- (1.) N. B. Asthana, J. This revision has been directed against the order dated 22-5-1993, passed by then Additional Chief Metropolitan Magistrate, Kanpur in case Crime No. 454 of 1992 under Sections 147, 323, 324 and 307 I. P. C.
(2.) FROM the record it would appear that in the aforesaid case crime number the police submitted a final report. This final report was not accepted by the court below as the first informant had filed a protest petition and vide order dated 22-5-1993 the learned Magistrate summoned the revi sionist for the offence punishable under Sections 323, 324 and 307, I. P. C. This first contention on behalf of the revisionist is that the order was passed by the trial Court without hearing him which is against the prin ciple of natural justice and as such the order should be quashed. Reliance in this connection has been placed upon Gajendra Kumar Agarwal v. State of U. P. , 1994 ACC 341: 1994 JIC 752 (All), in which it was held: "once a Final Report is submitted then before rejecting the same the accused should be heard because it may be that he may be able to persuade the Magistrate that the final report was justified and no case is made out against him. It will be unfair to hear only the person filing the protest petition but not the accused. Wheie a protest petition is filed against a final report in my opinion both the parties should be heard as that procedure would be fair to the accused and complainant and hence in accordance with the recent trend of the decisions of the Supreme Court (from Maneka Gandhi's case onwards) wherein the scope of Articles 14 and 21 of the Constitution has been greatly expanded, and it has been laid down that the procedure should be just, fair and reasonable. In my opinion once a final report is filed it is only fair and reasonable that the accused should be heard before rejecting the final report and taking cognizance. I do not mean to any that cognizance cannot be taken on the basis of the final report. " In Pratap and others v. State of U. P. and another, 1991 ACC 422 it was held that "when process is issued by a Magistrate to the person con cerned is not being condemned in any manner. The order issuing process does not adversely affect the accused. He is neither being convicted nor sentenced. He is merely being asked to face trial in a court of law. It can not be said that merely because process has been issued against a person a decision adversely affecting him has been taken. It cannot, therefore, be said that any principle of natural justice is infringed if the Magistrate issues process against a person without first affording him an opportunity. From the above ruling it would appear that no notice was necessary to be issued to the revisionists before the final report was rejected. In Bhagwant Singh v. Commissioner of Police, 1985 ACC 246. The informant complainant was to be heard before the final report was accepted. The Supreme Court did not give any direction for hearing the accused as well before the final report was rejected. If the argument of the learned counsel for the revisionist is taken to its logical and then perhaps no order can be passed against a person accused of any offence without hearing him and a pre-summoning hearing should be held in every case. This is not the intention of any law. The Code does not have any provision for pre-summoning hearing.
(3.) IT would further appear that in Criminal Misc. Application No. 6108 of 1988 Ramadhin Sharma and others v. State of U. P. and others final report was submitted by the investigating agency. The complainant placed a protest petition before the Court stating that the final report be not accepted. The accused coming to know of the said application moved the Court saying that since the investigating agency did not find anything against them the final report be not interfered with unless the accused are also heard. The learned Sessions Judge rejected the prayer of the accused and fixed a date for consideration of the final report. Against this order the aforesaid application under Section 482, Cr. P. C. was filed. The matter was referred to a Division Bench as the question involved was an important one. IT would thus appear that at the time the judgment in Gajendra Kumar Agarwal's case was passed it was not brought to the notice of the Court that the question is under consideration of a Division Bench. In the circumstances the revisionist cannot argue that he should also have been heard before any order was passed upon the final report and the protest petition. IT was also argued that the final report was properly submitted and the F. I. R. lodged against the revisionist was an after thought and without any substance. This Court while sitting in revision can not decide this question of fact. In K. M. Mathew v. State of Kerala and another, 1992 CLJ 3779: 1992 JIC 212 (SC), it was held by the Supreme Court that "it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satis fied on the consideration of proceedings if he is satisfied on the consideration of the complaint that there is no evidence for which the accused could be tried. It is judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceeding, if the complaint on the very fact of it does not disclose any evidence against the accused". It is, therefore, open to the revisionist to appear before the Court below, move application and place evidence to show that the final report submitted by the police was correct and no case for summoning them was made out.;