Shiv Adhar Mishra vs State of U.P. and Another

Bala Krishna Narayana, J.—Heard learned Counsel for the revisionist and learned AGA for the State.

This application in revision has been filed by the revisionist against the order dated 15.9.2010 passed by Additional Chief Judicial Magistrate, Court No. 7, Allahabad, by which he has rejected his objection dated 18.3.2010 filed by him against the final report submitted in case crime No. 310 of 2007, u/s 406 as not maintainable.

Learned Counsel for the revisionists submitted that the reason given in the impugned order by the court below for rejecting the revisionists'' objection filed by him against the final report as not maintainable that he was not the first informant is totally untenable. He further submitted that the court below was bound to consider the objection of the revisionist who is the owner of the vehicle which has been stolen/misappropriated, after he had appeared before him and filed his objection, in view of law laid down by the Apex Court in Bhagwant Singh Vs. Commissioner of Police and Another,

Per contra learned AGA made his submission in support of the impugned order.

The facts of the case are not in dispute. The opposite party No. 2 who is the driver of the revisionist lodged a first information report against one Sunil Kumar Yadav, who is the former driver of the revisionist at P.S. Soraon, District Allahabad alleging therein that the accused Sunil Yadav had obtained the custody of the revisionist''s vehicle from him on the false pretext that the revisionist had re-employed him as his driver. However, when he came to know from the revisionist that the accused had not been re-employed by him, the F.I.R. in question was lodged by him against Sunil Yadav. The Investigating Officer after converting the case u/s 379 I.P.C. submitted final report after completion of investigation against which the complainant-opposite party No. 2 as well as the revisionist filed their objections. By the impugned order, the Court below has rejected the revisionist''s objection as not maintainable and has directed the protest petition filed by the opposite party No. 2 to be registered as complaint.

After having examined the submissions advanced by the learned Counsel for the revisionist and learned AGA for the State and perused the impugned order as well as the other materials brought on record, I am of the view that the submission made by the learned Counsel for the revisionist has substance and the same is liable to be accepted. The Apex Court in Bagwant Singh (supra) case of para nos 5 and 6 while examining the identical question has held as hereunder:

The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Code of Criminal Procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate, and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, through not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report.

This is our view in regard to the question which has arisen for consideration before us. Since the question is one of general imlportance, we would direct that copies of this judgment shall be sent to the High Courts in all the States so that the High Courts may in their turn circulate this judgment amongst the Magistrates within their respective jurisdictions.

In view of the above, the court below has committed a patent error of law in coming to the conclusion that the objection filed by the revisionist against the final report was not maintainable. The impugned order thus cannot be sustained and is liable to be set aside.

For the aforesaid reasons, this application in revision is allowed. The impugned order dated 15.9.2010 rejecting the revisionist''s objection as not maintainable is hereby set aside. The learned Additional Chief Judicial Magistrate, Court No. 7, Allahabad is directed to consider and decide the Petitioner''s objection filed by him against the final report on merit within a period of two weeks from the production of a certified copy of this order.