IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.52755 of 2008 Ram Kusheshwar Singh @ Ram Kusheshwar Kumar, son of Ram Sagar Singh of Village-Hazipore, P.S. Barauni, District-Begusarai……………………………….Petitioner. Versus The State Of Bihar………………………..Opposite Party. ---------------------------------- For the Petitioner: Mrs. Indu Kumari Sinha, Advocate. For the State : Dr. Mayanand Jha, A.P.P. ------------------------------------- O R D E R 2. 5.09.2011. This application, under Section 482 of the Code of Criminal Procedure, has been preferred for quashing the order dated 26.2.2008 passed by the Additional Sessions Judge, Fast Track Court No.III, Begusarai, in Criminal Revision No.560 of 2003, whereby the Additional Sessions Judge, Fast Track Court dismissed the above Criminal Revision petition of the petitioner filed against the order dated 15.9.2003 of the Chief Judicial Magistrate, Begusarai, taking cognizance of the offence under Section 182 and 211 of the Indian Penal Code and order dated 20.9.2003 passed by Sri M.K. Singh, Judicial Magistrate, 2nd Class, Begusarai, issuing summon against the petitioner, in 2 Barauni P.S. Non F.I.R. No.1 of 2003. 2. The brief facts, leading to the present application, is that the petitioner, Ram Kusheshwar Singh alias Ram Kusheshwar Kumar, filed the complaint petition numbered as 719 (C) of 2003 in the court of the Chief Judicial Magistrate, Begusarai, regarding the occurrence having taken place on 29.5.2003. The Chief Judicial Magistrate sent the complaint petition under Section 156 (3) of the Code of Criminal Procedure for investigation by the police. Accordingly, Barauni P.S. Case No.247 of 2003 was registered on 16.7.2003 under Sections 341, 323, 379 and 504/34 of the Indian Penal Code against five accused, namely, Suvaran Singh, Suresh Singh, Shankar Singh, Jawahar Kumar and Mukesh Kumar. After investigation, the police submitted final form dated 31.7.2003 in the court of the Chief Judicial Magistrate finding the case untrue with report numbered as Barauni P.S. Non F.I.R. No.1 of 2003 to proceed against the complainant/informant/petitioner under Sections 182 and 211 of the Indian Penal Code. The Chief Judicial Magistrate, thereafter, on perusal of the report of the police numbered as Barauni P.S. Non F.I.R. No.1 of 2003 took the cognizance of the offences under Sections 182 and 211 of the Indian Penal 3 Code against the petitioner on 15.9.2003 and transferred the record to the file of Sri M.K. Singh, Judicial Magistrate, 2nd Class, Begusarai, for disposal, who also on receiving the record passed the order on 20.9.2003 to issue summon against the petitioner. The informant/petitioner preferred Criminal Revision No.560 of 2003 against the order dated 15.9.2003 and 20.9.2003 taking cognizance of the offence under Sections 182 and 211 of the Indian Penal Code and issuing summon against him and the same was dismissed by the Additional Sessions Judge, Fast Track Court-III, Begusarai through the order dated 26.2.2008. 3. Learned counsel appearing on behalf of the petitioner submits that the police on investigation in Barauni P.S. Case No.247 of 2003, as lodged by the petitioner, submitted the final form finding the case untrue with report to proceed against the informant/petitioner for the offence under Sections 182 and 211 of the Indian Penal Code, but the Chief Judicial Magistrate, without accepting the final form in the case of the petitioner, took the cognizance of the offence on the report of the police under Sections 182 and 211 of the Indian Penal Code against the petitioner vide order dated 15.9.2003, which is without jurisdiction. It is also submitted that before 4 submission of the final form in the case by the police, the petitioner had filed the protest petition but the petitioner was not given any notice for being heard on the final form/protest petition so that sufficiency of materials for summoning the accused could have been pointed out by him, before the order of cognizance of offences under Sections 182 and 211 of the Indian Penal Code was passed by the Chief Judicial Magistrate. 4. From the facts of the case and the submissions as advanced by the learned counsel appearing on behalf of the petitioner, the short question that arises for consideration is as to whether in a case where First Information Report is lodged and after completion of the investigation the police submits the final form showing that the case is untrue with a further report to proceed against the informant for the offence under Sections 182 and 211 of the Indian Penal Code, has the Magistrate the jurisdiction to take cognizance of the offence and proceed for trial for the offence under Sections 182 and 211 of the Indian Penal Code against the informant without accepting the final form or without affording an opportunity of being heard to the informant? 