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Judgment
V.B. Gupta, J.—Present petition u/s 397 Cr.P.C. has been filed by the petitioner challenging the impugned order dated 6th February, 2006
passed by Sh. S.K. Kaushik, Special Judge, New Delhi.
The above noted case was registered on the basis of complaint lodged by the present petitioner on 12th February, 2004. Thereafter, on 30th
June, 2004 C.B.I., the respondent No. 1 submitted a closure report. That closure report was accepted by the trial court vide impugned order, the
relevant part of which reads as under:
I have considered the submissions of the Sr.P.P. for C.B.I. Mr. Mohd. Azad as well as heard I.O. Sl Som Nath bids was and have gone through
the charge sheet as well as documents. There is no necessity of notice to complainant as CBI is to file a complaint to prosecute the complainant
Praveen Grover under Sections 182 and 417 of the IPC.
In my considered view there is no material on record on the basis of which CBI can be directed to conduct further investigation of the case.
Accordingly this Court has no option but to accept the closure report. The closure report is, accordingly, accepted.
This order has been challenged by the petitioner on the grounds that the trial court while considering the closure report dated 30th June, 2004
has not opted to issue notice to the petitioner to put his case and clarify the authenticity of the averment made in the closure report and has
committed glaring errors in the impugned order by not following the principle laid down by the Apex Court in Bhagwant Singh Vs. Commissioner
of Police and Another, .
During the course of arguments, learned Counsel for the CBI has conceded that in view of the decision of the Bhagwant Singh''s case (supra),
the Magistrate ought to have given notice and hear the first informant.
Admittedly, no notice has been given by the trial court to the complainant before considering the closure report.
In Bhagwant Singh''s case (Supra), it has been laid down that:
There can, Therefore, be no doubt that when, on a consideration of the report made by the officer in charge of police station under Sub-section (2)
(i) of Section 173 of Cr.P.C., the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an
opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.
We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section 2(i) of Section 173 decides
not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceedings 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.
To the similar effect, another decision of the Apex Court cited by the learned Counsel for the petitioner is Gangadhar Janardan Mhatre v. State
of Maharashtra AIR 2004 S.C. 475 in which Apex Court concurred with the decision of Bhagwant Singh''s case (Supra) and held that:
As decided by this Court in Bhagwant Singh''s case (supra), the Magistrate has to give the notice to the informant and provide an opportunity to be
heard at the time of consideration of the report. It was noted as follows:
...the Magistrate must given notice to the informant and provide him an opportunity to be heard at the time of consideration of the report....
Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when
the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed
belatedly. But as indicated in Bhagwant Singh''s case (supra) the right is conferred on the informant and none else.
In another decision of Apex Court Union Public Service Commission Vs. S. Papaiah and others, relying upon Bhagwant Singh''s case (supra), it
was held that:
As per the law laid down in Bhagwant Singh case the issuance of a notice by the Magistrate to the informant at the time of consideration of the final
report is a ""must"". This binding precedent, which is the law of the land, has not been followed by the Vth Metropolitan Magistrate and was wrongly
ignored by the revisional court also.
Admittedly, the Special Judge has not given notice to the complainant before passing the impugned order on the closure report. It appears that
the Special Judge is ignorant of the basic decisions of the Apex Court on this point and it is expected that he would update his knowledge with
regard to the decisions of the Apex Court.
Accordingly, the present petition is allowed and impugned order passed by Special Judge is set aside and he is directed to hear the
informant/complainant on the closure report filed by the C.B.I. after giving him due notice.