Hardev Singh Sandhu Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
criminal procedure code - protest petition filed by complainant--report made under section 169 by s.h.o. after investigation--complainant wants to be heard on whether report under section 169 be accepted or not--held, both parties be heard to do justice--hearing be confined to point;if a protest petition is lodged by the complainant and he wants to be heard on the question as to whether the report under section 169 of the criminal procedure code should be accepted or not, if the persons who are accused of an offence and in whose favour after investigation, the police files report under section 169 cr.pc, if they want to be heard, the magistrate has a discretion to hear them, rather he should hear them in order to do justice to both the parties. but the hearing is to be confined to the point as to whether the report under section 169 of the code of criminal procedure is to be accepted or not and to no further.;application dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - gupta and others under various sections of the penal code like 284, 307, 326, 328, 418, 440, 467, 491 read with section 34 of the i. as a result of the investigation, the police recommended that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the magistrate.ordermahendra bhushan sharma, j.1. in this application under section 482, cr. p.c. a question is involved as to whether, if under after investigation a report under section 169, cr. p.c. is made by the station house officer of a police station and a protest petition is filed by the complainant, whether the person who is accused of an offence and against whom the police have found that there are no reasons to proceed, has a right of taking part in the proceedings or not?2. the facts are not very much disputed and lie in a narrow compass, a complaint was filed by shri sardar hardeo singh sandhu, advocate, who has personally argued this case before me. the said complaint was filed against dr. s. m. gupta and others under various sections of the penal code like 284, 307, 326, 328, 418, 440, 467, 491 read with section 34 of the i.p.c. it relates to some acts of negligence, omission or commission, attributed to the accused persons in conducting operation upon the complainant shri h. s. sandhu, advocate, and giving treatment to him. the learned magistrate forwarded the said complaint under section 156(3) of the criminal p.c. to the police station, sardarpura, jodhpur, wherein police registered a case, f.i.r. no. 171/84. after investigation, the s.h.o. of the said police station lodged the report under section 169 of the criminal p.c. to the court of judicial magistrate no. 2, jodhpur and that report is known as final report in this part. as a result of the investigation, the police recommended that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the magistrate. it appears that before the report came up for consideration before the learned magistrate, a protest petition was filed by the complainant sardar hardeo singh sandhu. at that stage, shri arun gupta, advocate, who is said to be the son of dr. s. m. gupta, one of the accused-persons put in appearance and sought the permission of the court to participate in the proceedings. under the impugned order, the learned magistrate allowed the said petitioner to participate in the proceedings relating to the protest petition.3. the contention of the complainant, the learned advocate, is that the law is settled by the highest court of the land, that at the stage of enquiry under sections 200 and 202 of the criminal p.c. a person who is suspected of the commission of the offence and against whom an inquiry is being made to arrive at the conclusion as to whether cognizance of an offence against him should be taken or not and a process should be issued or not, has no right of hearing. in support of this submission, the learned advocate has placed reliance on the case of chandra deo singh v. prokash chandra : [1964]1scr639 which was relied on in budhi prakash v. k. c. sharma, 1981 cri lj 993 (punj & har). in the case of chandra deo (supra), their lordships of the supreme court have reviewed the entire scheme contained in chapter xvi of the criminal p.c. and have held that an accused person does not come into the picture at all till process is issued. this does not mean that he is precluded from being present when an enquiry is held by a magistrate. he may remain present either in person or through a counsel or agent with a view to be informed of what is going on. but since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the magistrate any jurisdiction to permit him to do so. the aforesaid observations of their lordships of the supreme court were quoted in budhi prakash's case (supra) of the punjab and haryana high court and it was held that the accused persons high officers of the government of india have no right to join enquiry.4. it may be stated here that the present one is not a case of that nature. here, in this case, no inquiry was being made by the magistrate under section 202 of the criminal p.c. when a report under section 169 of the criminal p.c. had been submitted by the s.h.o, police station, sardarpura, and when it was due for consideration by the learned magistrate, as to whether he should accept it or not a protest petition was filed by the complainant. the complainant wants to be heard on the question as to whether the report under section 169 of the criminal p.c. should be accepted or not. in the said report, as already stated earlier, after investigation, it appeared to the officer-in-charge of the police station, sardarpura that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding the accused to the magistrate. an application was filed on behalf of the accused persons that when the protest petition is considered, he too should be allowed to participate. the learned magistrate placed reliance on a case of this court, reported in suraj prakash v. shiv shanker 1980 cri lr (raj) 676 and allowed the accused persons to take part in the proceedings.5. when a protest petition is lodged and the complainant wants to be heard in support of the protest petition, if the accused persons want to join the proceedings, to put them at par with the complainant and to comply with the principles of natural justice, if the learned magistrate allows the accused to participate in the proceedings, it cannot be said that the order of the learned magistrate is erroneous or calls for any interference. there is no provision in the criminal p.c. to file a protest petition by the informant who lodged the first information, but such has been the practice. that apart, the supreme court of india in bhagwant singh v. commr. of police : 1985crilj1521 has held that if the magistrate decides not to take cognizance of offence or drop proceedings against some persons mentioned in the first information report, he must give notice and hear first informant. no doubt, the supreme court has held in chandra deo's case 1963 (2) cri lj 397 (supra) that the accused can watch but not take part in the inquiry, but i am of the opinion that those cases will stand on a different footing than the cases in which a protest petition is lodged on a report under section 169 of the criminal p.c. having been filed to the magistrate by the s.h.o. after investigation. in such a case, if a protest petition is lodged by the complainant and he wants to be heard on the question as to whether the report under section 169 of the criminal p.c. should be accepted or not, if the persons who are accused of an offence and in whose favour after investigation, the police file report under section 169, cr. p.c. if they want to be heard, the magistrate has a discretion to hear them, rather he should hear them in order to do justice to both the parties. but the hearing is to be confined to the point as to whether the report under section 169 of the criminal p.c. is to be accepted or not and to no further.6. in the result, this application under section 482, cr. p.c. is dismissed.

