Kashmiri Lal Khera vs State of Haryana

Swatanter Kumar, J.—Heard the learned counsel for the parties.

This is a petition u/s 482 of Criminal Procedure Code for quashing the Calendra No. 271/1 of 2-10-1993, u/s 182 of the Indian Penal Code (Annexure P3) and order of the learned Magistrate dated 7-9-1993 (but incorrectly stated in the petition as order dated 14-9-1993). The case of the petitioner is that he is practising Advocate and owns agricultural land at Kalanaur, District Rohtak and made a complaint against Tek Chand, Rajinder Kumar, Joginder Kumar and Ramesh Kumar. On the basis of this complaint, an F.I.R. was registered bearing No. 210 dated 10-12-1992, under Sections 447/506 of the Indian Penal Code. However, after the investigation cancellation report was submitted by the police and the learned Magistrate vide its order dated 7-9-1993 accepted the cancellation report and closed the case.

The short grievance of the petitioner in this petition is that under the provisions of Sub-section (2) of Section 173, Cr. P. C. the petitioner was entitled to be heard before the report was accepted by the concerned Court. The grievance of the petitioner is justified inasmuch as the provisions of Section 173 of Cr. P. C. indicate the intention of the Legislation to provide an opportunity to be heard to a complainant before the case, is cancelled or closed. This right is a kind of protection which a safeguard provided to the complainant against wrongful report made by the police/investigating authority to the Magistrate. Learned counsel for the petitioner placed reliance on the case of Baggu alias Sunehra v. Stale of Haryana 1986 (2) CLR 263. Following the principle laid down by the Supreme Court in case of Bhagwant Singh Vs. Commissioner of Police and Another, , this Court held as under:-

"In this case the Magistrate decides not to take cognizance of the offence and to drop the proceedings and takes the view that there is no sufficient ground to proceed against some of the persons mentioned in the First Information Report, he must give notice to the Informant and provide him an opportunity to be heard at the time of the consideration of the report. The purpose is that the informant may make his submission to persuade the Magistrate to lake cognizance of the offence and issue process."

In view of the above position of law, the order of the learned Magistrate dated 7-9-1993 is hereby quashed and the learned Magistrate is directed to give an opportunity to the complainant/petitioner of being heard before passing any further orders. The petitioner is directed to appear before the learned Magistrate for this purpose on 11-9-1995 when the learned Magistrate shall after hearing the petitioner proceed with the case in accordance with law.

It is also directed that the proceedings P-3 initialed against the petitioner in Calendara (sic) No. 271/1 of 2-10-1993, u/s 182 of the Indian Penal Code shall remain stayed till passing of an appropriate order by the learned Magistrate in the above case.

With these observations, the petition is allowed to the extent mentioned above.