Allowed

Vijaysing Nathesing Rajput v. the State of Maharashtra and Others

Bombay HC24 Oct 2013WP/346/2013

Case brief

AI extract

What is this about?

This is a writ petition challenging a Magistrate's acceptance of a 'C' Summary report without giving notice to the first informant. The High Court held that such a notice and hearing are mandatory and set aside the impugned order.

What did the court decide?

Impugned order set aside; Magistrate directed to give notice to petitioner and afford opportunity of being heard before deciding on the 'C' Summary report.

Vijaysing Nathesing Rajput Vs the State of… — Civil Procedure and Limitation | Bombay HC (2013)

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crwp346.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD.

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CRIMINAL WRIT PETITION NO.346 OF 2013

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VIJAYSING NATHESING RAJPUT.

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..PETITIONER.

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS.

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..RESPONDENTS.

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Advocate for Petitioner : Mr. Waramaa B.R. APP for Respondent-State: Mr.B.L. Dhas. Advocate for Respondents 4 to 8 : Mr. Patil Shrikant S. Advocate for Respondents 9 & 10 : Mr.N.R. Shaikh.

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CORAM : ABHAY M. THIPSAY, J.

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24th OCTOBER, 2013.

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P.C.:

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Rule. By consent Rule is made returnable

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forthwith. By consent heard finally.

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The petitioner had filed a complaint in the Court

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crwp346.13

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of J.M.F.C. and had prayed that an order to investigate

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into the matter, as contemplated under Section 156(3)

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of the Code of Criminal Procedure (Code), be passed. Such an order was passed, pursuant to which, the first information report was registered and investigation commenced. After the investigation, the Police came to the conclusion that the complaint was false and filed a

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'C' Summary report. The same was accepted by the

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Magistrate by an order, which reads as:-

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"Allowed."

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The grievance of the petitioner is that he being the original complainant and the first informant, ought to

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have been heard in the matter before the acceptance of

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the 'C' Summary report.

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The legal position that, when the Police decide not

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crwp346.13

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to proceed against a person, who is named as an

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accused in the F.I.R., notice must be given to the first informant and he should be heard in the matter before the report submitted by the police is accepted, is well settled and not open to challenge.

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The learned Counsel for the respondents 4 to 8

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however, made a feeble attempt to wriggle out of this position by contending that the petitioner is not the first informant but, is a complainant and, that therefore, it would not be necessary to give a notice to him. There is

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no substance in this contention, as, though the petitioner had originally lodged a complaint, after the order u/s 156(3) of the Code was passed, the first information report came to be registered and after investigation a final report came to be filed. The question of submitting 'C' Summary final report would not arise in case of a complaint. Moreover, if the first

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informant is entitled for a notice in spite of the fact that

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State is monitoring the investigation, then a complainant who is the person controlling the prosecution has a better and stronger case for being heard.

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Mr. Shaikh, learned Counsel for respondents No.

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9 and 10 submitted that the provision to give notice to

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the first informant is not statutory and a need of such a

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notice is felt so as to make the first informant aware of

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the report submitted by the police. He submitted that

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in the petition, there is no averment that the petitioner

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was unaware of the submission of such a report by the police. His submission is that, therefore, the petitioner

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already had notice of the report and that, he could have

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opposed the acceptance of 'C' Summary report, if he

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wanted to. I do not find any substance in this contention also. The legal position has crystallized

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crwp346.13

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that a notice ought to be given by the Court to the first informant in such a case. The object is to provide sufficient opportunity to the first informant to represent before the Court that the report submitted by the police should not be accepted. There is nothing to indicate that such an opportunity was given to the petitioner. In fact, that the opportunity was given cannot be presumed at all, unless the petitioner was called upon to show cause, as to why such summary report should not be accepted.

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The order passed by the Magistrate is contrary to

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law. The same is, therefore, required to be interfered with by exercising the jurisdiction of this Court under

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Article 227 of the Constitution of India.

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The petition is allowed.

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crwp346.13

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The impugned order is set aside.

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The learned Magistrate shall give a notice to the petitioner in respect of 'C' Summary report filed by the police and decide whether the "C" Summary report should be accepted or not, after giving to the petitioner

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an opportunity of being heard in the matter.

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Rule is made absolute in the above terms.

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(ABHAY M. THIPSAY, J.)

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PLK/*

Vijaysing Nathesing Rajput v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Vijaysing Nathesing Rajput v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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