Rajiv Kumar Arora vs Central Bureau of Investigation

Sudershan Kumar Misra, J.—The scope of this petition lies in narrow compass. Mr. Mathur who appears for the complainant states that his client had filed an FIR bearing No. RC-DAI-2007-A-0009, dated 6.2.2007 before CBI whereby he had sought to lay certain information against two individuals namely, Mr. Mishri Lal and Dr. Vikas Rampal. Consequent upon the investigation carried out by CBI, final report u/s 173 Cr.P.C was filed by the CBI before the Special Judge, CBI, Tis Hazari Courts, Delhi. As per this report, the CBI had decided to chargesheet only one of the two individuals against whom the report had been lodged, namely, Mr. Mishri Lal. As regards Dr. Vikas Rampal, who was the other person named by the complainant in the FIR; the CBI had decided not to charge sheet him. On the basis of this Final Report, the learned Special Judge, Delhi, passed an order on 2.01.2008 taking cognizance of the offence under Sections 7 and 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act and directed summons to be issued for the appearance of Mishri Lal on 22.01.2008.

The grievance of the petitioner, who happens to be the complainant, is that in passing the impugned order dated 2nd January, 2008, the aforesaid final report of the CBI u/s 173 Cr.PC, wherein one of the persons named by the petitioner in the FIR was not chargesheeted by the CBI, was in effect accepted by the Special Judge, CBI. He states that since the effect of that order was that proceedings against Dr. Vikas Rampal were dropped, the Special Judge ought to have given an opportunity to the petitioner/ complainant to be heard before passing the said order. For this proposition, learned Counsel for the petitioner relies squarely on the decision of Full Bench of the Supreme Court in the case of Bhagwant Singh v. Commissioner of Police and Anr. 1985 SCC (Cri.) 267 where in paragraph 4, it is stated, inter alia, as follows:

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 courses : (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 lodged by him would have failed of its purpose, wholly or in part....

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.

Learned Counsel for the CBI, whilst maintaining his client''s position with regard to the aforesaid report u/s 173 Cr.P.C, nevertheless, does not seriously controvert the proposition of law laid down in this authority.

In that view of the matter, and without going into any other aspect, the impugned order dated 2.01.2008 is set aside on the sole ground that since the trial court has decided not to proceed against one of the two persons named in the FIR, albiet on the report u/s 173 Cr.PC filed by the CBI before it; the court ought to have given notice to the informant and provided him an opportunity to be heard at the time of consideration of the said report. Needless to say, once the requisite opportunity has been granted, and after hearing the informant, it would be open to the Special Judge to take a decision in the matter on its own merits.

Keeping in view the fact that this is a matter which is being tried by Special Judge, CBI, it is directed that the requisite opportunity be granted to the informant/petitioner herein expeditiously. Learned Counsel for the petitioner states that he shall not seek any adjournment in this matter. Consequently, the impugned order and all the proceeding pending before the trial court are set aside.

Petition is disposed of.

Trial Court Record be sent back.

Dasti.