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2004 CriLJ 4623 Bench: A Pasayat, C Thakker Gangadhar Janardan Mhatre vs tate !" Maharashtra And !

rs# $n 2%&'&2004 J()GM*+T Arijit Pasayat, J. 1. The appellant calls in question legality of the order passed by a Division Bench of the Bo bay !igh "ourtdis issing the "ri inal #rit Petition $o. 1%1& of 1''( filed by the appellant. The )rit petition under Article**+ of the "onstitution of ,ndia, 1'-% .in short the /"onstitution/0 )as filed )ith the follo)ing prayers1 /To call for record and proceedings of 2essions "ase $o. +*34' in "r.$o. *-(34( pending before J.5.6.".7asai for consideration. To issue )rit of anda us and not any other )rit, order or direction to transfer 2tate ,D to any other i partial the investigation of "r.$o. *-(34( fro

investigating agency and3or to 2enior P.,. 5anic8pur Police2tation, 7asai under the supervision of 2uperintendent of Police, Thane .9ural0. To issue a )rit of anda us and3or any other )rit, order or anda us calling upon the 2essions direction in the nature of )rit of onths fro the date of co

Judge, Palghar to try and dispose of 2essions "ase $o. +*34' )ithin & itting the case to 2essions "ourt. it the present To direct the learned J.5.6.". 7asai to discharge the four adivasis accused in the 2essions "ase $o. &%&34' and co proper the concerned authorities justice in future. Petitioner ay be a)arded the costs of this petition. 9espondent $os. * to ' to 2essions "ourt for trial. ,f it is found just and ay be directed to ta8e disciplinary iscarriage of action against the judicial and police officer to avoid the

To pass any other order )hich :our ;ordship dee interest of justice./

fit in the

*. The !igh "ourt had originally issued notice before ad ission to the ,nspector of Police 2tation ",D, )ho filed an affidavit on 1%th 5arch, 1''4. Appellant<s grievance pri arily )as that the respondent $os. * to ' herein .)ho )ere the respondents before the !igh "ourt in the #rit Petition0 had allegedly 8illed his brother and caused grievous injuries to his nephe). The first infor ation report in this regard )as registered on *'.+.1'4( bearing ".9. $o. *-( of 1'4(. The !igh "ourt noted that the case had been co itted under orders passed by learned 5agistrate and )as pending in the "ourt of 2essions, Palghar as 2essions "ase $o. &%& of 1'4'. The !igh "ourt, therefore, )as of the vie) that )hen the case )as pending before the 2essions "ourt, there )as no question of transferring investigation to so e other agency. ,t also noticed that ".9. $o. *-4 of 1'4( of the 7asai Police 2tation )here the appellant figured as an accused is the subject atter of "ri inal "ase $o. &* of 1''% ending before the ;earned J.5.6.". 7asai, pursuant to )hich charge sheet )as filed. ,n that vie) of the atter the !igh "ourt found that there )as no scope for entertaining the grievances as raised by the appellant. &. ,n the present Appeal the appellant has ade serious allegations about the co petence and fairness of not only the ,nvestigating =fficers but also so e of the judicial officers. ,t appears that originally the investigating agency had filed a petition for closing the prayer atter pursuant to the 6,9 lodged by the appellant. ;earned ade by the Police "o issioner, ".,.D. Bo bay Division to Judicial 5agistrate, 6irst "lass, 7asai had passed order accepting the release the present respondent $os. * to ' as per the provisions of the 2ection 1+' of the "ode of "ri inal Procedure 1'(&, .in short the <"ode<0. The order )as assailed in revision before the learned ,7 Additional 2essions Judge, Thane, )ho by order dated 1'th 6ebruary,

1''+, in "ri inal 9evision Application $o. 1%& of 1''', set aside the order. Direction )as given to the learned 5agistrate to refer the atter to the concerned ,nvestigating =fficer for further investigation under 2ub>section .&0 of 2ection 1-+ of the "ode. Pursuant to the order several proceedings in several courts have ta8en place and the is travelling fro atter one court to another. ;earned J.5.6.". 7asai on

