Madhya Pradesh High Court
Kehar Singh Khangar vs The State Of Madhya Pradesh on 27 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C No.8197/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 27th OF FEBRUARY, 2024
MISCELLANEOUS CRIMINAL CASE No. 8197 of 2024
BETWEEN:-
KEHAR SINGH KHANGAR S/O SHRI RAMESH
PRASAD KHANGAR, AGED ABOUT 24 YEARS,
OCCUPATION: ASSISTANT SALESMAN
GOVERNMENT FAIR PRICE SHOP
DARGAYKHURD R/O NEAR BUS STAND,
DARGAYKHURD, POLICE STATION
MOHANGARH DISTRICT TIKAMGARH (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI RAHUL KUMAR TRIPATHI - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION MOHANGARH DISTRICT
TIKAMGARH (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MOHAN SAUSARKAR - PUBLIC PROSECUTOR)
............................................................................................................................................
This application coming on for admission this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed for
quashment of FIR in Crime No.53/2021 registered at Police Station
Mohangarh, District Tikamgarh for offence under Sections 3, 7 of
Essential Commodities Act.
2. It is the case of applicant that he is working as Assistant Salesman
in Government Fair Price Shop Dargaykhurd, District Tikamgarh. On
12/09/2020, Tehsildar Digora conducted a spot inspection and certain
complaints were made of villagers that applicant is not distributing
ration regularly and he does not open the shop on time. It was also
found by the Tehsildar that the applicant had kept the ration of two
months in another store and accordingly, the shop was sealed and report
was sent to the SDO. On the report lodged by Junior Supply Officer on
27/02/2021, offence has been registered at Police Station Mohangarh,
District Tikamgarh.
3. Challenging the said FIR, it is submitted by counsel for the
applicant that FIR was lodged without giving any opportunity of hearing
to the applicant. Although the applicant was shown to be the Assistant
Salesman but there is no such post in the Society. Applicant is not
involved in the said crime and FIR has been lodged on the false
grounds.
4. Considered the submissions made by counsel for the applicant.
5. So far as the question of grant of opportunity prior to lodging of
FIR is concerned, it is well established principle of law that suspect has
no right of pre-audience before lodging of FIR.
6. The Supreme Court in the case of Union of India and Another
Vs. W.N. Chadha reported in 1993 Supp (4) SCC 260 has held that if
prior notice and an opportunity of hearing are to be given to an accused
in every criminal case before taking any action against him, such a
procedure would frustrate the proceedings, obstruct the taking of prompt
action as law demands, defeat the ends of justice and make the
provisions of law relating to investigation lifeless, absurd and self-
defeating. Further, the scheme of the relevant statutory provisions
relating to the procedure of investigation does not attract such a course
in the absence of any statutory obligation to the contrary.
7. The Supreme Court in the case of Narender G. Goel Vs. State of
Maharashtra and Another reported in (2009) 6 SCC 65 has held as
under:-
"11. It is well settled that the accused has no
right to be heard at the stage of investigation.
The prosecution will however have to prove its
case at the trial when the accused will have full
opportunity to rebut/question the validity and
authenticity of the prosecution case. In Sri
Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj v. State of A.P. [(1999)
5 SCC 740 : 1999 SCC (Cri) 1047] this Court
observed : (SCC p. 743, para 11)
"11. ... There is nothing in
Section 173(8) to suggest that the
court is obliged to hear the accused
before any such direction is made.
Casting of any such obligation on
the court would only result in
encumbering the court with the
burden of searching for all the
potential accused to be afforded with
the opportunity of being heard."
12. The accused can certainly avail himself of an
opportunity to cross-examine and/or otherwise
controvert the authenticity, admissibility or legal
significance of material evidence gathered in the
course of further investigations. Further in light
of the views expressed by the investigating
officer in his affidavit before the High Court, it is
apparent that the investigating authorities would
inevitably have conducted further investigation
with the aid of CFS under Section 173(8) of the
Code."
8. The Supreme Court in the case of Anju Chaudhary Vs. State of
Uttar Pradesh and Another reported in (2013) 6 SCC 384 has held as
under:-
"30. Section 154 of the Code places an
unequivocal duty upon the police officer-in-
charge of a police station to register FIR upon
receipt of the information that a cognizable
offence has been committed. It hardly gives any
discretion to the said police officer. The genesis
of this provision in our country in this regard is
that he must register the FIR and proceed with
the investigation forthwith. While the position of
law cannot be dispelled in view of the three-
Judge Bench judgment of this Court in State of
U.P. v. Bhagwant Kishore Joshi [AIR 1964 SC
221 : (1964) 1 Cri LJ 140], a limited discretion is
vested in the investigating officer to conduct a
preliminary inquiry pre-registration of an FIR as
there is absence of any specific prohibition in the
Code, express or implied. The subsequent
judgments of this Court have clearly stated the
proposition that such discretion hardly exists. In
fact the view taken is that he is duty-bound to
register an FIR. Then the question that arises is
whether a suspect is entitled to any pre-
registration hearing or any such right is vested in
the suspect.
