IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10853 of 2008 ANUP PRAJAPATI Versus THE STATE OF BIHAR & ORS ----------- 02 23.04.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 21.1.2008 passed by the Chief Judicial Magistrate, Gaya in Kotwali P.S. Case No. 232 of 2005, registered under Section 304B of the Indian Penal Code, dropping proceedings against the opposite party nos. 2 and 3, named in the First Information Report, but charge-sheet was not submitted against them by the Police, sending them up for trial. A very short legal submission is made that before accepting the police report, discharging opposite party no. 2 and 3, the Magistrate was required to issue notice to the informant, hear him, and only then pass appropriate orders. This Court was initially inclined to issue notice to opposite party nos. 2 and 3. That would have required this Court to stay further proceedings before the court below, as it appears prima facie from the recitals in the impugned order that this procedure has not been followed by the Magistrate. 2 Rather than to stay the proceedings, this Court remands the matter to the Court of the Chief Judicial Magistrate, Gaya to examine from his records, if before accepting the Police report and discharging opposite party nos.2 and 3, he had issued notice to the informant, heard him, and then passed the impugned order dated 21.1.2008. If this procedure has been followed by the Magistrate, no interference may be required with the order dated 21.1.2008. Any protest petition pending shall then have to be considered on its own merit in accordance with law. But, if the Magistrate, accepting the Police report, exonerated opposite party nos. 2 and 3 without notice to the informant it was a gross procedural irregularity. In that event, the Magistrate is required to proceed in accordance with law afresh from the stage of submission of the report of the Police with regard to opposite party nos. 2 and 3, when the order dated 21.1.2008 by virtue of the present order of this Court passed in exercise of powers under Section 482 Cr.P.C. shall be no impediment in passing of fresh appropriate orders by the Magistrate. In A.I.R. 1985 SC 1285 (BHAGWANT SINGH VERSUS COMMISSIONER OF POLICE AND 3 ANOTHER) at paragraph-4 has held as follows:- “4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person @page-SC1288 or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of S. 156 and require the police to make a further report. The report may on the .other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an 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 and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizane of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding 4 further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-sec. (2) of S. 154, sub-sec. (2) of S. 157 and sub- sec. (2)(ii) of Section .173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of S. 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under subsec. (2)(i) of S. 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of 5 the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of S. 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.” The application stands disposed with the aforesaid observations. P.K. ( Navin Sinha, J.)