Supreme Court of India
BHAGWANT SINGHversusCOMMISSIONER OF POLICE AND ANR.
- Citation
- 1985 INSC 103
- Decided
- 25 April 1985
- Disposal
- Disposed off
- Bench
- P N BHAGWATI
Holding
When a magistrate considers a police report under Section 173(2)(i) and decides not to take cognizance of the offence, he must give notice to the informant and provide him an opportunity to be heard; no such statutory duty exists towards injured persons or relatives of the deceased.
Summary
The Supreme Court examined whether a person who lodges a First Information Report (FIR) is entitled to notice and a hearing when a magistrate considers the police report under Section 173(2)(i) of the Criminal Procedure Code and decides to drop the proceedings. It held that if the magistrate chooses not to take cognizance of the offence, he must give notice to the informant and afford him an opportunity to be heard, as the informant’s interest in the outcome is protected by Sections 154, 157 and 173. The Court found that difficulty in serving notice cannot justify denying the hearing. Conversely, the injured party or a relative of a deceased person is not statutorily entitled to such notice, though they may appear voluntarily and be heard if they do so. The judgment directed that magistrates across the country follow this rule, thereby granting relief to the petitioner.
Issues considered
- Whether the first informant is entitled to notice and a hearing when a magistrate considers a police report under Section 173(2)(i) and decides to drop the proceedings.
- Whether an injured person or a relative of a deceased person has a similar right to notice and hearing in the same circumstance.
- Whether difficulty in serving notice can be a valid ground to deny the informant a hearing.
- Whether principles of natural justice impose a duty on the magistrate to hear the informant.
Legislation cited
- Code of Criminal Procedure, 1973s. 154(1), s. 154(2), s. 156(3), s. 157(1), s. 157(2), s. 173(2)(i), s. 173(2)(ii), s. 190(1)
- Criminal Procedure Code, 1913s. 154, s. 173
Subjects
First Information ReportSection 173magistratenoticeright to be heardnatural justiceCriminal Procedure Codeinformantinjured personrelative of deceaseddropping proceedingscognizance of offence
Judgment
942
A
BHAGW ANT SINGH
v,
B
COMMISSIONER OF POLICE AND ANR.
April 25, 1981
(P.N. BHAGWATI, AMARENDRA NATH SEN AND D.P. MADON, JJ.]
c Criminal Procedure Code, 1913, ss. 154 and 173-First Information Report
-The informant is entitled to hearing, when, on the basis of police report Magis-
trate p'refers to drop the proceedings instead of taking cognizance of ojfe11ce-
Person injured or relative of the person who died in the incident complained of has
no such right of hearing except a standing to appear before Afagistrare the Magis-
trate, of his own discretion can isst.e notice to then1 for hearing.
D Adn1inistrative law-Naturaljustice-Eifficulty in con1pliance with-Can-
not be a ground to deny the opportunity of hearing.
In a criminal case where First Information Report is lodged and the police
submits a report after completion of investigatio:i initiated on the basis of such
FIR that no offence appe1rs to hlv~ been co:n nitted, on the question whether
E in cases of this kind; the first inform tnt or any rddtive of the deceased or any
other aggrieved person is entitled to be heard at the time of consideration of the
Report by the Magistrat~ and whether the Magi~trate is bound to issue notice
to any such person, the Court,
HELD : 1 . When the report forwarded by the Officer-in-charge of a police
station to the Magistrate under sub-section (2) (i) of section 173 comes up for
F consideration by the Magistrate, one of two different situations may arise. The
report may conclude that an offence appears to have been committed by a parti-
cular person or persons and in such a case, the Magistrate may do one of three
things: (1) he may accept the report and take cognizance of the offence and issue
process or (2) he may ,disagree with the report and drop the proceeding or (3) he
may direct further investigation under sub-section (3) of section 156 and require
the police to make a further report. The report may on the other hand state
G that, in the opinion of the police, no offence appears to have been committed
and where such a report has been made, the Magistrate again has an option to
adopt one of three courses : (1) he may accept the report and drop the proceed-
ing or (2) he may disagree with the report and taking the view that there is
sufficient ground for proceeding further, take cognizance of the offence and issue
process Or (3) he may direct further investigation to be made by the police under
sub-section (3) of section 156, Where, in either of these two situations, the
Magistrate decides to take cognizance of the offence and to issre process, the
H
BHAGWANT v. COMM. OF POLiCB 943
informant is not prejudicially affected nor is the injured or in case of death, any A
relative of the deceased aggrieved, becau~e cognizance of the offence is taken by
abe Magistrate and it is decided by the Magistrate that the case shall proceed.
