Jharkhand High Court
Kedar Yadav vs The State Of Jharkhand ... Opposite ... on 24 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.677 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.677 of 2021
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Kedar Yadav, aged about 33 years, Son of Hesagar Yadav, Resident of Staff Colony, Churcha, Ward No.8, Shivpur, P.O. & P.S.- Charcha, Distt.- Koriya, Chhattisgarh. ... Petitioner Versus The State of Jharkhand ... Opposite Party
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For the Petitioner : Mr. Pankaj Srivastava, Advocate
For the State : Mr. Vineet Kr. Vashistha, Spl. P.P.
Ms. Nehala Sharmin, Spl.P.P.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 24.09.2016 passed by learned Judicial Magistrate-1st Class, Palamau at Daltonganj in Bishrampur P.S. Case No.52 of 2015 corresponding to G.R. No.1906 of 2015 registered for the offences punishable under Sections 363 and 392 of the Indian Penal Code whereby and where under the learned Judicial Magistrate-1st Class, Palamau at Daltonganj has accepted the Final Form No.120 of 2015 without any notice being served upon the petitioner and behind the back of the petitioner; and for further directing the Judicial Magistrate-1st Class, Palamau at Daltonganj to pass appropriate orders for directing the Investigating Officer to make further and proper investigation in the said case.
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3. The brief facts of the case is that the petitioner is the informant of Bishrampur P.S. Case No.52 of 2015 which has been instituted alleging therein that on 07.09.2015; four unknown persons riding bikes stopped the truck of the informant bearing registration No. CG-15AC-2737. Out of the four persons, three persons boarded the truck and told to take them to Garhwa. The three persons who boarded the truck, after sometime on the point of arms, assaulted the driver and cleaner of the said truck and took the truck in their control. They made the driver and cleaner of the truck senseless by forcibly administering sedative injection and threw them out from the truck and fled away with the truck. Somehow, the driver of the truck went to the nearby locality and begged for aid. The residents of the locality aided the driver and intimated the informant- who is the owner of the said truck over phone. On the basis of the said written report, the case was instituted but it is alleged that no investigation was done and not even the statement of the informant was recorded. Later on the victims being the driver Narendra Singh and the cleaner were examined. There is also allegation that the miscreants decamped with the documents of the vehicle as well as the mobile phone and the license of the driver. Police, after investigation of the case, submitted Final Report mentioning therein that there is lack of evidence regarding the allegations. The learned Judicial Magistrate-1st Class, Palamau at Daltonganj on 24.09.2016 in its order observed that the informant is absent. Though notice was issued to the informant yet the service report of the same has not been received. The informant is not appearing in the court for a considerable period of time which indicates that the informant is not interested in the case and accepted the Final Form. 2 Cr. M.P. No.677 of 2021
4. Mr. Pankaj Srivastava- learned counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court of India in the case of Bhagwant Singh vs. Commissioner of Police reported in (1985) 2 SCC 537 paragraph-7 of which reads as under:-
"7. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. This Court further held that the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. This Court felt that the question relating to issue of notice and grant of opportunity as aforedescribed was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the Magistrates within their respective jurisdictions."
And submits that the petitioner is entitled to a notice as well as an opportunity being heard before acceptance of the final report submitted by the police in this case but the learned trial court committed an illegality by passing the said order accepting the final report, even though admittedly no valid notice was served upon the petitioner, and, thus, the petitioner was not given the opportunity of being heard.
5. Learned counsel for the petitioner further relies upon the judgment of the Hon'ble Patna High Court in the case of Nitish Kumar Singh @ Nitesh Kumar vs. The State of Bihar & Others reported in 2016 0 Supreme (Pat) 358 and submits that it is a settled principle of law that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report submitted by the police under section 173 of the Code of Criminal Procedure and though the learned Magistrate has also issued notice after submission of the Final Report to the petitioner but certainly committed a grave illegality by not ensuring that the notice is served upon the informant and without service of notice, has committed an illegality in accepting the Final Report behind the back of the petitioner/informant. Hence, it is submitted that the order dated 3 Cr. M.P. No.677 of 2021 24.09.2016 passed by learned Judicial Magistrate-1st Class, Palamau at Daltonganj in Bishrampur P.S. Case No.52 of 2015 corresponding to G.R. No.1906 of 2015 be quashed and set aside and further the learned Judicial Magistrate-1st Class, Palamau at Daltonganj be directed to pass appropriate orders for directing the Investigating Officer to make further and proper investigation in the said case.