*&.+.1''( directed the investigating officer to further investigate as per the directions given. ,t appears that on ?.?.1''( learned Additional 2essions Judge, Palghar, passed order on the report of the ,nvestigating =fficer dated *4.1.1''( and the atter )as sent to the Judicial 5agistrate, 7asai )ith direction of passing necessary order. The ,nvestigating =fficer had reported that certain action, pursuant to the direction given, has been ta8en. "onsidering the circu stances, the )rit petition )as dis issed. ?. ;earned counsel appearing for the appellant sub itted that )hen there has been total failure of justice on account of la@ity of the ,nvestigating Agency there )as need for change of the ,nvestigating Agency for further and better investigation. ,t )as also sub itted that so e of the judicial officers did not act )ithin the four corners of la) and did not ta8e note of the observations ade by the learned Additional 2essions Judge. ,t )as sub itted that )hen ,nvestigating Agency and judicial officers had not acted rationally and in accordance )ith la), the !igh "ourt should have accepted the prayers sub itted that the appellant has unnecessarily ade. the -. ,n response, learned counsel appearing for the respondents prolonged proceedings and investigating officers and3or the judicial officers )ere not supposed to act in the anner the appellant desires, they have to act as provided in la). ,t is also sub itted that course available to be adopted in case final report is sub itted, has been indicated by this court in several cases and if the appellant has any grievance the sa e can be redressed in the anner provided in la) and not in the )ay the

appellant desires, and certainly not in a )rit petition. !e can file a protest petition if per issible in la). +. There is no provision in the "ode to file a protest petition by the infor ant )ho lodged the first infor ation report. But this has been the practice. Absence of a provision in the "ode relating to filing of a protest petition has been considered. This "ourt in Bhag)ant 2ingh v. "o issioner of Police and Anr. , stressed on the desirability ade under on a of inti ation being given to the infor ant )hen a report /....There can, therefore, be no doubt

2ection 1(&.*0 is under consideration. The "ourt held as follo)s1 that )hen, consideration of the report ade by the officer in charge of a police

station under 2ub>section .*0.i0 of 2ection 1(&, the 5agistrate is not inclined to ta8e cogniAance of the offence and issue process, the infor ant ust be given an opportunity of being heard so that he can a8e his sub ission to persuade the 5agistrate to ta8e cogniAance of the offence and issue process. #e are accordingly of the vie) that in a case )here the 5agistrate to )ho a report is for)arded under 2ub> section .*0.i0 of 2ection 1(& decides not to ta8e cogniAance of the offence and to drop the proceeding or ta8es the vie) that there is no sufficient ground for proceeding against so e of the persons entioned in the 6irst ,nfor ation 9eport, the 5agistrate notice to the infor ant and provide hi the ti e of consideration of the report.../ (. Therefore, there is no shado) of doubt that the infor ant is entitled to a notice and an opportunity to be heard at the ti e of consideration of the report. This "ourt further held that the position is different so far as an injured person or a relative of the deceased, )ho is not an infor ant, is concerned. They are not entitled to any notice. This "ourt felt that the question relating to issue of notice and grant of opportunity as afore>described )as of general i portance and directed that copies of the judg ent be sent to the !igh "ourts in all the 2tates ust give an opportunity to be heard at

so that the !igh "ourts in their turn

ay circulate the sa e a ong the

5agistrate )ithin their respective jurisdictions. ,n Abhinandan Jha and Anr. v. Dinesh 5ishra , this "ourt )hile considering the provisions of 2ections 1-+.&0, 1+', 1(4 and 1'% of the "ode held that there is no po)er, e@pressly or i pliedly conferred, under the "ode, on a 5agistrate to call upon the police to sub it a charge sheet, )hen they have sent a report under 2ection 1+' of the "ode, that there is no case ade out for sending up an accused for trial. The functions of the 5agistracy and the police are entirely different, and the 5agistrate cannot i pinge upon the jurisdiction of the police, by co pelling the the to change their opinion so as to accord )ith his vie). !o)ever, he is not deprived of the po)er to proceed )ith atter. There is no obligation on the 5agistrate to accept the report if he does not agree )ith the opinion for ed by the police. The po)er to ta8e cogniAance not)ithstanding for ation of the opinion by the police )hich is the final stage in the investigation has been provided for in 2ection 1'%.10.c0. '. #hen a report for)arded by the police to the 5agistrate under 2ection 1(&.*0.i0 is placed before hi report several situations arise. The itted ay conclude that an offence appears to have been co

by a particular person or persons and in such a case, the 5agistrate ay either .10 accept the report and ta8e cogniAance of the offence and issue process, or .*0 proceeding, or .&0 ay disagree )ith the report and drop the a8e a further report. The report ay ay direct further investigation under 2ection

