(V. Gopala Gowda and R. Banumathi, JJ.)
B. Jayaraman ________________ Appellant(s)
v.
V. Anandaraj & Anr. __________ Respondent(s)
Criminal Appeal No(S). 228 of 2015, decided on February 4, 2015
[Arising out of S.L.P. (Crl.) No. 558 of 2011]
The Order of the court was delivered by
Order
1. Heard learned counsel for the parties.
2. Leave granted.
3. The complainant-appellant herein is before this Court questioning the correctness of the Order dated 24.03.2010 passed by the High Court of Judicature at Madras in Criminal O.P. No. 14903 of 2008 in exercise of its power under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the CrPC”) wherein the final report submitted pursuant to the Order of the learned Judicial Magistrate No. 1, Ponnamallee dated 7.11.2006 is under challenge, urging various legal contentions.
4. The facts in nut-shell giving rise to this appeal are that a complaint was filed by the appellant herein against the respondent and others. On the basis of the said complaint, investigation was made and a report was submitted before the learned Judicial Magistrate No. 1, Ponnamallee. Afterwards, notice was served upon the complainant in June, 2006. On 27.07.2006, a Protest Petition was filed by the appellant/de-facto complainant to the report. On the basis of the same, the statement of the complainant, appellant herein, was recorded. Thereafter, the learned Judicial Magistrate after recording reasons in his Order dated 7.11.2006 directed the Investigating Officer to examine the complainant with reference to the relevant documents in accordance with Section 156(3) CrPC and further directed to conduct proper investigation again by another Police Officer through the Assistant Commissioner of Police, Central Crime Branch and file a report.
5. It is stated at the Bar on behalf of the appellant that the said order has been complied with by the investigating officer, who submitted the final report/chargesheet against the respondents herein on 3.05.2007. The said report/chargesheet was challenged by the respondent No. 1 herein before the High Court of Judicature at Madras, urging various contentions.
6. The learned Judge of the High Court, after adverting to the rival legal contentions and certain factual aspects, set aside the final report and directed the learned Magistrate to proceed with the matter either under Section 203 CrPC or Section 204 CrPC on the assumption that while considering the Protest Petition, the report submitted earlier by the investigating officer, the complainant statement is recorded treating the same as a complainant proceeding. Therefore, the learned Judge of the High Court found fault with the procedure adopted by the learned Magistrate directed to conduct proper investigation again by another police officer through the Assistant Commissioner of Police, Central Crime Branch to further investigate the matter is impermissible in law. The said view taken by the High Court is contrary to the view taken by a three-Judge Bench of this Court in the case of Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537. In that case, this Court while examining the relevant provisions of the Code of Criminal Procedure, namely, Section 154 and Section 173, made the following observations at para 4, which read as under:
“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 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. 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 subsection (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.”
7. Learned counsel for the appellant strongly placed reliance upon the abovesaid portion of the judgment in support of the case of the appellant in justification of the order of the learned Magistrate. The very same judgment is relied upon by the learned counsel for the respondents to justify the order passed by the High Court.
8. Learned counsel for the respondents also relied upon the judgments of this Court in Tula Ram v. Kishore Singh, (1977) 4 SCC 459, K. Chandrasekhar v. State of Kerala (1998) 5 SCC 223, Rameshbhai Pandurao Hedau v. State of Gujarat, (2010) 4 SCC 185, Srinivas Gundluri v. Sepco Electric Power Construction Corporation, (2010) 8 SCC 206 and Vinay Tyagi v. Irshad Ali, (2013) 4 SCC (Cri) 557. However, having given our considered thought to the principles stated in these judgments, we are of the view that the judgments upon which the learned counsel for the respondents placed reliance are not applicable to the facts of the case at hand, therefore, the same need not be adverted to in this Order. Whereas the three-Judge bench in the case of Bhagwant Singh, referred to supra, justifies the order of the learned Magistrate and the impugned order warrants interference by this Court as the same is contrary to the above judgment.
9. After hearing learned counsel for the parties and perusing the order of both the learned Judicial Magistrate, Poonamallee and the impugned Order passed by the High Court, we are of the considered view that the learned Judge of the High Court erred in setting aside the order of the learned Judicial Magistrate directing the investigation again by another Police Officer through the Assistant Commissioner of Police, more so, pursuant to the order of the learned Magistrate, the further investigation was made and final report/chargesheet is filed.
10. For the aforesaid reasons, applying the principles laid down by this Court in Bhagwant Singh (supra), we are of the opinion that the impugned Order of the High Court is an apparent error in law and the same is liable to be set aside. Accordingly, the appeal is allowed and the impugned order is set aside.
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