6. Learned Spl.P.P. appearing for the State vehemently opposes the prayer of the learned counsel for the petitioner and relies upon the judgment of the Hon'ble Supreme Court of India in the case of Zunaid vs. State of Uttar Pradesh & Others reported in 2023 SCC OnLine SC 1082 paragraphs-11 of which reads as under:-
"11. In view of the above, there remains no shadow of doubt that on the receipt of the police report under Section 173 Cr. P.C., the Magistrate can exercise three options. Firstly, he may decide that there is no sufficient ground for proceeding further and drop action. Secondly, he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; and thirdly, he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section
200. It may be noted that even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report. As held by this Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, as followed in B. Chandrika v. Santhosh, a Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of the police report. No doubt a Magistrate while exercising his judicial discretion has to apply his mind to the contents of the Protest Petition or the complaint as the case may be."
and submits that even after acceptance of the Final Report of the police under Section 173 of the Code of Criminal Procedure, the Magistrate has power to take cognizance of an offence upon a complaint or a protest petition even on same or similar allegations. Hence, it is submitted that the proper course for the 4 Cr. M.P. No.677 of 2021 petitioner is to approach the learned Magistrate by filing a complaint or protest petition. Hence, it is submitted that this Cr.M.P., being not maintainable, be dismissed.
7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this Court finds that it is a settled principle of law that before accepting the Final Report submitted by the police by the learned Magistrate, the informant is entitled to a notice and an opportunity to be heard at the time of consideration of said final report submitted by the police under section 173 of the Code of Criminal Procedure; as has also been held by the Hon'ble Supreme Court of India in the case of Gangadhar Janardan Mhatre v. State of Maharashtra & Others reported in (2004) 7 SCC 768 paragraphs-7 and 11 of which reads as under:-
7. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. This Court further held that the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. This Court felt that the question relating to issue of notice and grant of opportunity as aforedescribed was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the Magistrates within their respective jurisdictions.
11. As decided by this Court in Bhagwant Singh case [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] the Magistrate has to give notice to the informant and provide an opportunity to be heard at the time of consideration of the report. It was noted as follows : (SCC p. 542, para 4) "[T]he Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report."
8. Now, coming to the facts of this case, it is crystal clear from the impugned order itself that the learned Magistrate ordered for issue of notice to the petitioner/informant before acceptance of the Final Report submitted by 5 Cr. M.P. No.677 of 2021 the police, which indicates that the learned Magistrate was very much aware about the said requirements of law but the impugned order dated 24.09.2016 passed by learned Judicial Magistrate-1st Class, Palamau at Daltonganj in Bishrampur P.S. Case No.52 of 2015 corresponding to G.R. No.1906 of 2015 itself indicates that the notice was never served upon the petitioner/informant. No valid service report of the notice is available in the record but still the learned Magistrate, ignoring this mandatory requirement of law, having accepted the Final Form, this Court has no hesitation in holding that the impugned order dated 24.09.2016 passed by learned Judicial Magistrate-1st Class, Palamau at Daltonganj in Bishrampur P.S. Case No.52 of 2015 corresponding to G.R. No.1906 of 2015 is not sustainable in law.
9. Accordingly, the impugned order dated 24.09.2016 passed by learned Judicial Magistrate-1st Class, Palamau at Daltonganj in Bishrampur P.S. Case No.52 of 2015 corresponding to G.R. No.1906 of 2015 is quashed and set aside.
10. So far as the prayer of the petitioner for directing the learned Judicial Magistrate-1st Class, Palamau at Daltonganj to direct further investigation of the case is concerned, the petitioner has not filed any such application before the learned Magistrate as yet and this Court has already quashed the impugned order dated 24.09.2016 passed by learned Judicial Magistrate-1st Class, Palamau at Daltonganj in Bishrampur P.S. Case No.52 of 2015 corresponding to G.R. No.1906 of 2015. Therefore, the petitioner/informant is free to file appropriate application before the learned Magistrate in respect of this prayer. It is made clear if such application is filed by the petitioner, the learned Judicial Magistrate-1st Class, Palamau at Daltonganj will consider the same in accordance with law.
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11. This Cr.M.P. stands disposed of accordingly.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 24th of January, 2024 AFR/ Animesh 7