1-+.&0 and require the police to appears to have been co courses open i.e., .10 he proceedingB or .*0 he

on the other hand state that according to the police, no offence itted. #hen such a repot is placed before ay accept the report and drop the the 5agistrate he has again option of adopting one of the three ay disagree )ith the report and ta8e the vie)

that there is sufficient ground for further proceeding, ta8e cogniAance

of the offence and issue processB or .&0 he investigation to be

ay direct further

ade by the police under 2ection 1-+.&0. The

position is, therefore, no) )ell>settled that upon receipt of a police report under 2ection 1(&.*0 a 5agistrate is entitled to ta8e cogniAance of an offence under 2ection 1'%.10.b0 of the "ode even if the police report is to be effect that no case is ade out against the accused. The 5agistrate can ta8e into account the state ents of the )itnesses e@a ined by the police during the investigation and ta8e cogniAance of the offence co plained of and order the issue of process to the accused. 2ection 1'%.10.b0 does not lay do)n that a 5agistrate can ta8e cogniAance of an offence only if the ,nvestigating =fficer gives an opinion that the investigation has ade out a case against the ind to the facts accused. The 5agistrate can ignore the conclusion arrived at by the ,nvestigating =fficer and independently apply his e erging fro the investigation and ta8e cogniAance of the case, if he

thin8s fit, e@ercise of his po)ers under 2ection 1'%.10.b0 and direct the issue of process to the accused. The 5agistrate is not bound in such a situation to follo) the procedure laid do)n in 2ections *%% and *%* of the "ode for ta8ing cogniAance of a case under 2ection 1'%.10.a0 though it is open to hi to act under 2ection *%% or 2ection *%* also. C2ee ,ndia 2arat Pvt. ;td. v. 2tate of Darnata8a and Anr. E. The infor ant is not prejudicially affected )hen the 5agistrate decides to ta8e cogniAance and to proceed )ith the case. But )here the 5agistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or ta8es the vie) that there is aterial for proceeding against so e and there are insufficient grounds in respect of others, the infor ant )ould certainly be prejudiced as the 6irst ,nfor ation 9eport lodged beco es )holly or partially ineffective. Therefore, this "ourt indicated in Bhag)ant 2ingh<s case .supra0 that )here the 5agistrate decides not to ta8e cogniAance and to drop the proceeding or ta8es a vie) that there is no

sufficient ground for proceeding against so e of the persons entioned in the 6irst ,nfor ation 9eport, notice to the infor ant and grant of opportunity of being heard in the notice in that regard. 1%. #e ay add here that the e@pressions <charge>sheet< or <final report< are not used in the "ode, but it is understood in Police 5anuals of several 2tates containing the 9ules and the 9egulations to be a report by the police filed under 2ection 1(% of the "ode, described as a /charge>sheet/. ,n case of reports sent under 2ection 1+', i.e., )here there is no sufficiency of evidence to justify for)arding of a case to a 5agistrate, it is ter ed variously i.e., referred charge, final report or su ary. 2ection 1(& in ter s does not refer to any notice to be given to raise any protest to the report sub itted by the police. Though the notice issued under so e of the Police 5anuals states it to be a notice 2ection 1(& of the "ode, though there is nothing in 2ection 1(& specifically providing for such a notice. As decided by this "ourt in Bhag)ant 2ingh<s case .supra0, the 5agistrate has to give the notice to the infor ant and provide an opportunity to be heard at the ti e of consideration of the report. ,t )as noted as follo)s1> /....the 5agistrate infor ant and provide hi consideration of the report.../ 1*. Therefore, the stress is on the issue of notice by the 5agistrate at the ti e of consideration of the report. ,f the infor ant is not a)are as to )hen the atter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhag)ant 2ingh<s case .supra0 the right is conferred on the infor ant and none else. ust give notice to the an opportunity to be heard at the ti e of atter beco es andatory. As indicated above, there is no provision in the "ode for issue of a

1&. #hen the infor ation is laid )ith the Police, but no action in that behalf is ta8en, the co plainant is given po)er under 2ection 1'% read )ith 2ection *%% of the "ode to lay the co plaint before the 5agistrate having jurisdiction to ta8e cogniAance of the offence and the 5agistrate is required to enquire into the co plaint as provided in "hapter F7 of the "ode. ,n case the 5agistrate after recording evidence finds a pri a facie case, instead of issuing process to the accused, he is e po)ered to direct the police concerned to investigate into offence under "hapter F,, of the "ode and to sub it a report. ,f he finds that the co plaint does not disclose any offence to ta8e further action, he is e po)ered to dis iss the co plaint under 2ection *%& of the "ode. ,n case he finds that the co plaint3evidence recorded pri a facie discloses an offence, he is e po)ered to ta8e cogniAance of the offence and )ould issue process to the accused. These aspects have been highlighted by this "ourt in All ,ndia ,nstitute of 5edical 2ciences G ployees< Hnion .9eg.0 through its President v. Hnion of ,ndia and =rs. .1''( 2upre e "ourt "ases ."rl.0 &%&0. ,t )as specifically observed that a )rit petition in such cases is not to be entertained. 1?. The inevitable conclusion is that the !igh "ourt<s order does not suffer fro any infir ity. The )rit application )as not the proper re edy, and )ithout availing the re edy available under the "ode, the appellant could not have approached the !igh "ourt by filing a #rit application. 1-. Appeal is dis issed.