K V N KOTESWARA RAO Vs. P V KRISHNA PRASAD
HIGH COURT OF ANDHRA PRADESH
Click here to view full judgement.
(1.)This revision case has come up under the following circumstances : The petitioner filed a private complaint on the file of the Judicial I Class Magistrate, Chilakaluripet, Guntur District, against the respondents 1 and 2 under sections 120-B, 406, 409 and 420 r/w 34 IPC. The learned Magistrate referred the matter to the police for further investigation under section 156(3) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). It appears that the Police having enquired the matter referred the case as 'false'. Of course, it is the grievance of the petitioner that the police have not communicated a copy of the same to the petitioner as required under Section 173(2)(ii) of the Code. Later the learned Magistrate having accepted the final report given by the police closed the proceedings in R.C.S. No. 23/88 dated 13/12/1988. Of course, it is the further grievance of the petitioner that while passing the orders dated 13/12/1988 in R.C.S. No. 23/88 the Magistrate has not issued any notice to the petitioner to represent his case. Later having learnt about the final report in the matter, the petitioner preferred a protest petition before the learned Magistrate which was numbered as C.F.R. No. 17/89. Having heard the complainant, as per his orders dated March 10, 1989, the learned Magistrate held that that was a fit case for taking cognizance of the matter and consequently recorded the sworn statement of the petitioner who was the complainant and took cognizance of the case, and numbered the case as C.C. No. 82/89 on his file. Having learnt about the said proceedings respondent No. 1 who was arrayed as the first accused, filed Criminal Petition No. 566/90 under section 482 of the Code on the file of this court to quash the proceedings in C.C. No. 82/89 on the file of the learned Judicial I Class Magistrate, Chilakaluripet. Having heard Criminal Petition No. 566/90 this court passed the following order while allowing the criminal petition :
"For the foregoing reasons, I hold that the Magistrate has no power or jurisdiction to take cognisance of an offence on the basis of a private complaint that resulted in submission of the report under Section 173. Consequent upon reference under section 156(3) when once he has accepted the negative police report and issued proceedings closing the case. However, the aggrieved party is at liberty to take recourse to a revision or appeal as the case may be according to law."
(2.)In view of the said orders the revision petitioner filed the present revision to quash the orders dated 13/12/1988 in R.C.S. No. 23/88.
(3.)Sri Bali Reddy, the learned counsel appearing for the revision petitioner submits that as per Section 173(2)(ii) the Police Officer who has investigated into the matter as per Section 156(3) of the Code shall communicate the action taken by him in the matter in such manner as may be prescribed by the State Government, to his client but in this case his client was not informed about the matter being referred to as 'false' by the Police. The learned counsel for the petitioner further submits that principles of natural justice require that the complainant who has lodged the complaint, must be informed before any action was taken as to the result of the investigation under Section 156(3) of the Code, particularly when the learned Magistrate intends to drop further proceedings in the matter and to support his contention the learned counsel for the petitioner relies upon a decision of the Supreme Court reported in Bhagwant Singh v. Commr. of Police, AIR 1985 SC 1285 : (1985 Cri LJ 1521). Section 173(2)(ii) of the Code reads as follows :
"173. REPORT OF POLICE OFFICER ON COMPLETION OF INVESTIGATION :- 1. ------------ 2. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given."
Section 173(2)(ii) of the Code contemplates that as soon as the investigation was completed, the officer in charge of the police station shall forward to the Magistrate empowered to take cognizance of the offence, a report in the form prescribed by the State Government stating the various particulars mentioned therein. He shall also communicate in such manner as may be prescribed by the State Government the action taken by him, to the person if any, by whom the information relating to the commission of the offence was first given. Here in this case the law was set into motion by the revision petitioner filing a private complaint before the Magistrate and in view of the provisions of Section 173(2)(ii) the learned advocate appearing for the petitioner rightly submits that before taking further action in that matter, the complainant must be informed of the action taken by the police in the matter. Of Course, it is not in dispute that in accordance with the provisions of Section 173(2)(ii) no information was given to the complainant. Thus here is a case, as rightly submitted by the learned counsel the provisions of Section 173(2)(ii) are not (complied) for the reason that the complainant in the event of being informed about the action proposed to be taken he will be at liberty to file a protest petition and contest the matter. It is to be noted that in fact subsequently he filed such a petition on the basis of which the case was taken on file.
Copyright © Regent Computronics Pvt.Ltd.