Karan Singh and Others vs State of U.P. and Others

J.C. Gupta, J.—Heard the applicants'' counsel and the learned A.G.A.

By means of this application, the applicants have prayed for the quashing of the order of the Magistrate dated 28.1.92 by which he has rejected the Final Report submitted by the police and has issued process against the applicants.

Learned Counsel for the applicants firstly argued before me that the impugned order of summoning the applicants as accused is bad in law inasmuch as it cannot be inferred from the said order whether the Magistrate has taken cognizance under the provisions of Section 190(1)(a) or Section 190(1)(b) of the Code of Criminal Procedure. According to him, after the filing of Final Report by the police, if the complainant moves a Protest Petition and also files some affidavits or other material, the only course open for the Magistrate is to take cognizance under the provisions of Section 190(1)(b) after following the procedure provided in respect of complaint cases and since such a procedure has not been followed in the present case, the impugned order is liable to be quashed. He placed reliance upon the decision in Bhagwan Das v. State 1989 A Cr R 1.

In the aforesaid decision, Hon''ble Palok Basu, J. went into the question, "will it be legal, and if yes, then what will be the procedure to be followed in cases where after investigating the First Information Report, Investigating Officer files a Final Report and the informant challenges the said Final Report by filing protest Petition and affidavits before the Magistrate, who then takes the cognizance and summons the accused?" It has been held in the said decision that after the judgment of the Hon''ble Supreme Court in Bhagwant Singh v. State 1986 AWC 26, it is incumbent upon the Magistrate to issue notice to the informant before accepting the Final Report forwarded by the Investigating Officer. The learned Single Judge in the case of Bhagwan Das (supra) has further held that in pursuance of the notice issued to the complainant, the Magistrate is not to hear the informant orally only and if the Magistrate permits the informant to produce application, affidavit and other material, he is not bound to follow the procedure provided for the complaint cases. The learned Judge observed:

The Hon''ble Supreme Court never appears to have desired that in such a case, an informant should be asked to shoulder the burden of the complainant even though the Final Report deserves rejection.

It has also been held in the aforesaid decision of Bhagwan Das that when the Magistrate takes cognizance on a complaint and he wishes to proceed with it, he has to record statement of the complainant on oath and so long as this is not done, the Magistrate will be deemed to be considering only the police report.

In the case in hand, the complainant of course presented a protest petition and filed some affidavits before the Magistrate but it further appears that the Magistrate did not think It necessary to record the statement of the first informant u/s 200, Code of Criminal Procedure. By filing Protest Petition, the complainant simply invited the attention of the Magistrate that he was not agreeing with the Final Report submitted by the police and he was submitting his objections in the form of the protest petition. Undisputedly, the Magistrate has not recorded the statement of the complainant u/s 200, Code of Criminal Procedure and has not followed the procedure provided for complaint cases, it would thus be deemed that the Magistrate was considering only the police report while taking cognizance of the case in exercise of powers u/s 190(1)(b) of the Code.

It is now well-settled law that when a Final Report is submitted by the police after investigation, three courses are open to the Magistrate:

(1) He may accept the Final Report and drop the proceedings, after hearing the complainant/First informant.

(2) He may disagree with the conclusion arrived at by the police officer and straightaway take cognizance in exercise of powers u/s 190(1)(b) of the Code.

of Code of Criminal Procedure.

(3) He may order further investigation.

In the present case, the Magistrate appears to have acted under Clause (2) aforesaid and, therefore, the impugned order would not be bad in law on the ground that the Magistrate has not followed the procedure provided for complaint cases.

Relying upon the decision of a learned Single Judge of this Court in the case of Rajendra Kumar Agrawal v. State of U.P. 1994 (31) SCC 341 , the learned Counsel for the applicant contended that the impugned order is invalid as before issuing process against the applicants, no opportunity of hearing was given to them. The facts of the said case were entirely different from the facts of the present case. In the case of Rqjendra Kumar Agrawal (supra), no order of summoning was passed but the Magistrate had ordered re-investigation. On the other hand, in the present case processes have been issued against the applicants and they have still with them a remedy to have their say before the Magistrate by putting their appearance in pursuance of the impugned order. They can plead and place facts before the Magistrate that there is no sufficient ground against them to proceed further. In the decision in Pratap and Others Vs. State of Uttar Pradesh and Others, , the same question arose for consideration and Hon''ble G.P. Mathur, J. gave a detailed judgment and held that the accused has got no right to be heard at a stage prior to issue of process against him. It was observed:

Neither under the Code of Criminal Procedure nor under any principle of natural justice the Magistrate is required to issue notice or afford an opportunity of hearing to an accused in a case where the police has submitted Final Report but on consideration of the material on record the Magistrate take cognizance of the offence in exercise of his powers u/s 190(1)(b) of the Code.

and directs issue of process to the accused. The Code does not contemplate holding of two trials one before the issue of process and the other after the process is issued.

In Paragraph 3, the learned Judge further observed:

Therefore, before issuing summons or warrant against the accused, the Magistrate taking cognizance of an offence, has to form an opinion on the limited question as to whether there is sufficient ground for proceeding. When process is issued by a Magistrate the person concerned is not being condemned in any manner. The order issuing process does not adversely effect the accused. He is neither being convicted nor sentenced. He is merely being asked to face trial in a court of law. It cannot be said that merely because process has been issued against a person, a decision adversely affecting him has been taken. It cannot, therefore, be said that any principle of natural justice is infringed, if the Magistrate issues process against a person without first affording him an opportunity of hearing.

It is further, observed:

The Legislature has taken extreme care and has made elaborate procedure to give full opportunity to an accused once the trial beings in the court of law. Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

The Apex Court in the case of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, , has also held that an accused has no locus standi till process is issued.

Where a Final Report is submitted by the police, the Magistrate can straightaway take cognizance disagreeing with the conclusion arrived at by the Investigating Officer, even without issuing notice to the informant. The necessity of issuing notice arises only where the Magistrate does not take cognizance after the submission of Final Report. The rationale behind this appears to be that where a Final Report is submitted, that is the end of the matter as far as the first informant is concerned and since he is the person who had set the law into motion, he is entitled to a hearing before the matter is finally closed. The same analogy cannot be applied to in respect of an accused for the reason that he gets an opportunity after the process is issued against him and it cannot be said that merely because a process has been issued against him, a decision adversely affecting him has been taken. Such an order does not adversely affect the rights of the accused, since he has got ample remedy with him to have his say before the Magistrate at appropriate stage.

In my opinion, the view taken by Hon''ble G.P. Mathur, J. in the aforesaid case of Pratap is the correct view of law. Concurring with that view, it must be held that neither under the Code of Criminal Procedure nor under any principle of natural justice, the Magistrate is required to issue notice or afford an opportunity of hearing to an accused in a case where the police has submitted Final Report but on consideration of the material on record, the learned Magistrate takes cognizance of the offence in exercise of his powers u/s 190(1)(b) of the Code.

and directs issue of process to the accused.

For the above reasons, I do not find any force in the aforesaid submission of the learned Counsel.

This application has no merits and is accordingly rejected.