Thursday 14 April 2016

Whether it is necessary to hear informant before accepting discharge application U/S 169 of CRPC?

I   am   in   complete   agreement   with   the
observations   of   their   Lordship   of   Gujarat   High   Court.
Therefore,   in   my   opinion   also,   it   is   mandatory   that   the
learned Magistrate is under obligation to hear first informant
before   accepting   the   discharge   as   submitted   by   the
Investigating   Officer   u/s   169   of   the   Code   of   Criminal
Procedure.  
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY   
                                BENCH AT AURANGABAD
      
 CRIMINAL REVISION APPLICATION NO. 205 OF 2002
Maroti  S/o Kaluba More  

V E R S U S
The State of Maharashtra

         CORAM : V.M.DESHPANDE, J.
     DATE OF JUDGMENT : 4th FEBRUARY, 2015   
   Citation;2016 ALLMR(CRI)960

1. Rule.     Rule is made returnable forthwith.     By
the consent of the learned counsel for the Applicant, and the
learned A.P.P. for respondent Nos. 1 to 3 – State, the present
Criminal Revision Application is taken up for final hearing.  
2. Heard  Mr.   Sk.S.A.R.   Ahmed   holding   for   Mr.
A.S.Golegaonkar,  the learned counsel for the applicant and
Mr. V.P.Kadam, the learned A.P.P. for respondent Nos. 1 to 3
– State.  
3. The applicant/original first informant questions
the correctness and propriety of the Order dated 24/06/2002
passed   by   the   learned   Judicial   Magistrate   First   Class,
Kandhar,   district   Nanded   in   First   Information   Report
[hereinafter   referred   as   'F.I.R.'   for   brevity]   bearing   No.
159/2000 discharging the accused persons, who were named
in the said F.I.R.  
4. The principal challenge against the said order is
the denial of the opportunity of hearing to the applicant.   It
is submitted by the learned counsel for the applicant that no

prior   notice   was   given   by   the   learned   Magistrate   to   the
applicant and without giving opportunity of hearing to the
applicant, the report filed by the Police Station Officer u/s
169 of the Code of Criminal Procedure was accepted.   In
order to buttress his submission, the learned counsel relied
upon   the   decision   in   the   case   of  Bhagwant   Singh     Vs.
Commissioner of Police and another, AIR 1985 Supreme
Court 1285 and submitted that it was incumbent on the part
of the learned Magistrate to give prior notice and hearing.  
5. The question, which is posed before this Court
for determination, is ' as to whether the first informant is
entitled to notice and whether he is required to be heard by
the learned Magistrate before he accepts the report submitted
by the Investigating Officer in respect of his action taken u/s
169 of the Code of Criminal Procedure ' ?
6. A similar question was before the Gujarat High
Court   in   Special   Criminal   Application   No.   334   of   1993.
Natwarlal Ambalal Patel  Vs.  State of Gujarat.  
I   have   the   advantage   of   perusal   of   the   said
Judgment of Gujarat High Court while deciding the present

Criminal Revision Application.  
7. Section 169 of the Code of Criminal Procedure,
1973 reads as under, :
“    169.   Release   of   accused   when
evidence   insufficient   ­    If,   upon   an
investigation   under   this   Chapter,   it
appears to the officer­in­charge of the
Police   Station   that   there   is   not
sufficient evidence or reasonable ground
of suspicion to justify the forwarding of
the accused to a Magistrate, such officer
shall,   if   such   person   is   in   custody,
release him on his executing  a bond,
with or without sureties, as such officer
may direct, to appear, if and when so
required,   before   a   Magistrate
empowered   to   take   cognizance   of   the
offence on a Police Report, and to try
the accused or commit him for trial ”. 
Perusal   of   the   aforesaid   Section   would   reveal
that the Investigating Officer is under obligation to release
such person, who is in custody on executing a bond with or
without sureties, if evidence is not sufficient and/or there are
no reasonable ground of suspicion to forward such person to

the Magistrate.  
The plain reading of Section 169 of the Code of
Criminal   Procedure,   therefore,   postulates   that   when   the
Investigating   Officer   reports   his   action   to   the   learned
Magistrate, it will not be a report, however it will be a report
of his action either by the Investigating Officer or by the
Officer in­charge of the police station. 
8. Section 173  of the Code of Criminal Procedure
states about the steps to be taken by the Investigating Officer
after the completion of the investigation.     The Officer incharge
of the police station is required to forward the report
under   said   Section   to   the   Magistrate   empowered   to   take
cognizance of the offence in prescribed form.  
  Thus,   Section   169   of   the   Code   of   Criminal
Procedure   is   silent   in   making   report   to   the   Magistrate,
however   the   Investigating   Officer   is   under   obligation   to
submit report to the Magistrate u/s   173   of the Code of
Criminal Procedure.   Thus, though Section 169 of the Code
of Criminal Procedure does not contemplate making a report,
it contemplates of obtaining a bond with or without sureties

