Palok Basu - (1.) TO me it appears that the controversy in the instant case has to be interpreted keeping in view the observations of the Hon'ble the Supreme Court in Bhagwant Singh's case, reported in 1986 ACrR 26=1986 AWC 26. It may be useful to narrate here the controversy in brief which I formulate as under : " Will it be legal, and if yes, then what will be the procedure to be followed in cases where, after investigating an FIR, the Investigating Officer, files a Final Report and the informant challenges the said Final Report by filing a protest petition and affidavits before the Magistrate who then takes cognizance and summons the accused ? " Facts lie in a very narrow compass. Bhagwan Das and two others are the named accused in the FIR lodged under section 307 IPC giving rise to Case Crime No. 209/1986, P. S. Karchnana, district Allahabad. Informant Hari Mohan Misra was hit by country made pistols fired at by Bhagwan Das and Amarnath accused at the instigation of Rama Shankar accused. Many witnesses saw the incident. FIR was dictated to the cousin brother Mahendra Prasad Misra by the victim Hari Mohan Misra, whereafter he was medically examined. This FIR was investigated and ultimately a report was submitted by the Investigating Officer saying that the case was dependant only upon the partisan witnesses' testimony and appears concocted and, therefore, a Final Report was being sent which may be kindly accepted. (By the words Final Report I mean a report sent by the Investigating Officer that there is no offence made out against the accused). When the Final Report did reach the court, a protest petition was filed by the informant alongwith affidavits of three witnesses. It was prayed that Final Report which was the outcome of political pressure and malafides be rejected, cognizance of the offence be taken and the accused be proceeded with in accordance with law. By an order dated 3-4-1987, the concerned magistrate, proceeded to pass an order, an English translation of which will read as follows : " Parties are present. Heard learned counsel for the applicant and the public prosecutor, and perused FIR and the affidavits filed by the applicant and the witnesses through which a charge under section 307 IPC has been levelled against the accused. In view of the averments of the informant and the witnesses the final report forwarded regarding the accused is hereby rejected. Register the case and let accused Rama Shanker, Bhagwan Das and Amarnath be summond for 25/26th. Sd/-Illegiblc Magistrate. "
(2.) SO long as the judgment in Bhagwant Singh's case was not there it was not incumbent upon the Magistrate, to issue notice to the informant or hear the relatives of the deceased or the victim in case they appeared and opposed the acceptance of the final report forwarded by an Investigating Officer. No such choice now left with magistrate, Law of the land as declared by the Supreme Court is binding upon all courts in view of Article 141 of the Constitution of India. Therefore, the law as laid down in Bhagwant Singh's case that the informant must be given notice and heard before a final report sent by the Investigating Officer having investigated the said FIR is accepted, has to be obeyed by the courts. Before referring to the other decisions cited and the arguments raised at the Bar, the primary question to be decided is what will happen after notice is issued to the informant ? I am not making a distinction between an informant who appears after notice by the magistrate and one who voluntarily appears knowing about the final report because in either case his right of opposing the acceptance of the final report remains the same in view of the law laid down in Bhagwant Singh's case. Therein the Supreme Court dealt with the question as to when cognizance may be said to have been taken and what are the courses open to a magistrate, once a report under sub-section (2) (i) (d) of section 173 CrPC comes up before the Magistrate. Towards the close of the discussions, it has been laid down that where a magistrate " decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate, must give notice to the informant and provide him an opportunity to be heard, at the time of consideration of the report......" (The other contingencies discussed therein are being omitted as they are not relevant here). While hearing the informant, what precisely the magistrate is expected to do. The answer will go a long way in resolving the controversy noted by me above. I. Should the magistrate only hear the informant orally ? II. Should the magistrate permit the informant to produce application, affidavit and materials ? III. Should the magistrate record informant's statement on oath or without oath ?
(3.) ALLIED question, which then arises is that when first or the second or both out of the aforesaid three contingencies is or are resorted to, is the magistrate bound to follow procedure for the complaint cases ? Answer has to be emphatic 'NO'. While laying down the law in Bhagwant Singh's case the right of the informant was being considered only as an informant and not as a complainant. It was even then known to all that where investigation has culminated in favour of the accused, the right of the informant (or the aggrieved person) to file a complaint before the magistrate remained intact. But filing of a complaint by the informant after acceptance of the final report by the magistrate is an entirely different thing, than when the informant is permitted to raise objections before the magistrate accepts the final report praying that the accused be proceeded with on the police report in accordance with law. The Hon'ble Supreme Court never appears to have desired that in such a case an informant should be asked to shoulder the burden of a complainant even though the Final Report deserves rejection.;