2019 (11) TMI 1783 - HC - Indian Laws

Locus standi/victim - Seeking to include the names of other accused persons whose names were found in the First Information Report dated 30.12.2016 registered in Cr. No. 2 of 2016 on the file of the 1st Respondent Police - whether the procedure adopted by the Judicial Magistrate in taking cognizance of the final report without notice to the Petitioner and the order passed by him in dismissing the protest petition is proper or not? HELD THAT - Admittedly in this case on hand the Petitioner is a victim and he is an interested person. Though the complaint had been given by the brother of the Petitioner only at the instance of the Petitioner the case has been registered initially and thereafter the closure report filed by the earlier investigating agency has been set aside and only at the instance of the Petitioner the case has been transferred to the file of the present 1st Respondent Police and as such the Petitioner being a victim has locus-standi to maintain the protest petition and is entitled to be heard before final report is taken on file. Admittedly no notice has been given to the Petitioner by the Magistrate before the final report was taken on file. The Magistrate had dismissed the petition stating that it has been filed after cognizance has been taken and thereby it is not maintainable. The Magistrate has the power to order further investigation of the offence till the stage when the trial commences. A criminal trial does not begin after cognizance is taken but only after charges are framed. Article 21 of the Constitution of India demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power subject of course to the Magistrate s nod under Section 173(8) to further investigate an offence till charges are framed but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings would amount to a travesty of justice as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. The Petitioner being a victim is a person mandatorily entitled to notice as per law before acceptance of final report. The Judicial Magistrate had held that the protest petition filed on 29.10.2019 after cognizance being taken on 27.12.2018 is not maintainable and that allowing the protest petition would amount to setting aside or modifying its own order and that the protest petition has to be treated as a private complaint. This Court is of the opinion that the procedure adopted by the Judicial Magistrate in taking cognizance of the final report dropping the names of the persons mentioned in the First Information Report without notice to the Petitioner is illegal and further dismissing the protest petition on the ground of delay and observing that it is not maintainable and would amount to reviewing its own order is improper. The further finding that the other additional accused could be brought in only at the stage of Section 319 of Cr.P.C. is also improper - this Criminal Revision Petition is allowed in part.

Summary

Issues Involved:
1. Whether the Judicial Magistrate's procedure in taking cognizance of the final report without notice to the petitioner was proper.
2. Whether the dismissal of the protest petition by the Judicial Magistrate was proper.
3. Whether the Judicial Magistrate's finding that additional accused could only be brought in at the stage of Section 319 of Cr.P.C. was correct.

Issue-Wise Detailed Analysis:

1. Procedure in Taking Cognizance Without Notice:
The petitioner contended that the Judicial Magistrate took cognizance of the final report without issuing notice to him, which was against the principles of criminal law. The court emphasized that the petitioner, being a victim and interested party, had locus standi to maintain the protest petition and was entitled to be heard before the final report was taken on file. The court cited several precedents, including *Bhagwant Singh v. Commissioner of Police* and *Vishnu Kumar Tiwari v. State of UP*, which mandate that the informant must be given an opportunity to be heard if the Magistrate decides not to proceed against some of the persons mentioned in the FIR. The court concluded that the procedure adopted by the Judicial Magistrate in taking cognizance without notice to the petitioner was illegal.

2. Dismissal of the Protest Petition:
The Judicial Magistrate dismissed the protest petition on the grounds that it was filed after cognizance was taken and that allowing it would amount to setting aside or modifying its own order. The court found this reasoning improper, emphasizing that the petitioner had a right to file a protest petition and that the Magistrate should have considered it on merits. The court referred to the decision in *Augustin and others v. State*, which held that the mere act of taking cognizance does not defeat the right of the de facto complainant to have his protest petition considered. The court concluded that the dismissal of the protest petition was improper and set aside the impugned order.

3. Additional Accused and Section 319 of Cr.P.C.:
The Judicial Magistrate held that additional accused could only be brought in at the stage of Section 319 of Cr.P.C. The court found this finding incorrect, citing the recent Supreme Court decision in *Vinubhai Haribhai Malaviya and others v. State of Gujarat and another*, which overruled earlier decisions and held that the Magistrate's power to order further investigation does not cease upon process being issued. The court emphasized that the Magistrate has the power to order further investigation at all stages before the trial commences and that this power is essential to ensure a fair and just investigation. The court concluded that the finding regarding Section 319 was improper.

Conclusion:
The court allowed the Criminal Revision Petition in part, setting aside the order taking cognizance dated 27.12.2018 and the impugned order dated 26.08.2019 dismissing the protest petition. The court directed the lower court to take up the protest petition, hear the petitioner, and pass orders on merits within two months.