- (1.) Learned counsel for the applicants is present. Learned counsel for the opposite party is found absent at the time of hearing. This matter is pending since 1982 and it has not been admitted as yet. Since intricate question of law is involved, the hearing is taken up to see whether the application is maintainable ex facie before the eye of law.
(2.) The fact which is for consideration of the present application, is that the opposite party No. 1 lodged one first information report on 23-5-1982 under Section 395/397, I.P.C. naming the applicants and 22 others as accused with the allegation that in between the night of 22/23-5-1982 the accused persons removed the goods by demolishing the boundary wall of the house of the complainant. A case was registered but the Investigating Officer after investigation submitted a final report. On 7-6-1982 the opposite party No. 1 filed a protest petition with the allegation that the final report has been submitted without proper investigation and as such it should not be accepted and sent back for re-investigation. The Chief Judicial Magistrate, Moradabad, by an order dated 30-6-1982 refused to accept the final report and observed that though no offence is made out under Sections 395/397, I.P.C. In the absence of any motive or intention to commit the dacoity, a prima facie case under Sections 147/148/427/447 and 379, I.P.C. was made out and issued process against the accused-applicants under the aforesaid Sections and fixed 2-8-1982 for further orders. This is subject-matter of the grievance.
(3.) The learned counsel has submitted that this order was passed by the Magistrate without issuing any notice to the applicants for giving an opportunity of hearing to them. So according to him the principles of natural justice have been violated and the order becomes illegal. He has referred the case of Gajendra Kumar Agarwal v. State of U.P. reported in 1994 All Cri C 341. Referring the case of Bhagwant Singh v. Commissioner of Police reported in 1985 All Cri C 246 : 1985 Cri LJ 1521 : AIR 1985 SC 1285 (SC). The learned Judge of the single Bench held that though there is no statutory provision that before rejecting the final report the Magistrate must hear the accused, but when in the absence of similar provision the complainant is being heard before accepting the final report, as held in the decision of Bhagwan Das v. State (1988 All Cri C 571) : AIR 1989 NOC 83 the said opportunity should also be given to the accused while rejecting the final report and before issuing the process. In that decision some cases have also been referred showing that it is violative of natural justice vis-a-vis the provision of Arts. 14 and 21 of the Constitution.;