Supreme Court expounds: Magistrate has to give opportunity for protest petition where the police does not chargesheet all accused named in the FIR [Read the Judgment]

May 3, 2019:

Supreme Court has held that if police names only some accused in the chargesheet instead of all accused named in FIR, the Magistrate has to give an opportunity to the informant to file protest petition.

A two judges bench of Justice Nageshwara Rao and Justice Shah has passed the judgment in case titled Rajesh vs State of Haryana on 01.05.2019.

One Hukum Singh lodged one FIR No. 180 on 12.06.2016 at Police Station Sadar, Panipat against ten accused, including the appellants herein for the offences under Sections 148, 149, 323, 324, 325, 302, 307 and 506 of the IPC.

All the accused named in the FIR were arrested. The Investigating Officer conducted the investigation and found ten persons involved in the said incident. However, the Investigating Officer found that the appellants herein (six in numbers) were not present at the site of incident. That the Investigating Officer submitted his report under Section 173(2) of the CrPC against four accused only.

Thereafter the trial proceeded further against those four accused against whom the

challan/chargesheet was filed. The prosecution examined two witnesses – P.W.1, the original informant and P.W.2, Bhajji, the injured eye witness. Both of them corroborated the case of the prosecution and categorically stated that the appellants herein were also present at the time of incident. Both of them were cross examined

by the defence. Thereafter the original informant P.W.1 submitted the application before the learned Magistrate under Section 319 of the CrPC to summon the appellants herein to face the trial for the offences under Sections 148, 149, 323, 324, 325, 302, 307 and 506 of the IPC.

By a detailed judgment and order, the learned Magistrate in exercise of powers under Section 319 of the CrPC has directed to issue summons against the appellants herein to face the trial along with the other co accused for the offences under Sections 148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. Matter finally reached the Supreme Court.

It is in the above context that the Supreme Court made some very pertinent observations. It observed “It is required to be noted that, in the present case, the original complainant first informant specifically named ten persons as accused, including the appellants herein. However, thereafter after the investigation, the investigating officer filed the chargesheet/ challan against four accused persons only and no challan/chargesheet was filed against the appellants herein. Nothing is on record whether at that time any specific closure report was submitted by the investigating officer or not. Nothing is on record whether at that stage an opportunity was given to the complainant/original informant to submit any protest application or not. Assuming that non filing of the chargesheet/challan against the remaining accused named in the FIR can be said to be a closure report, in that case also, as per the settled proposition of law and more particularly, the decision of this Court in the case of Bhagwant Singh (supra), before accepting the closure report, the Magistrate is bound to issue notice to the complainant/original informant and the complainant/original informant is required to be given an opportunity to submit the protest application and, thereafter, after giving an opportunity to the complainant/original informant, the Magistrate may either accept the closure report or may not accept the closure report and direct to proceed further against those persons for whom the closure report was submitted. In the present case, nothing is on record that such a procedure was followed by the learned Magistrate”.

Read the judgment here:

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