But if the Magistrate decides that there is no sufficient ground for proceeding
further and drops the proc.!edings or takes the view th~t though there is suffi-
cient ground for proce(!ding against others mentioned in the First Information
Report, the informant w0u1.1 certainly be prejudiced because the First Infor-
mation Report lodged by him would have failed of its purpose ; wholly or in D
part. Moreover, when the interest of the inforn1ant in prompt and effective
action being taken on the First Information Report lodged by him is clearly
recognised by the provisions. contained in sub.section (2) of section 154, sub-
sectiori (2) of section 157 and sub·section (2) (ii) of section 173, it must be pre-
sumed that the informant would equally be interested· in !'.eeing that the Magis-
trate takes cognizance of the offence and issues process, because that would be
culmination of the First Information Report lodged by him. The Court is c
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 cogni-
zance of the offence and to drop the proc<!edings or takes the view that there
is no sufficient grou~d for proceeding against some of the per ,ons mentioned
in the First Information Report, the Magistrate must give notice to the infor-
mant and provide him an opportunity to be heard at the time· of consideration
of the report, and the difficulty of service of notice on the informant cannot D
possibly provide any justification for depriving the informant of the opportu-
nity of being beard at the time when the report is considered by the Magis-
llate.[9470-H ; 948, 949A-CJ
2. This Court cannot spell out either from the provisions of the Code of
Criminal procedure, 1973 or from the principles of natural justice, any obli-
gation on the Magistrate to issue notice to the injured p.!rson or to a relative
of the deceased for providing such person an opportunity to be heard at the E
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 pur-
pose of deciding what action he should take on the report. The injured person
or any relative of the deceased, though not entitled to notice from· the Magis- F
trate, 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 consi-
dered by the Magistrate and if he Wants to make hh submissions in regard to
the report, the Magistrate is bound to hear him ..[949E-G]
Observation :
Gc.
Even lhough the_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.[949H, 950AJ
H
. ~44 SUPREME COURT REPORtS (1985] ~ s.c.tt.
A ORIGINAL JURISDICTWN : Contempt Petition No. 4998 of 1983
IN
CRIMINAL WRIT PETITION No. 6607 of 1981
Under Article 32 of the Constitution of India
B
Kapi/ Sibal, A.C. and Ms. Madhu Singh for the petitioner.
S.C. M"heshwari, G.D. ]upta and R.N. Poddar for the
Respondents.
The Judgment of the Court was delivered by
c BHAGWATI, J. The short question that arises for considera-
tion in this writ petition is whether in a case where First Informa-
tion Report is lodged and after completion of investigation initiated
on the basis of the First Information Report, the police submits a
report that no offence appears to have been committed, the
Magistrate can accept the report anJ drop the proceeding without
D issuing notice to the first informant or to the injured or in case the
incident has resulted in death, to the relatives of the deceased. It
is not necessary to state the facts giving rise to this writ petition,
because so far as this writ petition is concerned, we have already
directed by our order dated 28th November, 1983 that before any
final order is passed on the report of the. Central Bureau of
E Investigation by the Chief Metropolitan Magistrate, the petitioner
who is the father of the unfortunate Gurinder Kaur should be
heard. Gurinder Kaur died as a result of burns received by her
and allegedly she was burnt by her husband and his parents
on account of failure to satisfy their demand for dowry. The
circumstances in which Gurinder Kaur met with her unnatural
F death were investigated by the Central Bureau of Investigation and
a report was filed by the Central Bureau of Investigation in the
court of the Chief Metropolitan Magistrate on 11th August, 1982
stating that in their opinion in respect of the unnatural death of
Gurinder Kaur no offence appeared to have been committed. The·
petitioner was however not aware that such a report had been
G submitted by the Central Bureau of Investigation and he, therefore,
brought an application for initiating proceedings for contempt
against the Central Bureau of Investigation on the ground that
the Central Bureau of Investigation had not completed their
investigation and submitted their report within the period stipulated
by th~ Court by its earlier order dated 6th May, 1983. It was in
H reply to this application for initiation of contempt proceedings that
BBAGWANT v. COMM •.OF POLICE (Bhagwati, j.) 945
the Central Bureau of Investigation intimated that they had already A
filed their report in the Court of the Chief Metropolitan Magistrate
on 11th August, 1982 and the report was pending consideration by
the Chief Metropolitan Magistrate: When this fact was brought
to our notice we immediately passed an order dated 28th November,
1983 directing that the petitioner should be heard before any final
order was passed on the report. There was no objection on the B
part of the respondents to the making of this order, but since the
question whether in cases of this kind, the first informant or any
relative of the deceased or any other aggrieved person is entitled .
