Bombay HC: Magistrate must hear first informant before accepting the discharge report submitted by Investigating Officer u/s. 169 of CRPC

 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". {Para 11}

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.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 205 of 2002

Decided On: 04.02.2015

Maroti Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.M. Deshpande, J.

Citation: 2015 (4) Bom.C.R. (Cri) 504,MANU/MH/0871/2015.

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Whether police should file final report if they discharge some of accused under S 169 of CRPC?

 From the aforesaid provisions and the principles laid down by the Apex Court, it is clear that release of the accused under Section 169 of Cr.P.C. cannot be equated with filing a report under Section 173 Cr.P.C., which has to be filed after completion of investigation. In fact, Section 169 Cr.P.C. does not contemplate filing of such report. All that Section 169 Cr.P.C. stipulates is the release of the accused upon taking bonds (with or without surety) to appear before the Magistrate when so required, when there is no sufficient material to send the accused for trial. Whether the accused is released on bonds under Section 169 Cr.P.C. and sent for trial under Section 170 Cr.P.C., upon completion of investigation the police officer has to submit the report under Section 173 Cr.P.C. which would include a charge-sheet under Rule 218 and a final report under Rule 219 of Bombay Police Manual. It is only upon filing of the report under Section 173 which would include final report under Rule 219 of Bombay Police Manual, that the Magistrate has to either agree with the report and discharge the bond, or not agree with the police report and order further investigation, or in the alternative take cognizance of the offence complained of. In the light of above provisions and principles, the procedure allegedly followed by the investigating agency in submitting the closure report under Section 169 of Cr.P.C. against the aforesaid petitioners is apparently not in consonance with the provisions of law.

IN THE HIGH COURT OF BOMBAY

Writ petition No. 599 of 2014

Decided On: 05.05.2017

 Shahnaj Taj. Mohd. Hashmi a Vs. Senior Inspector of Police 

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Anuja Prabhudessai, JJ.

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When it is not necessary to conduct inquiry for summoning additional accused U/S 319 of CRPC?

The second submission of the learned Counsel is that an inquiry ought to be conducted, in light of the Constitution Bench judgment in Hardeep Singh v. State of Punjab & Ors. (supra). He relied on para 109 of the said judgment, which reads thus :

"109. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr. P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C."

15. Learned P.P has rightly submitted that the question of inquiry would arise where an accused has been discharged by a Court of competent jurisdiction. Admittedly, in the present case, the applicants were discharged under Section 169 Cr. P.C. It is pertinent to note, that right from the inception, i.e. from the time the FIR was lodged, the respondent No. 2 has specifically named the applicants. The respondent No. 2 is an eye-witness. Even in his evidence i.e. examination-in-chief, he has named the applicants as the perpetrators of the crime. According to Section 300(5) Cr. P. C., a person discharged under Section 258 Cr. P.C shall not be tried again for the same offence, except with the consent of the Court, by which, he was discharged or any other Court to which the first mentioned Court is subordinate. Section 398 Cr.P.C provides that the High Court or the Sessions Judge, may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make an inquiry into the case against any person, who has already been discharged. In the present case, admittedly, the applicants have been discharged under Section 169 Cr. P. C and not by a Court of competent jurisdiction and therefore, the question of inquiry does not arise.

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 1077 of 2016

Decided On: 21.09.2016

Kishan Govind Patil and Ors.
Vs.
 State of Maharashtra and Ors.

Coram:Revati Mohite Dere, J.

Citation: 2016 ALLMR(CRI)5116

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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

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Supreme Court: Magistrate can not direct police to file chargesheet

If the report is of the action taken under s. 169, then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under s. 156(3) to make a further investigation. If the police, after further investigation submit a charge-sheet, the magistrate may follow the procedure where the charge-sheet under s. 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the magistrate may agree or disagree with it. Where he agrees, the case against the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he can take cognizance under s. 190(1)(c). The provision in s. 169 enabling the Police to take a bond for the appearance of the accused before a magistrate if so required, is to meet such a contingency of the magistrate taking cognizance of the offence notwithstanding the contrary opinion of the police. The power under s. 190(1)(c) was intended to Secure that 

offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or he police either wantonly or through a bona, fide error do not submit a charge-sheet. But the magistrate cannot direct the Police to submit a charge- sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate. The magistrate, if he disagrees with the report of the police, can. himself take cognizance of the offence under s. 19O(1)(a) or (c), but, be cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion

Supreme Court of India

Abhinandan Jha & Ors vs Dinesh Mishra on 17 April, 1967

Hon'ble Judges/Coram:
C.A. Vaidialingam and M. Hidayatullah, JJ

Citations: 1968 AIR 117, 1967 SCR (3) 668

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