Nidhin George vs State
2021 Latest Caselaw 23260 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE K.HARIPAL
   THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                     CRL.REV.PET NO. 581 OF 2021
CR.NO.661/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ETTUMANOOR


REVISION PETITIONER/COMPLAINANT:

           NIDHIN GEORGE
           AGED 36 YEARS
           S/O. GEORGE MATHEW, POTHANAMTHADATHIL HOUSE,
           SREEKANDAMANGALAM, ATHIRAMPUZHA, KOTTAYAM DISTRICT-
           686562.

           BY ADVS.
           JAI GEORGE
           DAISY A.PHILIPOSE



RESPONDENT/STATE & COMPLAINANT:

           STATE
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM-682031.



           SR.PP - SRI. HRITHWIK C.S.




     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.R.P.581/2021                      2



                                                                      'CR'
                               O R D E R

Petitioner is the defacto complainant in crime 661/2014 of

Ettumanoor police station. That crime was registered alleging offence

under Sections 452 and 395 read with 120B of the IPC and also under

certain provisions of the Money Lenders Act. On conclusion of

investigation, final report was filed referring the crime. The grievance of

the petitioner is that he was not served with the refer notice. In this

connection reliance was placed on the copy of order sheet of the Judicial

First Class Magistrate-I, Ettumanoor, where it is shown that on

29.08.2019 notice was ordered to be repeated on the respondent/the

defacto complainant through registered post returnable by 16.11.2019.

On 16.11.2019, there was no sitting and the case was adjourned to

06.02.2020 by notification. On 06.02.2020, when the case was taken up,

since there was no representation for the defacto complainant, assuming

that notice to the defacto complainant was "deemed to be sent", the refer

report was accepted and the case was closed. Challenging the said order,

the defacto complainant has moved this revision.

2. After hearing the learned counsel on both sides, I have no

doubt that the procedure adopted by the learned Magistrate is illegal and

in violation of the standing instructions and also authoritative

pronouncements of the Apex Court and this Court in accepting a final

report. The directives issued by the Apex Court in the oft quoted

decision in Bhagwant Singh v. Commissioner of Police and another

[AIR 1985 SC 1285] cannot be ignored by the Court. It is apposite to

extract the following observations of the Apex Court which are very

relevant in the present context:

"4. ............ But if the Magistrate decides that there is no sufficient ground for proceeding 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 S. 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-sec.(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 sub-sec. (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 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 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-sec.(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."

This has been reiterated by the Apex Court in Union Public Service

Commission v. S. Papaiah and others (AIR 1997 SC 3876) and

Sanjay Bansal and another v. Jawajarla Vats and others (AIR 2008

SC 207).

3. It is not known as to what the learned Magistrate meant when

the final report was accepted taking notice as 'deemed to be sent'. If the

learned Magistrate was in mind that the notice that might have been

served by the investigating agency under Section 173(2)(h)(ii), there also

the Court has failed to follow the procedure. This aspect has been

considered specifically by the Apex Court in Union Public Service

Commission's case, quoted supra, where the Court was adverting to

sufficiency of the notice issued by the CBI, the investigating agency in

that case, to the defacto complainant. The Court held that as per the law

laid down in Bhagwant Singh's case, quoted supra, the issuance of a

notice by the Magistrate to the informant at the time of consideration of

the final report is a "must". The Court further held that issuance of

notice by the CBI to the party was not a substitute for the notice which

was required to be given by the Magistrate in terms of the judgment in

Bhagwant Singh's case. According to the Apex Court, the learned

Magistrate could not in any event 'delegate' to the investigating agency

its function for issuing notice. Moreover, when law requires a particular

thing to be done in a particular manner, it must be done in that manner

and in no other manner.

4. To put it in other words, the learned Magistrate went wrong in

accepting the final report without serving notice on the defacto

complainant and affording opportunity to give expression to his version.

Resultantly, the order dated 06.02.2020 accepting the final report is

quashed. The case is remitted to the trial court for fresh consideration,

after giving opportunity to the revision petitioner/the defacto

complainant to raise his objections in accepting the report. The learned

counsel agreed that the petitioner/counsel will appear before the trial

court on 20.12.2021.

The Criminal Revision Petition is disposed of as above.

Sd/-

K.HARIPAL JUDGE okb/26.11 //True copy// P.S. to Judge