to be heard at the time of consideration of the report by
the Magistrate and whether the. Magistrate is bound to issue
notice to any such person, is a question of general importance 'c
which is likely to arise frequently in criminal proceedings, we
thought that it would be desirable to finally settle this question so as
to afford guidance to the courts of magistrates all over the country
an·d we· accordingly proceeded to hear the arguments on both
sides in regard to this question. D
It is necessary to refer to a few prov1swns of the Code of
Criminal procedure, 1973 in order' to arrive at a propor determi-
nation of this queiti.Jn. Chapter Xll of the Code \)f Criminal
Pr0cedure, 1973 deals with information to the police and their
powers to investigate. Sub-section (lJ of Section 154 prov ides that E
every information relating to the commission of a congizable
offence, if given orally to an officer-in-charge of a police station,
shall be reduced in writing by him or under his direction and be
·read over to the informant and every such information, whether
given in writing or reduced to writing, shall be signed by the person
giving it and sub-section (2) of that section requires that a copy of F
such information shall be given forthwith, free of cost, to the infor-
mant. Section is6 sub-section (I) vests in the officer-in-charge of
a police station the power to investigate any cognizable case
without the order of a magistrate and sub-section (3) of that section
authorises the magistrate empowered under Section 190 to order an
investigation as mentioned in sub-section (l) of that section. Section G
157 sub-section (l) lays down that if, from information received or
otherwise an officer in charge of a police station has reason to
suspect the commission of an offence which he is empowered under
Section 156 to investigate, he shall forthwith send a report of the
same to a Magistrate empowered to take cognizance of such offence
H
946 SUPREME COURT REPOWfS [1985] 3 s.c.R.
A upon a police report and shall proceed to the spot to investigate
the facts and circumstances of the case and, if necessary, to take
measures for the discovery and arrest of the offender. But there are
of the First Information Report lodged by him. No sooner he
lodges the First Information Report, a cow of it has to be supplied
to him, free of cost, under sub-section (2) of Section 154. If,
B two provisos to this sub-section. Proviso (b) enacts that if it appears
to the officer-in-charge of a police station that there is no sufficient
ground for entering on an investigation, he shall not investigate the
case, but in such a case, sub-section (2) of Section 157 requires that
the officer shall forthwith notify to the informant the fact that he
will not investigate the case or cause it to be investigated. What
the officer in char~e of a police station is required to do on
completion of the investigation is set out in section 173. Sub-section
(2)(i) of Section 173 provides that as soon as investigation is
completed, the officer in charge of a police station shall forward to
the magistrate empowered to take cognizance of the offence on· a
D
police report, a report in the form prescribed by the State Govern-
ment setting out various particulars including whether, in the
opinion of the officer, as offence appears to have bee~ committed
and if so, by whom. Sub-section (2)(ii) of Section 173 states that
the officer shall also communicate, in such manner as may be
prescribed by· the State Government, the action taken by him to the
K person, if any, by whom the information relating to the commis-
sion of the offence was first given. Section 190 sub-section (I) then
proceeds to enact that any magistr'ate of the first class and any
magistrate of the second class specially empowered in this behalf
under sub-section (2) may take cognizance of any offence : (a)
upon receiving a complaint of facts whii:h constitute such offence
F or (b) upon a police report of such facts or (c) upon information
received from any person other than a police officer, or upon his
own knowledge, that such offence has been committed. We are
concerned in this case only with clause (b), because the question
we are examining here is whether the magistrate is bound to issue
G notice to the first informant or to the injured or to any relative of
the deceased when he is considering the police report submitted
under section 173 sub-section (2).
It will be seen from the provisions to which we have referred
in the preceding paragraph that when an informant lodges the
..
H
'
First Information Report with the officer-in-charge of a police
BHAGWANT v. COMM .. OF POLICE (Bhagwati, J.) 947
station, h·e does not fade away with the lodging of the First
Information Report. He is very much concerned with what action is A
initiated by the officer in charge of the police station on the basis ·
of the First Information Report lodged by him. on sooner he lodges
the First Information Report, a copy of it has to be supplied
him, free of cost, under sub-section (2) of Section 154. if.
notwithstanding the First Information Report, the officer-in-charge B-
of a police station decides not to investigate the case on the view
that there is no sufficient ground. for entering on an investigation,
he is required under sub-section (2) of Section 157 to notify to the
informant the fact that he is not going to investigate the case
because it to be investigated. Then again, the officer in charge of
a police station is obligated under sub-section (2)(iil of Section 173 c-
to communicate the action taken by him to the informant and the
report forwarded by him to the magistrate under· sub-section (2)(i)
has therefore to be supplied by him to the informant. The question
immediately arises as to why action _taken by the officer in charge
of a police station on the First Information Report is required
to be communicated and the report forwarded to the Magistrate
under sub-section (2)(i) of Section 173 required to be supplied to the
informant. Obviously,· the reason is that the informant who sets
the machinery of investigation into motion by filing the First
Infomation Report must know what is the result of the investigation
initiated on the basis of the First Information Report. The informant
having taken the initiative in lodging the First Information
Report with a view to initiating investigation by the police for the
purpose of ascertaining. whether any offence has been committed and,
if so, by whom, is vitally interested in the result of the .investigation
and hence the law requires that the action taken by the officer-
\n-cbarge of a police station on the First Information Report should
be communicated to him and the report forwarded by such officer F
to the Magistrate under sub-section (2)(i) of Section 173 should
also be supplied to him.
