Allahabad High Court
Vishwanath And Ors. vs The State Of U.P And Ors. on 15 April, 2015
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR COURT NO.21 Reserved on 30.03.2015 Delivered on 15.04.2015 CRIMINAL MISC. CASE NO.348 OF 2015 (U/s 482 of Code of Criminal Procedure) 1. Vishwanath aged about 33 years son of Rajaram 2. Giriraj aged about 36 years son of Rajaram 3. Udayraj aged about 40 years son of Rajaram 4. Baburam aged about 60 years son of Ramswaroop All resident of Village Vishnoharpur, Police Station Chhapiya, District Gonda. ..... Petitioners Versus 1. State of U.P. 2. Additional Sessions Judge, Court No.2, District Gonda 3. Chief Judicial Magistrate, District Gonda 4. Mohd. Jasim, Naib Tehsildar, Tehsil Mankapur, District Gonda 5. Shri Rajendra Prasad Verma, Resident of Village Vishnopur, Police Station Chhapiya, District Gonda. ...... Opposite Parties Counsel for Petitioner:- Sri Siddharth Srivastava and Sri Abhijeet Srivastava Counsel for Respondent :- AGA Hon'ble Vishnu Chandra Gupta,J.
JUDGEMENT Heard learned counsel for the petitioners and learned A.G.A. for the State.
By means of this petition, under Section 482 of Cr.P.C., petitioners have prayed for quashing the impugned order dated 21.11.2014 passed by learned Additional Sessions Judge, Court No.2, District Gonda and the order dated 23.11.2013 passed by learned Chief Judicial Magistrate, District Gonda and the proceedings of Misc. Case No.1068 of 2013 arising out of Case Crime No.150 of 2012, under Sections 419, 420, 467, 468, 471 IPC, Police Station Chhapiya, District Gonda pending in the court of learned Chief Judicial Magistrate, Gonda.
Brief facts for deciding this petition are that an FIR was lodged by the opposite party no.4 Mohd. Jasim, Naib Tehsildar, Tehsil Mankapur, District Gonda against the petitioner in pursuance of the complaint made by opposite party no.5 Rajendra Prasad Verma with the allegation that the petitioner have committed forgery in the revenue record. After conducting the investigation, the police submitted final report. Learned Magistrate issued notice to opposite party no.4 to file protest petition in case he is not satisfied with the final report submitted by the police but inspite of opposite party no.4, the opposite party no.5 filed protest petition. After considering the protest petition, learned Magistrate vide order dated 23.11.2013 rejected the final report and directed for further investigation. Aggrieved by the order dated 23.11.2013, the petitioners preferred revision before learned District and Sessions Judge, Gonda and the same has been dismissed vide order dated 21.11.2014. Aggrieved by the aforesaid two orders, the present petition has been filed by the petitioners.
It has been contended by learned counsel for the petitioners that opposite party no.5-Rajendra Prasad Verma is not the informant of this case, hence he has no right to raise protest.
It is not in dispute that it is the Rajendra Prasad on whose instance, the forgery came in the light and Tehsildar Manikpur proceeded to lodge the FIR against the petitioners.
It has also been contended that the forgery which has been pointed out was in respect of a Government pond and not in respect of any private property.
It has been submitted by learned A.G.A. that the proposed accused has no right to challenge this order, which is purely of interlocutory nature as none of the proposed accused has been affected by the impugned order. Hence, this petition is not legally maintainable.
Having considered the submissions of learned counsel for the parties and going through the record of the case, at the very outset, it could be necessary to mention that issuing of any notice to the informant is not a statutory provision. The law to issue notice to informant is based on the judgment of the Apex Court in Bhagwant Singh Vs. Commissioner of Police and another; AIR 1985 SC 1285. Para 5 of the said judgment is extracted for ready reference:
"5. The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Criminal P.C., 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 the 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. We may also observe that even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report."
The intention of the Apex Court behind propounding the aforesaid law is that a person, who put the law into motion to book real culprits should be given a chance to inform the court before dropping the proceedings initiated on the basis of first information report. The Apex Court has not limited the rights of the informant but the Apex Court extended the benefit to the victims including injured etc. In the peculiar facts and circumstances of the case, the argument of the petitioner has to be taken into consideration.
In Chittaranjan Mridha Vs. Dulal Ghosh and another decided on 08.05.2009 in Criminal Appeal No.964 of 2008, the law of Bhagwant Singh's case (Supra) was considered and approved. However, it was dealt in paragraph 17 that obligation of the Magistrate to issue notice only to the informant and not to any other person but it is to be considered in the light of Bhagwant Singh's case (Supra). The opposite party no.5 put the law into motion and played the role of whistleblowers against a public servant who were allegedly indulged in manipulating the record pertaining to the Government property. If he approaches the Magistrate himself and raised protest against final report, the order would not be invalidated on the ground that his protest cannot be considered.
In this case, the notice has not been issued to the opposite party no.5 but he himself appeared before the court and raised the protest against the final report and if the Magistrate has taken into consideration the objection, I do not find any reason to interfere in the impugned order which is not prejudicial to the interest of the petitioners who are none else but proposed accused in the commission of crime. They have not been summoned yet to face trial. Only order directing further investigation is an order equal to an order directing investigation on an application under Section 156(3), Cr.P.C. Moreover, after latest amendment in Section 24 of the Cr.P.C., the victim was also included in the process of prosecuting the culprit. Proviso added in Section 24 give ample jurisdiction to a victim to engage an advocate of his own choice to assist the prosecution.
The trial and prosecution are two different stages. Prosecution of a person start from initiation of the criminal proceedings against him. However, the trial of a particular accused in respect of a particular offence begins with when after inquiry or investigation. The court decide to proceed against accused to determine the guilt prima facie established during inquiry or investigation.
Moreover, the impugned order is purely an interlocutory in nature and what prejudice has been caused to the petitioners by the impugned order has not been shown. It is virtually an order to collect the material against the culprits, it cannot be interfered by the court especially at the instance of the proposed accused. The investigation is a tool to search out the truth in the information given. Therefore, possibility cannot be ruled out that after investigation, the petitioner may be found innocent.
With the aforesaid observations, this writ petition lacks merit and is accordingly dismissed.
Dated:15.04.2015 akverma