Sunday, 12 July 2020

Whether magistrate should issue a warrant for securing the presence of complainant if the police have filed a closure report in the case?

The said Magistrate summoned the Petitioner who showed his inability to appear on the due date as per the endorsement made in the summons and prayed for adjournment. However, the learned Magistrate issued bailable warrants to secure his presence as a complainant for consideration of cancellation of the First Information Report. The Petitioner again showed his inability to appear on the due date because of his cases having been listed for hearing in the High Court. Now, the learned Additional Chief Judicial Magistrate has issued non-bailable warrants against the Petitioner to secure his presence for 4.10.2002. It is claimed by the Petitioner that he is no more interested in the First Information Report and he himself is not the offender, therefore, the learned Additional Chief Judicial Magistrate, Arki has no jurisdiction to force his appearance as a complainant/informant in the Court, in a case in which the police has submitted a cancellation report.

3. I have heard the learned Counsel for the Petitioner and the learned Law Officer for the State.

4. There is no dispute that on the basis of the First Information Report lodged by the Petitioner the investigating agency has filed a cancellation report. As and when such a report is submitted by the police, the Magistrate is required to give a notice to the complainant/informant with a view to afford him an opportunity of being heard before passing final orders on such report. In case despite service of notice the complainant/informant does not appear to oppose the cancellation report submitted by the Police, it is not necessary for the Magistrate, to issue fresh process to the complainant/ informant to ensure his presence. Non-appearance of the complainant/informant despite service of notice in such a case will have the legal consequence of the Magistrate proceeding to pass appropriate orders on the cancellation report in the absence of the complainant/informant. The Magistrate has no power to compel the appearance of the complainant/informant who has failed to appear to oppose a cancellation report after due notice. It is implicit in the non-appearance of the complainant/ informant that he is not interested in opposing the cancellation report and the Magistrate may pass appropriate order as may be warranted by the material placed before him. Thus having once notified the Petitioner of the cancellation report and having given him the option to appear and oppose the cancellation report, if so desired, the learned Additional Chief Judicial Magistrate has no jurisdiction to force the appearance of the Petitioner by issue of coercive processes. His insistence to secure presence of the Petitioner by issue of coercive processes is, therefore, abuse of the process of the Court and the course of action as adopted by the learned Additional Chief Judicial Magistrate cannot be sustained.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. M.M.O. No. 65 of 2002

Decided On: 25.09.2002

Rakeshwar Lal Sood  Vs.  State of H.P.

Hon'ble Judges/Coram:
M.R. Verma, J.

Citation: MANU/HP/0179/2002,



1. This petition Under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India has been preferred by the Petitioner for quashing of non-bailable warrants issued by the learned Additional Chief Judicial Magistrate, Arki in Case FIR No. 62 of 1997 titled State v. Ram Lal, Under Section 279 of the Indian Penal Code and for issue of appropriate directions.

2. Brief facts leading to the presentation of this petition are that some time in the year 1997 a Taxi, driven by one Ram Lal, dashed against the Car in which the Petitioner was travelling within the local limits of Police Station, Arki. The Petitioner lodged the First Information Report about the occurrence in Police Station, Arki. After investigation, the police has filed cancellation report in the Court of the learned Additional Chief Judicial Magistrate, Arki. The said Magistrate summoned the Petitioner who showed his inability to appear on the due date as per the endorsement made in the summons and prayed for adjournment. However, the learned Magistrate issued bailable warrants to secure his presence as a complainant for consideration of cancellation of the First Information Report. The Petitioner again showed his inability to appear on the due date because of his cases having been listed for hearing in the High Court. Now, the learned Additional Chief Judicial Magistrate has issued non-bailable warrants against the Petitioner to secure his presence for 4.10.2002. It is claimed by the Petitioner that he is no more interested in the First Information Report and he himself is not the offender, therefore, the learned Additional Chief Judicial Magistrate, Arki has no jurisdiction to force his appearance as a complainant/informant in the Court, in a case in which the police has submitted a cancellation report.

3. I have heard the learned Counsel for the Petitioner and the learned Law Officer for the State.

4. There is no dispute that on the basis of the First Information Report lodged by the Petitioner the investigating agency has filed a cancellation report. As and when such a report is submitted by the police, the Magistrate is required to give a notice to the complainant/informant with a view to afford him an opportunity of being heard before passing final orders on such report. In case despite service of notice the complainant/informant does not appear to oppose the cancellation report submitted by the Police, it is not necessary for the Magistrate, to issue fresh process to the complainant/ informant to ensure his presence. Non-appearance of the complainant/informant despite service of notice in such a case will have the legal consequence of the Magistrate proceeding to pass appropriate orders on the cancellation report in the absence of the complainant/informant. The Magistrate has no power to compel the appearance of the complainant/informant who has failed to appear to oppose a cancellation report after due notice. It is implicit in the non-appearance of the complainant/ informant that he is not interested in opposing the cancellation report and the Magistrate may pass appropriate order as may be warranted by the material placed before him. Thus having once notified the Petitioner of the cancellation report and having given him the option to appear and oppose the cancellation report, if so desired, the learned Additional Chief Judicial Magistrate has no jurisdiction to force the appearance of the Petitioner by issue of coercive processes. His insistence to secure presence of the Petitioner by issue of coercive processes is, therefore, abuse of the process of the Court and the course of action as adopted by the learned Additional Chief Judicial Magistrate cannot be sustained.

5. As a result, this petition is allowed and the order directing issue of non-bailable warrants against the Petitioner by the learned Additional Chief Judicial Magistrate in case FIR No. 62 of 1997 for 4.10.2002 and the consequential non-bailable warrant issued against the Petitioner is quashed and the learned Additional Chief Judicial Magistrate is directed to dispose of the cancellation report without insisting on securing the presence of the Petitioner.

Dasti copy, as prayed for, on usual terms.




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