P.K. Safiya vs The Director General of Police

K. Ramakrishnan, J.—This is an application filed by the petitioner who is the de facto complainant in Crime No. 328/13 of Thamarassery Police Station seeking for proper investigation by entrusting the same to Crime Branch under Article 226 of Constitution of India.

The case of the petitioner in the petition was that the petitioner filed a private complaint against the first accused in the present complaint alleging offence under Section 138 of the Negotiable Instruments Act. He was absconding in that case and the case was transferred to register of long pending cases and thereafter, he appeared and the case was refiled. Thereafter, the first accused filed a private complaint against the present petitioner and that was dismissed by the learned magistrate by Ext.P2 order stating that the agreement produced along with the complaint said to have been executed by the present petitioner was not a genuine one and it was a fabricated one. On coming to know about that fact, petitioner filed Ext.P1 complaint which was forwarded to the police by the learned magistrate under Section 156(3) of Code of Criminal Procedure and on receipt of the same, a crime was registered on Crime No. 328/13 of Thamarassery Police Station against the accused persons alleging offence under Sections 420, 468, 471 and Section 34 of Indian Penal Code. Thereafter, the police, without conducting proper investigation, filed Ext.P3 Final Report stating that no further action required and so, the proceedings be dropped. Dissatisfied with the same, the petitioner had moved this court seeking the following relief:

"i) To issue a writ of mandamus or any other writ order or direction directing the 1st respondent to entrust the investigation of Crime No. 328/2013 of Thamarassery Police Station to Crime Branch.

ii) To direct the second respondent to constitute a special investigation under the supervision of an Officer not below the rank of Dy.S.P for the investigation of Crime No:328//2013 of Thamarassery Police Station."

The learned Government Pleader appearing for the respondents submitted that after investigation, they have filed refer report as early as on 15.04.2013 and the remedy of the petitioner is to file protest complaint and so, the prayer in the petition has become infructuous. A report has been called for from the Judicial First Class Magistrate Court, No-I, Thamarassery as to whether the refer report has been accepted or not and the learned magistrate has sent a report which reads as follows:

"In pursuance of the above reference, I am respectfully submitting the following for kind consideration:

1) I have taken charge as Judl.1st Class Magistrate-I, Thamarassery on 30.06.2014.

2) On perusal of the records of RC 35/2014 (Cr.328/13 of Thamarassery P.S) it is seen that my learned predecessor has accepted further action dropped report (FAD) without issuing any notice to the de facto complainant.

3) Along with the report police has produced a served copy of refer notice singed by the de facto complainant u/s 157(2) and 173(1)(b) of Cr.P.C."

The Counsel for the petitioner submitted that though a refer report has been filed, no notice has been issued from court and the lower court was not justified in accepting the refer report without giving an opportunity to the petitioner for agitating the same. He had relied on the decision reported in Bhagwant Singh Vs. Commissioner of Police and Another, .

The learned Public Prosecutor submitted that before filing the report, a refer notice has been served on the petitioner and it was produced along with the refer report and as such no further notice is required.

It is an admitted fact that petitioner filed Ext.P1 private complaint against the accused persons mentioned therein alleging that they have committed the offence punishable under Sections 420, 468, 471 read with Section 34 of Indian Penal Code by creating a forged agreement said to have been executed by the present petitioner so as to use the same as evidence in a private complaint filed by the petitioner which was taken on file under Section 138 of the Negotiable Instruments Act. The petitioner came to know about the forged document, when it was revealed that the private complaint filed by the first accused in the case filed by the petitioner was dismissed as per Ext.P2 order in which it was mentioned that the agreement produced was a forged one. When she came to know about the same, she filed a complaint which was forwarded to the police by the learned magistrate under Section 156(3) of Code of Criminal Procedure and on that basis, the Thamarassery Police registered a case as Crime No. 328/13 of Thamarassery Police Station against three accused persons including the first accused in the case filed by the petitioner under Section 138 of the Negotiable Instruments Act and after investigation, Ext.P3 Final Report was filed stating that ''no further action required, hence dropped'', which is being challenged by the petitioner. The petitioner wanted to entrust the matter for investigation to another agency namely., Crime Branch. It is seen from the report of the Judicial First Class Magistrate that when they received the refer report, it was numbered as R.C.No.35/14 and it was accepted and further action dropped without issuing any notice to the de facto complainant from the court. It is also mentioned in the report that police had produced a served copy of the refer notice singed by the de facto complainant under Section 157(2) & 173(1)(ii) of Code of Criminal Procedure.

It is true that the Code of Criminal Procedure mandates the investigating officer to issue notice to the informant regarding the action taken when they filed a report under Section 173(2) of Code of Criminal Procedure before the court below by virtue of Section 173(2)(ii). But, in the decision reported in Bhagwant Singh Vs. Commissioner of Police and Another, , the honourable Supreme Court has held that when a final report has been filed by the investigating officer, if the magistrate has decided not to take cognizance on that report and accept and close the proceedings, then, a right of hearing must be given to the complainant before the accepting that report and the the objections if any of the complainant must be heard before accepting that report. In this case, that was not seen done by the court below. So, the court below has erred and committed illegality in accepting the report without issuing notice to the petitioner from court before accepting the refer charge submitted by the police in the above crime. So, the order accepting the refer report by the learned magistrate in Crime No. 328/13 of Thamarassery Police Station without issuing notice to the petitioner is illegal and improper and against law and the same has to be set aside and the learned magistrate has to be directed to take the case on file and issue notice to the de facto complainant and after giving an opportunity to the complainant to file objection or to file a protest complaint and then, conduct enquiry on that objection or complaint and dispose of the same in accordance with law. So, the petition is disposed of as follows:

The order of the Judicial First Class Magistrate, No-I, Thamarassery in R.C.No.35/14 (Crime No. 328/13 of Thamarassery Police Station) accepting the report without issuing further notice to the de facto complainant as mentioned in the decision cited supra, is set aside and the learned magistrate is directed to take the case on file and issue notice to the de facto complainant and give an opportunity to the de facto complainant to file objection to the refer report or file a protest complaint and if such a objection or protest complaint is filed, then, the learned magistrate is directed to consider and dispose of the same by giving an opportunity to the petitioner to substantiate the allegations made therein in accordance with law. The petitioner is directed to appear before the Judicial First Class magistrate Court, No-I, Thamarassery on 29.08.2014 and if the complainant files the objection or a protest complaint as mentioned above, then, the learned magistrate is directed to consider the same and dispose of the same in accordance with law. If the petitioner appears as directed, then, notice mentioned above need not be sent. If he did not appear, then, magistrate is directed to issue notice to the petitioner and dispose of the same in accordance with law.

With the above direction and observation, the petition is disposed of.

Hand over a copy of the order to the Counsel for the petitioner so as to enable him to produce the same before the court below. Office is directed to communicate this order to the court below immediately.