Whether Magistrate can grant B Summary report without giving notice and hearing informant?

The impugned order does not show that, any notice was given to the informant before accepting the proposal by the investigating officer. It has been held in Bhagwant Singh's case (Supra) as under;

"In a case where the Magistrate to whom a report is forwarded under sub-sec. (2) of S. 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 information and provide him an opportunity to be heard at the time of consideration of the report. However, either from the provisions of the Criminal P.C. Or from the principles of natural justice, no obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report can be spelt out, unless such person is the informant who has lodged the F.I.R. But, even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report."

"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 recognized by the provisions contained in sub-sec. (2) of S. 154, sub-sec. (2) of S. 157 and sub-sec. (2) (ii) of S. 173 in that the officer of the police station has under S. 157 (2) to notify the fact to the first informant that he is not going to investigate the case or cause it to be investigated and under S. 173 (2) (ii), the said officer is obligated to communicate to the informant the action taken by him and the report forwarded by him to the Magistrate, 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 S. 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."

{Para 8}

9. Further this Court had set aside the order of discharging accused without giving notice and hearing informant. Thus the legal position as has been enumerated in Bhagwant Sing, Gangadhar Mhatre and Abhinandan Zha ought to have been followed by the learned Magistrate. Therefore, the said order is required to be set aside and the matter is required to be relegated to the Judicial Magistrate First Class to be dealt with according to the above said authorities.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 1264 of 2018

Decided On: 06.08.2018

Saleha Kausar Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation:  MANU/MH/2377/2018.

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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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Whether the court must hear the accused in hearing for the issue of B summary report by investigating officer?

In my opinion, the Respondent No.2 had no  locus­ standi  to 
participate in the proceedings that would take place before the Magistrate 
for deciding whether or not to accept ‘B’ summary report.   The reason is 
obvious.  It is well settled that until a formal accusation is levelled against 
an accused, or until a decision to proceed against the him is taken, the 
accused would not have any say in the matter.   It would not be for the 
accused   to   appear   before   the   Court   and   contend   that   the   proceedings 
against him should not be initiated, when the Court is yet undecided, as to 

whether such proceedings should be initiated or not.  The reason why the 
first informant needs to be heard when a ‘B’ summary report is filed, is 
obvious.  It is because the the report of the investigating agency is adverse 
to the claims and contentions of the first informant.   Fairness, therefore, 
requires that he should be given an opportunity of being heard and to point 
out  how  the conclusion arrived at by the investigating agency is wrong. 

The   case  of   the   accused  at   that  stage,   would  be   totally  different.     The 
investigating agency having already come to a conclusion, which is in his 
favour, the contest would be between the investigating agency and the first 
informant.  It is the first informant who is aggrieved by the decision of the 
investigating   agency   and   it   is   therefore   that   he   is   required   to   be   heard 
before the conclusion arrived at by the investigating agency, is accepted. 
The accused is not at all aggrieved by the filing of a ‘B’ summary report. 
Therefore, there would be no parity between him and the first informant. 
Merely because the first informant is required to be heard, at that stage, 
the accused cannot claim that he also should be heard.  The position of the 
accused   in   such   a   case   would   be   totally   different   from   that   of   the   first 
informant and therefore, on the view that since the first informant is to be  

heard, principles of natural justice require that the accused should also be  
heard, cannot be accepted.
In my opinion, the order passed by the Magistrate, which was 
based only on the decision as aforesaid of the Rajasthan High Court in the 
case of  Hardev Singh Sandhu (supra), which decision was not followed, 

even by the same High Court subsequently, needs to be interfered with. 
The learned Additional Sessions Judge has also placed reliance only on 
the said decision of the Rajasthan High Court, without noticing the decision 
of   the   Supreme   Court   in  Chandra   Deo   Singh   Vs.   Prakash   Chandra  
Bose alias Chabi Bose and another, AIR 1963 Supreme Court 1430. 
From   the   observations   made   by   their   Lordships   in   the   said   reported 
judgment, the principle that an accused cannot have any right to participate  
in any proceedings, which are taking place before it is decided that the  
accused should be proceeded against,  can be deduced.   The position of 
law   that  till   a   Magistrate   decides   to   proceed   against   an   accused,   the  
accused should have no say in the proceedings which take place before  
such a decision by a Magistrate is arrived at, seems to be well settled.  In 
the light of this position, simply on the ground that the first informant is 

being given a hearing in the matter, it would not be proper to give hearing 
to an accused. 

THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION

CRIMINAL WRIT PETITION NO.  732  OF  2011

Gopal Bhagwan Sonar, V  The State of Maharashtra,

­­­­­
CORAM  : ABHAY M. THIPSAY, J.
DATE      : 26th  September, 2013. 
Citation;2014 CRLJ(NOC)453 Bom

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