Judgment:
ORDER

Mahendra Bhushan Sharma, J.

1. In this application under Section 482, Cr. P.C. a question is involved as to whether, if under after investigation a report under Section 169, Cr. P.C. is made by the Station House Officer of a police station and a protest petition is filed by the complainant, whether the person who is accused of an offence and against whom the police have found that there are no reasons to proceed, has a right of taking part in the proceedings or not?

2. The facts are not very much disputed and lie in a narrow compass, A complaint was filed by Shri Sardar Hardeo Singh Sandhu, Advocate, who has personally argued this case before me. The said complaint was filed against Dr. S. M. Gupta and others under various Sections of the Penal Code like 284, 307, 326, 328, 418, 440, 467, 491 read with Section 34 of the I.P.C. It relates to some acts of negligence, omission or commission, attributed to the accused persons in conducting operation upon the complainant Shri H. S. Sandhu, Advocate, and giving treatment to him. The learned Magistrate forwarded the said complaint under Section 156(3) of the Criminal P.C. to the police station, Sardarpura, Jodhpur, wherein police registered a case, F.I.R. No. 171/84. After investigation, the S.H.O. of the said police station lodged the report under Section 169 of the Criminal P.C. to the Court of Judicial Magistrate No. 2, Jodhpur and that report is known as final report in this part. As a result of the investigation, the police recommended that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the Magistrate. It appears that before the report came up for consideration before the learned Magistrate, a protest petition was filed by the complainant Sardar Hardeo Singh Sandhu. At that stage, Shri Arun Gupta, Advocate, who is said to be the son of Dr. S. M. Gupta, one of the accused-persons put in appearance and sought the permission of the Court to participate in the proceedings. Under the impugned order, the learned Magistrate allowed the said petitioner to participate in the proceedings relating to the protest petition.

3. The contention of the complainant, the learned Advocate, is that the law is settled by the Highest Court of the land, that at the stage of enquiry under Sections 200 and 202 of the Criminal P.C. a person who is suspected of the commission of the offence and against whom an inquiry is being made to arrive at the conclusion as to whether cognizance of an offence against him should be taken or not and a process should be issued or not, has no right of hearing. In support of this submission, the learned Advocate has placed reliance on the case of Chandra Deo Singh v. Prokash Chandra : [1964]1SCR639 which was relied on in Budhi Prakash v. K. C. Sharma, 1981 Cri LJ 993 (Punj & Har). In the case of Chandra Deo (supra), their Lordships of the Supreme Court have reviewed the entire scheme contained in Chapter XVI of the Criminal P.C. and have held that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. The aforesaid observations of their Lordships of the Supreme Court were quoted in Budhi Prakash's case (supra) of the Punjab and Haryana High Court and it was held that the accused persons high officers of the Government of India have no right to join enquiry.

4. It may be stated here that the present one is not a case of that nature. Here, in this case, no inquiry was being made by the Magistrate under Section 202 of the Criminal P.C. When a report under Section 169 of the Criminal P.C. had been submitted by the S.H.O, police station, Sardarpura, and when it was due for consideration by the learned Magistrate, as to whether he should accept it or not a protest petition was filed by the complainant. The complainant wants to be heard on the question as to whether the report under Section 169 of the Criminal P.C. should be accepted or not. In the said report, as already stated earlier, after investigation, it appeared to the Officer-in-Charge of the police station, Sardarpura that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding the accused to the Magistrate. An application was filed on behalf of the accused persons that when the protest petition is considered, he too should be allowed to participate. The learned Magistrate placed reliance on a case of this Court, reported in Suraj Prakash v. Shiv Shanker 1980 Cri LR (Raj) 676 and allowed the accused persons to take part in the proceedings.

5. When a protest petition is lodged and the complainant wants to be heard in support of the protest petition, if the accused persons want to join the proceedings, to put them at par with the complainant and to comply with the principles of natural justice, if the learned Magistrate allows the accused to participate in the proceedings, it cannot be said that the order of the learned Magistrate is erroneous or calls for any interference. There is no provision in the Criminal P.C. to file a protest petition by the informant who lodged the first information, but such has been the practice. That apart, the Supreme Court of India in Bhagwant Singh v. Commr. of Police : 1985CriLJ1521 has held that if the Magistrate decides not to take cognizance of offence or drop proceedings against some persons mentioned in the first information report, he must give notice and hear first informant. No doubt, the Supreme Court has held in Chandra Deo's case 1963 (2) Cri LJ 397 (supra) that the accused can watch but not take part in the inquiry, but I am of the opinion that those cases will stand on a different footing than the cases in which a protest petition is lodged on a report under Section 169 of the Criminal P.C. having been filed to the Magistrate by the S.H.O. after investigation. In such a case, if a protest petition is lodged by the complainant and he wants to be heard on the question as to whether the report under Section 169 of the Criminal P.C. should be accepted or not, if the persons who are accused of an offence and in whose favour after investigation, the police file report under Section 169, Cr. P.C. if they want to be heard, the Magistrate has a discretion to hear them, rather he should hear them in order to do justice to both the parties. But the hearing is to be confined to the point as to whether the report under Section 169 of the Criminal P.C. is to be accepted or not and to no further.

6. In the result, this application under Section 482, Cr. P.C. is dismissed.