Ohiwot Khonglah vs State of Meghalaya and Others

N. Surjamani Singh, J.—In this writ petition, the Petitioner made a prayer for calling the related records of the Jowai P.S. Case No. 123/1992 and also S/R Case No. 61/1992 or the original case diaries of Jowai PS Case No. 123/92, coupled with a prayer for a direction to the Respondents for re-opening of the S/R Case No. 61/92 of Jowai PS Case No. 123/92 and for passing appropriate order or directions which this Court deems fit and proper in the matter.

Supporting the case of the Petitioner, Mr. S.P. Mahanta learned counsel, contended that the writ Petitioner has lodged an ejahar/FIR dated 29.10.92 before the officer-in-charge, Jowai Police Station, Jowai, against Shri Davidson Diengdoh and his father Shri (Dr) DR Rymbui for taking legal action for committing an offence punishable u/s 420 IPC and seizure of the truck bearing registration No. ML.-04-2412. On receipt of the said FIR, a case being Jowai P.S. Case No. 123/92 u/s 420 IPC was registered and the investigating officer examined the Complainant/Petitioner and the witnesses, but lastly, the said PS Case No. 123/97 was returned in F.R. No. 20 of 1993 dated 27.8.93 u/s 420 IPC as against Shri Davidson Diengdoh in GR Case No. 200/92 and, that the said F.R. was accepted by the learned trial court namely, Shri I. Jyrwa, First Class Magistrate, Jowai Court, by his order dated 30.8.93 as in Annexure 3 to the writ petition.

The Petitioner also contended, that he filed Money Suit No. 32/93 in the village Court of Jowai against Dr DR Rymbui but the said suit was dismissed on 13.7.93 on the ground, that defendent, Dr. D.R. Rymbui was not a necessary party in the suit. Thereafter, the Petitioner filed representation dated 23.8.94 addressed to the Superintendent of Police, Jaintia Hills District, Jowai, for prosecution of Dr DR Rymbui u/s 420/406 IPC and thereafter, the Superintendent of Police, Jaintia Hills District, Jowai, informed the writ Petitioner that the related S.R. Case No. 61/92 had been closed as the related F.R. No. 20/93 dated 27.8.94 u/s 420/406/506 IPC relates to breach of condition of contract which is non-cogninsable and for recovery as compensation is civil in nature and the offence u/s 506 IPC has insufficient evidence.

By another office letter dated 12.1.95, the concerned Superintendent of Police also informed the Petitioner that the subject matter has been closed from the end of the police and that it is now subjudice in die Court and no further action will be taken without specific orders from the competent Court. It is also the case of the writ Petitioner, that on his Motion, the learned Addl. Deputy Commissioner, Jaintia Hills, Jowai, by his order dated 29.4.97 passed in GR Case No 200/92 u/s 420 IPC held, that the Court has no reason to reopen the case and lastly, the Deputy Commissioner, Jaintia Hills, Jowai, informed and advised the writ Petitioner under his office letter dated 27.6.97 as in Annexure 8 to the writ petition, to submit a review petition in the Court of the Addl. Deputy Commissioner for reviewing the order dated 29.4.97. According to the Petitioner, though he filed application/petition for re-opening of the related case mentioned above under his related applications dated 8.8.97 and 3.3.98 as in Annexure 9 and 10 to the writ petition, no action whatsoever was taken by the Addl. Deputy Commissioner, Jowai.

It is also urged that, FIR dated 29.10.92 was lodged before the Jowai PS against Shri Davidson Diengdoh and Dr D.R. Rymbui for their criminal act of cheating. While Jowai PS case No 123/92 u/s 420 IPC was registered against Davidson Diengdoh, the Jaintia Hills District S.R. Case No. 61/92 of Jowai PS case No. 123/92 was registered against Dr DR Rymbui and, thereafter, the said Jowai PS Case No. 123/92 was returned in F.R. and the said F.R. was accepted under the related order dated 30.8.93 and the accused Davidson Diengdoh has been discharged from the liability of the case. However, no report whatsoever had been forwarded to the trial court against Dr DR Rymbui in the said Jaintia Hills District S.R. Case No. 61/92 of Jowai PS Case No. 123/92.

At the hearing, Mr K S Kynjing learned Counsel appearing for the Respondents contended, that the said F.R. No. 20/92 was duly accepted by the court on 30.8.93 and such matter was ended and that there is no infirmity or illegality in the order of 30.8.93 accepting the said F.R. and discharging the accused Davidson Diengdoh.

On bare perusal of the related case records and the impugned order dated 30.8.93 passed by the First Class Magistrate, Jowai Court, and that of the order dated 29.4.97 passed by the learned Addl. Deputy Commissioner, Jaintia Hills District. Jowai, in GR Case No. 200/92 u/s 420 IPC, it has been revealed that the learned trial court did not give notice and hear the informant before accepting the said FR, in other words, before deciding what action the learned Magistrate should take on the report. At this stage, I hereby recall a decision of the Apex Court rendered in Bhagwant Singh Vs. Commissioner of Police and Another, wherein the Apex Court held thus:

Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2) (ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2) (i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2) (i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or take the view that there is no sufficient ground for 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....

...we cannot spell out either from the provisions of the Code of Criminal Procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from me Magistrate, has locus to appear before the Magistrate, at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him.

In a case between Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, the Supreme Court held thus:

Since at the time of taking cognizance the Court has to exercise its judicial discretion it necessarily follows that if in a given case-as the present one-the complainant, as the person aggrieved raises objection to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the court that a case for taking cognizance was made out, but the Court overrules such objections, it is just and disirable that the reasons therefore be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the court needs no emphasis. Reasons introduce clarity and minimise chances of arbitrariness. That necessarily means that recording of reasons will not be necessary when the court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant it has got to be set aside and we do hereby set it aside.

A reference can also made to a decision of this Court on these legal aspects rendered in Ratanlal Nath, v. State of Tripura and Ors. reported in (1996 (3) GLT 418); (1997) 1 GLJ 124. In my considered view, both the courts below namely, First Class Magistrate, Jowai Court and the Addl. Deputy Commissioner, Jaintia Hills District, Jowai, had completely lost sight of these important provisions of law while passing the related impugned orders of 30.8.93 and 29.4.97 respectively, and as such, these related two orders are not tenable in the eye of law, and accordingly, these are quashed.

Applying all these established principles of law laid down by the Apex Court mentioned above and also, considering the existing facts and circumstances of the case, I direct the First Class Magistrate, Jowai Court, to hear the parties including the present writ Petitioner afresh on the question of acceptance or non-acceptance of the said police Report/F.R. being No. 20/93 in connection with Jowai PS case No. 123/92 u/s 420 IPC and GR Case No. 200/92 by affording reasonable opportunity of being heard to them and pass a reasoned order, in accordance with law after taking into consideration of all the statements of the witnesses recorded u/s 161 Code of Criminal Procedure relevant case Diaries and other available materials on record. It is further made clear, that, as this case is an old case of the year 1992, the learned Magistrate is directed to dispose of the matter as early as possible.

For the reasons, observations and directions made above, this writ petition is disposed of, but, no cost.

The Registry is directed to transmit the related case records to the learned First Class Magistrate, Jaintia Hills District, Jowai.