Sarwan Kumar vs State of Haryana

S.S. Grewal, J.

This order will dispose of Criminal Misc. No. 5721 of 1989 and main Criminal Misc. No. 3369M of 1989.

The question relates to necessity of issuing notice to the complainant while considering grant of anticipatory bail. Apparently, it is not obligatory to issue any notice even to the State while granting bail under Section 428 Cr.P.C. The mere fact that while considering the question of cancellation of bail such notice may be sent to the State, per se cannot be considered sufficient in all cases to allow the complainant, or for that matter the State to be heard before granting anticipatory bail. Such an analogy would indeed be a farfetched one. No direct authority on this point has been cited before me. For the purpose of granting bail under Section 438 Cr.P.C., it is not necessary to hear either the complainant or the first informant.

As far as the question of grant of anticipatory bail in a case initiated on the police report is concerned, the State may be considered as a proper party. However, the first informant or the complainant in such proceedings can neither be considered as a necessary party, nor a proper party and they have no locus standi to be heard. The complainantparty may hold a watching brief and may bring the relevant facts to the notice of the State counsel. Apart from that the complainant party has no right to be heard, particularly, when the State is duly represented.

It was next submitted on behalf of the complainant that when on consideration of the report made by the officer Incharge of a Police Station under subsection (2)(i) of Section 173 Cr.P.C., the Magistrate is not inclined to take cognizance of the offence and to drop the proceedings, 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 so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process as observed by their Lordships of the Supreme Court in Bhagwant Singh v. Commissioner of Police and another, AIR 1985 S.C. 1285.

The second authority cited by the learned Counsel for the complainant in H.S. Bains v. The State (Union Territory of Chandigarh), AIR 1980 SC 1883 which relates to a question of consideration of police report under Section 173(2) Cr.P.C. and also the question where a Magistrate may decide that there is no sufficient ground for proceedings further and drop the proceedings, or may take cognizance of the offence under Section 190(1)(b) on the basis of Police report and issue process, or direct an enquiry under Section 202 Cr.P.C.

The third authority relied upon by the counsel for the complainant is M/s. India Carat Pvt. Ltd. v. State of Karnataka and another, AIR 1989 SC 885. This authority relates to a question whether upon receipt or a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of Cr.P.C. even if the police report is to the effect that no case is made out against the accused.

All the above said authorities are not applicable to the facts of the case in hand and are clearly distinguishable, inasmuch as in the instant case the question of grant of bail under Section 438 Cr.P.C. is involved and not the cancellation thereof or the consideration of a report under Section 173(2) Cr.P.C.

It is also pertinent to note that according to the report of the Investigating Officer, the present petitioners are not required to be arrested as no evidence concerning any accusation has been made out against them during the investigation of this case.

For the foregoing reasons the main petition Criminal Misc. No. 3369M of 1989 has become infructuous and is dismissed as such. In case the petitioner Sarwan Kumar and others are required to be arrested by the police, the Investigating Officer shall give a week''s notice to the petitioners in order to enable them to approach this Court for grant of anticipatory bail. Crl. Misc. No. 5721 of 1989 is also denied.

JUDGMENT accordingly.