Now, when the report forwarded by the officer-in charge of a
police station to the Magistrate under sub-section (2)(i) of Section
173 comes up for con~ideration by the Magistrate, one of two G·
different situations may arise. The report may conclude that an
offence appears to have been committed by a. particular person or
persons and in such a case, the Magistrate may do one of three
things: (I) he may accept the report and take cognizance of the
offence and issue process or (2) he may disagree with the report and u
.. 1,
948 SUPREME COURT REPORTS (1985] 3 S.C.R.
A drop the proceeding or (3) he may direct further investigation under
sub-section (3) of Section 156 and require the police to make a
further report. The report ·may on the other hand state that, in
the opinion of the police, no offence appears to have been commit-
ted and where such a report has been made, the Magistrate again
has an option to adopt one of three course~: (1) he may accept
B the report and drop the proceeding or (2) he may disagree with the
report and taking the view that there is sufficient ground for
proceeding further, take cognizance of the offence and issue process
or (3) he may direct further investigation to be made by the
police under sub-section (3) of Section 15 6. Where, in either of
these two situations, the Magistrate decides to take cognizance of the
c offence and to issue process, the in for man! is not prejudicially
/
affected nor is the injured or in case of death, any relative of the
deceased aggrieved, because cognizance of the offence is taken by
the Magistrate and it is decided by the Magistrate that the case
shall proceed. But if the Magistrate decides that there is no
sufficient ground for proceeding further and drops the proceeding
D
or takes the view that though there is sufficient ground for proceed-
ing against some, there is no sufficient groand for proceeding
against others mentioned.in the First Information Report, the infor-
mant would certainly be prejudiced because the First Information
Report lodged by him would have failed of its purpose, wholly or
E in part. Moreover, when the interest of the informant in prompt
and effective action being taken on the First Information Report
lodged by him is clearly recognised by the provisions contained in
sub-section (2) o( Section 154, sub-section (2) of Section 157 and
sub-section (2)(ii) of Section 173, it must be presumed that the
informant would equally be interested in seeing that the Magistrate
F takes cognizance of the offence and issues process, because that
would be culmination of the First Information Report lodged by
him. There can, therefore, be no doubt that when, on a considera-
tion of the report m'ade by the officer in charge of a police station
under sub-section (2)(i) of Section I 73, the Magistrate is not
inclined to take cognizance of the offence and issue process, the
G informant must be given an opportunity of being beard 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 proceeding or tahs the
H'
BHAGWANT v. COMM. OF POLICE (Bhagwati, J.) 949
view that there is no sufficient ground for proceeding against some A.
of the persons mentioned in the First Information Report, the
magistrate must glve notice to the informant and provide him an
opportunity to be heard at the time of consideration of the report.
It was urged before us on behalf of the respondents that if in such a
case notice is required to be given to the informant, it might result in
unnecessary delay on account of the difficulty of effecting service of B
the notice on the informant. But we do not think this can be' regarded
as a valid objection against the view we are taking, because in any
case the action taken by the police on the First' Information Report
has to be communicated to the informant and a copy of the
report has to be supplied to him under sub-section (2) (i) of Section
~ ...., 173 if that be so, we do not see any reason why it should be difficult
c
to serve notice of the consideration of the report on the informant.
Moreover, in any event, the difficulty of service of notice
on the informant connot possibly. provide any justification for
depriving the informant of the opportunity of being heard at the
time when the report is considered by the Magistrate. D
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 conno.t
spell out either from the provisions of the Code of Criminal E
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 inform1nt who has lodged the First
Information Report. But even if such person is not entitled to F
notice from the Magistrate, he can appear before the Magistrate
'and make his submissions when the report is co·nsidered 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,
though not entitled to notice from the Magistrate, has lccuMo
.appear before. the Magistrate at the time of consideration of the G
report, if he otherwise comes to know thai the report is going to be
considered by the Magistrate and if he wants to make his submis-
sions in regard to the report, the Magistrate is bound to hear him.
We may also observe that even though the Magistrate is not bound
to give notice of the hearing fixed for consideration of the report
950 SUPRllME COURT REPORTS [1985] 3 S.C.R.
A to the injured person or to any relative of th~ 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 of or reletives the
deceased, but not giving of such notice will not have any invalidat·
ing effect on the order which may be made by the Magistrate on a
consideration of the report.
B
\
This is our view in regard to the question which has arisen
for consideration before us. Since the question is one of general
importance, 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
c within their respective jurisdictions.
D M.L.A.
,
,
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