accused and to hear him if the Magistrate proposes to take cognizance u/s 190(1)(b) despite the final report.

In my opinion in view of the vast expansion of the scope of Articles 14 and 21 of the Constitution by the Supreme Court by a series of momentous decisions beginning from Maneka Gandhi''s case (supra) the time has now come when the provisions in the Code of Criminal Procedure., the I.P.C and other criminal statutes must be re-examined and re-interpreted in the light of these decisions. The Constitution is the supreme law of the land, and the provisions in the criminal statutes must be read and interpreted not in isolation but in the light of the Constitutional provisions as interpreted by the Supreme Court.

The view I am taking will make the relevant provisions in the Code of Criminal Procedure, in accordance with Articles 14 and 21 of the Constitution, as it will make the procedure fair and just.

In the present case it is obvious that only the protest Petitioner was heard before passing the order dated 26.4.1990 but the applicant was not heard. In the circumstances I set aside the impugned order dated 26.4.1990 but I direct that the Magistrate can pass a fresh order after hearing the applicant also on the point whether the final report should be accepted or not.

Accordingly, this petition is allowed. The impugned order dated 26.4.1990 is hereby quashed. No order as costs.