5. On going through the complaint petition and the order dated 26.2.2008 passed in Criminal Revision No.560 of 5 2003, it appears that on investigation in Barauni P.S. Case No. 247 of 2003 lodged by the petitioner, the police submitted the final form alongwith the report vide Barauni P.S. Non F.I.R. No.1 of 2003 dated 31.7.2003 in the court of the Chief Judicial Magistrate, Begusarai. Thereafter, vide order dated 15.9.2003, after the perusal of the report as submitted by the police, vide Barauni Birpur P.S. non F.I.R. No.1 of 2003, the Chief Judicial Magistrate took cognizance of the offences under Sections 182 and 211 of the Indian Penal Code against the petitioner and transferred the record to the court of Sri M.K. Singh, Judicial Magistrate, 2nd Class, Begusarai, for trial while the protest petition in Barauni P.S. Case No.247 of 2003 was also filed by the petitioner in the court of the Chief Judicial Magistrate on 6.9.2003. 6. It is well settled law that when the final form is forwarded by the police to the Magistrate under Section 173 (2) (i) of the Code of Criminal Procedure with conclusion that no offence appears to have been committed or the case is untrue, the Magistrate has option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report to take the view that there is sufficient ground for proceeding further, and take cognizance of the 6 offence and issue process or (3) he may direct for further investigation by the police under Section 156(3) of the Code of Criminal Procedure. As such, without applying the mind on final form as to what option was available out of the three to take cognizance of the offence under Sections 182 and 211 of the Indian Penal Code as recommended by the police through report amounts to exceeding the jurisdiction. 7. The impugned order dated 26.2.2008 goes to show that the Additional Sessions Judge, Fast Track Court has detailed the facts of the case about the submission of the final form, which had not been accepted by the Chief Judicial Magistrate and also that without hearing the informant after issuing notice to him, on consideration of the report as submitted by the Investigating Officer through Barauni Birpur P.S. Non F.I.R. No.1 of 2003, the Chief Judicial Magistrate took cognizance of the offence under Sections 182 and 211 of the Indian Penal Code against the informant/petitioner. 8. The law is well known that once a case is reported not true and final form is submitted to that effect, the informant of the case or any other person who may have an interest in the matter or have the locus standi has to be noticed for affording him an opportunity of being heard and to satisfy the Magistrate 7 that the materials were sufficient in the case diary requiring the accused to be summoned. This proposition was laid down in 1985 SCC (Cri.) 267, Bhagwant Singh Vs. Commissioner of Police and another. Unless the C.J.M. Begusarai had afforded an opportunity to the petitioner of being heard on the final form, he could not have proceeded in any manner in the case. The other illegality, in my opinion, was that he was not even giving an opportunity to the petitioner of presenting his protest petition and produce material evidence to establish, prima facie, a case for summoning the accused. He was proceeding without following the right procedures to pass a completely illegal order. 9. Keeping in view the facts and the circumstances of the case and the position of law, it is apparent that without accepting the final form as submitted by the police in Barauni P.S. Case No.247 of 2003 finding the case untrue, taking the cognizance of the offence under Sections 182 and 211 of the Indian Penal Code on the basis of the report of the police and further issuing process against the petitioner is bad in law and without jurisdiction. 10. As a result, the impugned order dated 26.2.2008 is hereby quashed and the application is allowed. The case 8 shall revert back to the Chief Judicial Magistrate, Begusarai, who will proceed after hearing the petitioner on the final form and to further proceed in it as per law indicated above. P.S. (Rajendra Kumar Mishra, J)