The Supreme Court has confirmed the judgment of Madras High Court whereby it was held that a Petitioner, being a victim, is mandatorily entitled to notice before acceptance of final report of the Police and in case such a notice is not served, he has a right to file a protest petition.
While holding so, the High Court had directed the Magistrate concerned, to take up the matter relating to a scam made in respect of the high value lands of the Complainant (Respondent herein) afresh and pass orders on merits, within a period of two months.
The said order was assailed by the Petitioners before the Supreme Court, by way of a Special Leave Petition. Dismissing the same, the bench of Justices Mohan M. Shantanagoudar and R. Subhash Reddy said,
“We do not find any ground to interfere in the impugned order of directing the Magistrate to hear on the protest petition. We clarify that the concerned Magistrate will hear the petitioners also on protest petition and take decision on the point of issuing process or not. The observations made during the course of the impugned order will not stand in the way of the learned Magistrate while deciding protest petition.”
In this regard, the top court had earlier held in Vishnu Kumar Tiwari v.State of UP 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 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.
The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective.”
In the present case the Petitioners (originally Respondents) were accused of creating false bogus and forged documents to grab the Complainant’s land. However, they were not named in the final police report. Nevertheless, instead of putting the Complainant to notice before accepting the final report or directing further investigation, the Trial Court took cognizance of the matter.
Before the high court, the Complainant submitted that law mandates notice on the victim and the Judicial Magistrate having found that the Complainant was a victim, ought not to have taken cognizance of the final report without any notice being served on him, especially when charges were dropped against persons bearing specific allegations.
Agreeing with this, the high court had said,
“When the Petitioner/victim being a person interested in the complaint is not put on notice of the final report filed in this case, this Court would view the matter placing itself at the stage when the final report was filed before the Magistrate. What follows would be that at such stage, the Petitioner has a right to file a protest petition.”.