Criminal Application [Apl] No.16 of 2012

3rd October, 2013

Petitioner Counsel: Mr. D.V. CHAUHAN
Respondent Counsel: Mr. V.A. THAKARE, Mr. N.S. KHANDEWALE

Cases Cited:
Bhagwant Singh Vs. Commissioner of Police and another, AIR 1985 SC 1285(1) [Para 5,8]
Union of Public Service Commission Vs. S. Papaiah and others, AIR 1997 SC 3876 [Para 5]
Gangadhar Janardan Mhatre Vs. State of Maharashtra and others, 2005 ALL MR (Cri) 281 (S.C.)=AIR 2004 SC 4753 (1) [Para 5]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. Heard finally by consent of parties.

2. The applicant-first informant of Crime No.250/2010 of Pratap Nagar Police Station, District-Nagpur, for offence under Section 420 r/w 34 of Indian Penal Code and under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, prays for exercising power under Section 482 of the Code of Criminal Procedure, for not issuing the process against respondent nos.3 to 6, upon the report under Section 173(2) of the Code of Criminal Procedure, filed by Pratap Nagar Police, after investigation of the said crime.

3. Mr. D.V. Chauhan, learned counsel for the applicant, urged that the prayer is founded on the count of there being failure of learned magistrate to hear the applicant-first informant at the time of passing the said order, by which, the prosecution was ordered to be commenced only against original accused no.1 i.e. respondent no. 3 and thereby impliedly not continuing the prosecution against respondent nos.4 to 6. It is submitted that the fact of respondent nos.4 to 6, being named in the first information report, in terms, denotes that the first informant had levelled the allegation of their involvement in the offence in question, upon which the first information report for the offence under Section 420 r/w 34 of Indian Penal Code and under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered.

4. Mr. Chauhan, learned counsel submitted that passing of such an order was undoubtfully adverse to the applicant, as thereby his say regarding involvement of respondent nos.4 to 6 was not accepted or in other words was negatived on the basis of report of investigation. It is submitted that since the law was set in motion upon the allegations levelled by the applicant against four accused mentioned in the first information report inclusive of respondent nos. 4 to 6, it was incumbent for the learned magistrate taking cognizance of the said offence to hear the applicant.

5. Mr. Chauhan, learned counsel, in support of the said submission, placed reliance upon the decisions of the Apex Court in the case of Bhagwant Singh .vs. Commissioner of Police and another, reported in AIR 1985 SC 1285(1) and lateron the decisions relying upon them in the case of Union of Public Service Commission .vs. S. Papaiah and others, reported in AIR 1997 SC 3876 and Gangadhar Janardan Mhatre .vs. State of Maharashtra and others, reported in AIR 2004 SC 4753 (1) : [2005 ALL MR (Cri) 281 (S.C.)]. The learned counsel submitted that the issue, as involved in the present application, was involved in a case of Bhagwant Singh (supra). It is contended, hence application be allowed and the part of the relevant order impliedly discontinuing or non-discontinuing the prosecution against respondent nos.4 to 6 be quashed and set aside and the matter be relegated back to the trial court i.e. Judicial Magistrate, First Class, Court No.9, Nagpur, for passing appropriate order, after giving the hearing to the applicant, as ruled in the said decision.

6. Mr. V.A. Thakare, learned Additional Public Prosecutor, after going to the decisions pointed out, has squarely stated that, as canvassed by the learned counsel for the applicant, the issue involved in the present application is no more res integra and the same being decided by said decisions referred. It is submitted, hence appropriate order be passed.

7. Mr. N.S. Khandewale, learned counsel for respondent nos.3 to 6, in all fairness, submitted that, in the instant case, the first informant was not heard before passing the part of order impugned in the present application. He also fairly conceded the legal position being as pointed out by the decisions relied.

8. The perusal of the decision in a case of Bhagwant Singh (supra) and so also the other decisions relied by the learned counsel for the applicant, reveals there being all force in the submission canvassed. The main decision, in the case of Bhagwant Singh (supra) reveals that it was incumbent upon the concerned court to give the applicant-complainant-informant an opportunity to be heard in the matter before passing order adverse to him or on the contrary to the allegations made by him in the first information report against respondent nos.4 to 6.

9. Having regard to the same, the relevant part of order qua accused nos.4 to 6 being not passed in accordance with the law, the same cannot be legally sustained. The said part of order i.e. implied part, is hereby quashed and set aside and the matter is relegated back to the Judicial Magistrate, First Class, Court No.9, Nagpur, for deciding the relevant question accordance with the law at the earliest and in any event within a period of three months from the date of receipt of copy of this order, after hearing concerned parties.

10. The application stands disposed of accordingly.

11. Rule is made absolute in the aforesaid terms.

Ordered accordingly.