from the accused to appear if and when so required before
the Magistrate empowered to take cognizance of the offence
on a police report and such report is contemplated u/s 173
of the Code of Criminal Procedure.     Clause (d) and (f) of
Section  173 (2) (i) of the Code of Criminal Procedure reads
as under, : 
“ (d) whether any offence appears as to
have   been   committed   and,   if   so,   by
whom.  
(f) whether   he  has  been  released  on
his   bond   and,   if   so,   whether   with   or
without sureties ”. 
9. Paragraph   10  of  the   Judgment   in  the   case   of
Natvarlal Ambalal Patel   Vs.   State of Gujarat & 11 of
Gujarat High Court in Special Criminal Application No.
334 of 1993 is as under, : 
“ In fact if the provisions contained in
Section     173     of   the   Code   of   Criminal
Procedure   are   seen,   they   deal   with   a
situation   where   upon   completion   of
investigation, the officer in­charge of the
police station is required to forward to a
Magistrate empowered to take cognizance

of the offence on a police report, a report
in   the   form   prescribed   by   the   State
Government   indicating   the   names   of
parties, nature of information, the names
of persons who appear to be acquainted
with   the   circumstances   of   the   case,
whether   any   offence   appears   to   have
committed and, if so, by whom, whether
he has been released on bond and, if so,
with or without sureties and whether he
has   been   forwarded   in   custody   under
section 170 ”.
10. Their   Lordship   of   Gujarat   High   Court   also
noticed the Apex Court's decision in the case of Minu Kumari
Vs.   State of Bihar, (2006) 4 SCC 359.     The Apex Court
made following observations :
“ 12. The informant is not prejudicially
affected   when   the   Magistrate   decides   to
take cognizance and to proceed with the
case.     But where the Magistrate decides
that sufficient ground does not subsist for
proceeding   further   and   drops   the
proceeding or takes the view that there is
material for proceeding against some and
there are insufficient grounds in respect of

others, the informant would certainly be
prejudiced as the first information report
lodged   becomes   wholly   or   partially
ineffective.       This   Court   in   Bhagwant
Singh   Vs.  Commr.   Of  Police  [)1985)  2
SCC 537] held that where the Magistrate
decides not to take cognizance and to drop
the proceeding or takes a view that there
is   no   sufficient   ground   for   proceeding
against some of the persons mentioned in
the first information report, notice to the
informant   and   grant   of   opportunity   of
being   heard   in   the   matter   becomes
mandatory.   As indicated above, there is
no provision in the Code for issue of a
notice in that regard ”. 
11. After   considering   the   observation   of   the   Apex
Court in the case of Minu Kumari cited supra, their Lordship
of Gujarat High Court has observed as under :
“13. In view  in the case  of Bhagwant
Singh   (supra)   is   thus   reaffirmed.     The
Supreme   Court  has   dealt  with  cases   of
reports where  there is no sufficiency  of
evidence to justify forwarding of a case to
a Magistrate, which is termed variously

as   referred   charge   or   final   report   or
summary,   i.e.   a   situation   contemplated
under Section 169 of Cr.P.C.   It is also
observed that Section 173 in terms does
not refer to any notice to be given to raise
any protest to the report submitted by the
police.   The Court found that where the
Magistrate decides that sufficient ground
does   not   subsist   for   proceeding   further
and   drops   the   proceeding   or   takes   the
view that there is material for proceeding
against   some  and   there  are  insufficient
grounds in respect of others, which is a
situation contemplated under Section 169
of Cr.P.C., the informant would certainly
be   prejudiced   as   the   first   information
report lodged by him becomes wholly or
partially ineffective ”.
12. I   am   in   complete   agreement   with   the
observations   of   their   Lordship   of   Gujarat   High   Court.
Therefore,   in   my   opinion   also,   it   is   mandatory   that   the
learned Magistrate is under obligation to hear first informant
before   accepting   the   discharge   as   submitted   by   the
Investigating   Officer   u/s   169   of   the   Code   of   Criminal
Procedure.  

13. In that view of the matter, the order passed by
the learned Judicial Magistrate First Class, Kandhar, district
Nanded dated 24/06/2002 in F.I.R. No. 159/2000 is hereby
set aside.   The matter is remanded to the learned Magistrate.
The learned Magistrate is directed to take decision on the
report of the Investigating Officer afresh after giving notice
and hearing to the first informant.  
14. Rule is made absolute. 
     

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