R. Rathinasabapathy vs State

S. Ashok Kumar, J.—This revision petition has been fled by the petitioner against the order of the learned Judicial Magistrate, Periyakulam

passed in Crime No. 571 of 1999 of Theni Police Station.

The brief facts of the case are as follows : The petitioner is the de facto complainant and he lodged a complaint against the S. I. of Police of

Theni Police Station which was registered as Crime No. 571/1999 for the offences under Sections 341, 323 and 324, IPC. After investigation a

final report u/s 173, Cr. P. C. was filed on 2-8-1999 before the Court and a final order dated 26-8-1999 was also recorded by the learned

Magistrate. The complainant /petitioner filed an application for the statement of final report filed u/s 173, Cr.P.C. dated 2-8-1999 and the final

order dated 26-8-1999. Learned Magistrate by order dated 11-3-2003 rejected the said application on the ground that part of the record shall

not be given u/s 173(4) Cr. P. C.

The accused in the complaint given by the petitioner which was referred, is the S. I. of Police. u/s 173(2)(ii), on completion of investigation, the

officer who forwards a report to the Magistrate shall also communicate the action taken by him to the person by whom the information relating to

the commission of the offence was first given. In the case on hand, the petitioner is the person who first gave the information regarding the

commission of the offence. The very purpose of such communication, which is mandatory, to be given to the complaint is that if he is not satisfied

with the police report he can agitate against the same in the proper forum. Law is settled that in such report is concerned, the Magistrate must give

notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. The informant or complainant may not

be able to make an effective representation if the copy of the report with the other documents filed by the police is not given to him. In the decision

reported in Bhagwant Singh Vs. Commissioner of Police and Another, , the Supreme Court has held as follows (Para 4):

Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under Sub-section (2)(i) of Section 173 comes

up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been

committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take

cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further

investigation under Sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in

the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option

to adopt one of three course: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that

there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be

made by the police under Sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of

the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased

aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the

Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is

sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report,

the informant would certainly be prejudiced because the First Information Report, the informant would certainly be prejudiced because the First

Information Report lodged by him would have failed of its purpose, wholly or in part. 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 takes 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. It was urged before us on behalf of the respondents that if in such a case

notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on

the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by

the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under Sub-

section (2)(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report

on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving

the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."" in view of the observation made by

the Supreme Court referred to above and also on the principles of natural justice, it is just and necessary that the informant/complainant should be

given a copy of the police report filed u/s 173, Cri. P. C. Therefore, the learned Magistrate is directed to furnish copies of the documents required

therein immediately.

Accordingly the revision is allowed.