31. The rule of audi alteram partem is subject to
exceptions. Such exceptions may be provided by
law or by such necessary implications where no
other interpretation is possible. Thus rule of
natural justice has an application, both under the
civil and criminal jurisprudence. The laws like
detention and others, specifically provide for
post-detention hearing and it is a settled principle
of law that application of this doctrine can be
excluded by exercise of legislative powers which
shall withstand judicial scrutiny. The purpose of
the Criminal Procedure Code and the Penal
Code, 1860 is to effectively execute
administration of the criminal justice system and
protect society from perpetrators of crime. It has
a twin purpose; firstly to adequately punish the
offender in accordance with law and secondly, to
ensure prevention of crime. On examination, the
scheme of the Criminal Procedure Code does not
provide for any right of hearing at the time of
registration of the first information report. As
already noticed, the registration forthwith of a
cognizable offence is the statutory duty of a
police officer-in-charge of the police station. The
very purpose of fair and just investigation shall
stand frustrated if pre-registration hearing is
required to be granted to a suspect. It is not that
the liberty of an individual is being taken away
or is being adversely affected, except by the due
process of law. Where the officer-in-charge of a
police station is informed of a heinous or
cognizable offence, it will completely destroy the
purpose of proper and fair investigation if the
suspect is required to be granted a hearing at that
stage and is not subjected to custody in
accordance with law. There would be
predominant possibility of a suspect escaping the
process of law. The entire scheme of the Code
unambiguously supports the theory of exclusion
of audi alteram partem pre-registration of an FIR.
Upon registration of an FIR, a person is entitled
to take recourse to the various provisions of bail
and anticipatory bail to claim his liberty in
accordance with law. It cannot be said to be a
violation of the principles of natural justice for
two different reasons : firstly, the Code does not
provide for any such right at that stage, secondly,
the absence of such a provision clearly
demonstrates the legislative intent to the contrary
and thus necessarily implies exclusion of hearing
at that stage. This Court in Union of
India v. W.N. Chadha [1993 Supp (4) SCC 260 :
1993 SCC (Cri) 1171] clearly spelled out this
principle in para 98 of the judgment that reads as
under : (SCC p. 293)
"98. If prior notice and an
opportunity of hearing are to be
given to an accused in every
criminal case before taking any
action against him, such a procedure
would frustrate the proceedings,
obstruct the taking of prompt action
as law demands, defeat the ends of
justice and make the provisions of
law relating to the investigation
lifeless, absurd and self-defeating.
Further, the scheme of the relevant
statutory provisions relating to the
procedure of investigation does not
attract such a course in the absence
of any statutory obligation to the
contrary."
32. In Samaj Parivartan Samudaya v. State of
Karnataka [(2012) 7 SCC 407 : (2012) 3 SCC
(Cri) 365], a three-Judge Bench of this Court
while dealing with the right of hearing to a
person termed as "suspect" or "likely offender"
in the report of the CEC observed that there was
no right of hearing. Though the suspects were
already interveners in the writ petition, they were
heard. Stating the law in regard to the right of
hearing, the Court held as under : (SCC p. 426,
para 50)
"50. There is no provision in
CrPC where an investigating agency
must provide a hearing to the
affected party before registering an
FIR or even before carrying on
investigation prior to registration of
case against the suspect. CBI, as
already noticed, may even conduct
pre-registration inquiry for which
notice is not contemplated under the
provisions of the Code, the Police
Manual or even as per the precedents
laid down by this Court. It is only in
those cases where the court directs
initiation of investigation by a
specialised agency or transfer
investigation to such agency from
another agency that the court may, in
its discretion, grant hearing to the
suspect or affected parties. However,
that also is not an absolute rule of
law and is primarily a matter in the
judicial discretion of the court. This
question is of no relevance to the
present case as we have already
heard the interveners."
33. While examining the abovestated principles
in conjunction with the scheme of the Code,
particularly Sections 154 and 156(3) of the Code,
it is clear that the law does not contemplate grant
of any personal hearing to a suspect who attains
the status of an accused only when a case is
registered for committing a particular offence or
the report under Section 173 of the Code is filed
terming the suspect an accused that his rights are
affected in terms of the Code. Absence of
specific provision requiring grant of hearing to a
suspect and the fact that the very purpose and
object of fair investigation is bound to be
adversely affected if hearing is insisted upon at
that stage, clearly supports the view that hearing
is not any right of any suspect at that stage.
34. Even in the cases where report under Section
173(2) of the Code is filed in the court and
investigation records the name of a person in
column (2), or even does not name the person as
an accused at all, the court in exercise of its
powers vested under Section 319 can summon
the person as an accused and even at that stage of
summoning, no hearing is contemplated under
the law."
9. The Supreme Court in the case of E. Sivakumar Vs. Union of
India and Others reported in (2018) 7 SCC 365 has held as under:-
"11. Our attention was invited to the
observations made in para 73 in State of
Punjab v. Davinder Pal Singh Bhullar, (2011)
14 SCC 770, which in turn adverts to the
exposition in D. Venkatasubramaniam v. M.K.
Mohan Krishnamachari, (2009) 10 SCC 488,
wherein it has been held that an order passed
behind the back of a party is a nullity and liable
to be set aside only on this score. That may be
so, if the order to be passed behind the back of
the party was to entail in some civil
consequence to that party. But a person who is
named as an accused in the FIR, who otherwise
has no right to be heard at the stage of
investigation or to have an opportunity of
hearing as a matter of course, cannot be heard
to say that the direction issued to transfer the
investigation to CBI is a nullity. This ground, in
our opinion, is an argument of desperation and
deserves to be rejected."
10. Thus, it is clear that an accused has no right of pre-audience
before registration of FIR.
11. Furthermore, this Court in exercise of powers under Section 482
of Cr.P.C. can quash the proceedings only if uncontroverted allegations
do not make out an offence. This Court cannot consider the defence of
accused. This Court cannot conduct a detailed enquiry regarding
correctness of evidence at this stage. The allegations must be accepted
as true.
12. Under these circumstances, this Court is of considered opinion
that no case is made out warranting quashment of FIR.
13. Accordingly, application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
S.M.
