Mohmed Abdul Razzaq Siddiqui vs State of Maharashtra and others

I.G. Shah, J.—The Petitioner, who is now a retired Government Auditor, has preferred this Writ Petition seeking the quashing of the orders passed by the Judicial Magistrate. First Class, Sillod, granting ''B'' summary in Crime Number $5 of 1985, which, it appears, was registered on the basis of the Audit Report filed by the present Petitioner while he was in the Government service.

There is no dispute that the present Petitioner had audited the accounts of Shetkari Sahakari Cotton Ginning and Pressing Society, Wadod Bazar. Taluka Sillod. of which, the present Respondent Number 2 was the Chairman and Respondent Number 3 was the Manager. After completion of the audit, he submitted his report. On the basis of the said report, a First Information Report was also lodged before the Police Sub-Inspector, Wadod Bazar, u/s 409 read with 34, Indian Penal Code.

The Police Sub-Inspector, it appears, investigated the crime and after consulting the Senior Police Prosecutor, concluded that the offence was not made out and it was a false complaint. Accordingly, on 14th May 1987. he submitted the report u/s 173. It appears that the said report was accepted by the Judicial Magistrate, First Class, on 19th June 1987 and ''B'' summary was granted. The present Petitioner is aggrieved by the said order of grant of ''B'' summary. Shri Gurusahani, the learned counsel appearing for the present Petitioner strenuously contended that the learned Magistrate ought to have given an opportunity of being heard to the present Petitioner before passing the said order.

On behalf of Respondents Numbers 2 and 3, it was tried to be contended that the investigating officer has rightly come to the conclusion that no offence was committed by the present Respondents Numbers 2 and 3, and therefore, was also right in submitting the report, as has been done by him. Mr. Talekar for the Respondents Numbers 2 and 3 also contended that if the investigation papers clearly show even now that the allegations against the present Respondents Numbers 2 and 3 made by the Petitioner in the complaint are false, it is not necessary to consider as to whether the grant of ''B'' summary was proper or not. He tried to show certain documents in support of his contentions, but he has no answer to the contention that the petitioner atleast must be given an opportunity to be heard before coming to the conclusion that the complaint given by him is a false complaint.

There is a decision of the Supreme Court, reported in Bhagwant Singh Vs. Commissioner of Police and Another, wherein, it is held that a person lodging a First Information Report is entitled to hearing when on the basis of police report Magistrate prefers to drop the proceedings instead of taking cognizance of offence. Their Lordships have held in the said case that where the Magistrate to whom a report is forwarded u/s 173(2)(1) decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is. no sufficient ground for the 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.

In view of the said Ruling, it is not necessary to go into the question as to whether in fact the allegations made by the complainant actually are justified or not. An opportunity being not given to the Petitioner itself is sufficient to hold that the order of ''B'' summary passed by the learned Magistrate is not in accordance with law. Hence the order:

ORDER

This Writ Petition is allowed.

The order granting ''B'' summary dated 19th June 1987 in Crime Number 85 of 1985 is set aside. The learned Magistrate is directed to give an opportunity to the present Petitioner to substantiate his contentions in the First Information Report lodged by him. The learned Magistrate would also be at liberty to order further investigation if he finds it necessary. The Petitioner shall appear before the learned Magistrate on 4th October, 1989.