Geharilal vs State of Rajasthan

H.R. Panwar, J.—Learned Public Prosecutor is directed to accept notice for final disposal. He accepts the notice.

With the consent of learned Counsel for the parties, the instant revision petition is finally heard and decided at the admission stage.

By the instant criminal revision petition u/s 397/401, Cr.P.C. the petitioner-complainant has challenged the order dated 29.11.2004 passed by Additional Chief Judicial Magistrate, Nathdwara (for short ''the Trial Court'' hereinafter) arising out of FIR No. 179/2002 P.S. Nathdwara, whereby the Trial Court dismissed the application filed by the petitioner seeking recalling of the order dated 3.1.2004 whereby the Trial Court accepted the negative final report submitted by the police without proper service of notice to the petitioner complainant.

I have heard learned Counsel for the parties. Perused the order impugned dated 29.11.2004 as also order dated 3.1.2004 by which the Trial Court accepted the negative final report submitted by the police. I have also carefully gone through the record of the Trial Court.

A case was instituted on a report lodged by the petitioner-complainant vide Crime Report No. 179/2002 at P.S. Nathdwara for the offences under Sections 498A and 304B, IPC. After investigation police filed a negative final report. The notice of filing of negative final report was issued to the petitioner complainant on 13.12.2003 and as per the notice on record, the date for appearance of the complainant to show cause as to why the negative final report be not accepted was fixed on 8.1.2004. The notice was served though from the perusal of the notice it nowhere appears when actually the notice was served. The order sheet dated 13.12.2003 shows that while issuing the notice to the petitioner-complainant the matter was posted on 8.1.2004 to see the service of notice. However, subsequently, it appears that with different ink, the date has been interpolated to be 3.1.2004 in place of 8.1.2004. This alteration in the date has not been either signed or initialed by the Presiding Officer of the Court. The notice was also issued to the present petitioner for his appearance on 8.1.2004. After the notice having been served on the petitioner, the date 8.1.2004 has been altered first to 4.1.2004 and thereafter to 3.1.2004, Obviously, there is interpolation in the date. At any rate, the complainant was to appear on 8.1.2004 and before he appeared on 8.1.2004, on 3.1.2004, the negative final report was accepted without hearing the complainant. Keeping in view the facts and circumstances of the case and the fact that on the relevant date i.e. 3.1.2004 when the Trial Court accepted the negative final report, the petitioner was not present in the Court and rightly so as the notice served on him was for his appearance on 8.1.2004 and, therefore, the order of the Trial Court accepting the negative final report cannot sustain and deserves to be set aside. Consequently, the order dated 29.11.2004 also deserves to be set aside.

In the result, the revision petition is allowed. The orders impugned dated 29.11.2004 and dated 3.1.2004 are hereby set aside. The matter is remanded to the Trial Court to decide the matter afresh after hearing the petitioner. If the petitioner wishes to file any protest petition or lead any evidence in protest to the negative final report, it would be open for him to do so. The petitioner shall appear before the Trial Court on 11.4.2005. The record of the Trial Court be returned forthwith.