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Hardev Singh Sandhu v. The State Of Rajasthan
Factual and Procedural Background
A complaint was filed by Shri Sardar Hardeo Singh Sandhu, Advocate, against Dr. S.M Gupta and others under various Sections of the Indian Penal Code relating to alleged negligence and misconduct in medical treatment. The Magistrate forwarded the complaint to the police under Section 156(3) Cr. P.C. The police investigated and submitted a final report under Section 169 Cr. P.C. recommending no sufficient evidence to proceed against the accused. Before the Magistrate considered the report, the complainant filed a protest petition. Subsequently, an advocate representing the accused appeared and sought permission to participate in the proceedings related to the protest petition. The Magistrate allowed the accused to participate.
Legal Issues Presented
- Whether, under Section 169 Cr. P.C., after investigation and filing of a final report by the police, an accused person who is found by the police to have no grounds for proceeding has a right to participate in proceedings when a protest petition is filed by the complainant.
Arguments of the Parties
Complainant's Arguments
- Reliance on Supreme Court precedent (Chandra Deo v. Prakash Chandra Bose) that at the stage of inquiry under Sections 200 and 202 Cr. P.C., an accused has no right to hearing or participation.
- The accused is only entitled to be present to be informed but has no right to take part in the proceedings before process is issued.
- High officers or accused persons do not have a right to join the inquiry under these provisions.
Accused's Arguments
- The accused sought permission to participate in the proceedings relating to the protest petition filed against the police final report under Section 169 Cr. P.C.
- The learned Magistrate relied on a precedent (Suraj Prakash v. Shiv Shankar) to allow the accused to take part in the proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chandra Deo v. Prakash Chandra Bose | Accused has no right to take part in inquiry under Sections 200 and 202 Cr. P.C.; accused may be present but not participate. | Distinguished from the present case where inquiry is under Section 169 Cr. P.C. after police investigation and protest petition; court held accused may be heard in limited scope. |
| Budhi Prakash v. K.C Sharma | Reiterated Chandra Deo principle that accused have no right to join inquiry under Sections 200 and 202 Cr. P.C. | Supported the complainant's contention but distinguished on facts of this case. |
| Suraj Prakash v. Shiv Shankar | Permitted accused to participate in proceedings related to protest petition under Section 169 Cr. P.C. | The learned Magistrate relied on this case to allow accused participation; court upheld this discretion. |
| Bhagwant Singh v. Commissioner of Police | Magistrate must give notice and hear first informant before dropping proceedings or refusing cognizance. | Supported the principle that complainant should be heard on protest petition; court extended this fairness to allow accused a limited hearing. |
Court's Reasoning and Analysis
The court analyzed the distinction between inquiries under Sections 200 and 202 Cr. P.C. and proceedings following a police report under Section 169 Cr. P.C. It recognized that under Sections 200 and 202, the accused has no right to participate, only to be informed. However, the case at hand involves consideration of a police final report under Section 169 Cr. P.C. after investigation, where the police found no sufficient evidence to proceed against the accused, and a protest petition was filed by the complainant.
The court observed that although the Code does not expressly provide for protest petitions, such petitions have become a practice. The Supreme Court has held that the Magistrate must hear the complainant before refusing to take cognizance. Extending principles of natural justice, the court held that if the accused wishes to be heard on whether the police report should be accepted, the Magistrate has discretion and should hear the accused, but only limited to the question of acceptance of the report and not beyond.
Thus, the court distinguished the present situation from earlier precedents that barred accused participation at inquiry stages, allowing limited participation in protest petition proceedings under Section 169 Cr. P.C.
Holding and Implications
The court dismissed the application under Section 482 Cr. P.C., thereby upholding the learned Magistrate’s order allowing the accused to participate in the proceedings related to the protest petition.
This decision affirms that in proceedings following a police final report under Section 169 Cr. P.C., the accused may be heard in a limited manner when a protest petition is filed by the complainant. The ruling does not establish a new precedent but clarifies the application of natural justice principles in such circumstances, balancing the rights of both complainant and accused at this procedural stage.
The Judgment of the Court was delivered by
M.B Sharma, J.:— In this application under Section 482 Cr. P.C a question is involved as to whether, if under Sec. 169, after investigation a report under Section 169 Cr. P.C is made by the Station House Officer of a police station and a protest petition is filed by the complainant, whether the person who is accused of an offence and against whom the police has found that there are no reasons to proceed, has a right of taking part in the proceedings or not?
2. The facts are not very much disputed and lie in a narrow compass. A complaint was filed by Shri Sardar Hardeo Singh Sandhu, Advocate, who has personally argued this case before me. The said complaint was filed against Dr. S.M Gupta and others under various Sections of the Indian Penal Code like 284, 307, 326, 328, 418, 440, 467, 491 read with Section 34 of the I.P.C It relates to some acts of negligence, Commission, or commission, attributed to the accused-persons in conducting operation upon the complainant Shri H.S Sandhu, Advocate, and giving treatment to him. The learned Magistrate forwarded the said complaint under Section 156(3) of the Code of Criminal Procedure to the police station, Sardarpura, Jodhpur, wherein police registered a case. F.I.R No. 171/84. After investigation, the S.H.O of the said police station lodged the report under Section 169 of the Code of Criminal Procedure to the Court of Judicial Magistrate No. 2, Jodhpur and that report is known as final report in this part. As a result of the investigation, the police recommended that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the Magistrate. It appears that before the report came up for consideration before the learned Magistrate, a protest petition was filed by the complainant Sardar Hardeo Singh Sandhu. At that stage, Shri Varun Gupta, Advocate, who is said to be the son of Dr. S.M Gupta, one of the accused-persons, put in appearance and sought the permission of the court to participate in the proceedings. Under the impugned order, the learned Magistrate allowed the said petitioner to participate in the proceedings relating to the protest petition.
3. The contention of the complainant, the learned Advocate, is that the law is settled by the Highest Court of the land, that at the stage of enquiry under Sections 200 and 202 of the Code of Criminal Procedure, a person who is suspected of the commission of the offence and against whom an inquiry is being made to arrive at the conclusion as to whether cognizance of an offence against him should be taken or not and a process should be issued or not, has no right of hearing. In support of this submission, the learned Advocate has placed reliance on the case of Chandra Deo v. Prakash Chandra Bose (1), which was relied on in Budhi Prakash v. K.C Sharma (2). In the case of Chandra Deo (supra), their Lordships of the Supreme Court have renewed the entire scheme contained in Chapter XVI of the Code of Criminal Procedure and have held that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. The aforesaid observations of their Lordships of the Supreme Court were quoted in Budhi Prakash's case (supra) of the Punjab and Haryana High Court and it was held that the accused-persons high officers of the Government of India have no right to join enquiry.
4. It may be stated here that the present one is not a case of that nature. Here, in this case, no inquiry was being made by the Magistrate under Section 202 of the Code of Criminal Procedure. When a report under Section 169 of the Criminal Procedure Code had been submitted by the S.H.O, police station, Sardarpura, and when it was due for consideration by the learned Magistrate, as to whether he should accept it or not a protest petition was filed by the complainant. The complainant wants to be heard on the question as to whether the report under Section 169 of the Code of Criminal Procedure should be accepted or not? In the said report, as already stated earlier, after investigation, it appeared to the Officer-in Charge of the police station, Sardarpura that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding the accused to the Magistrate. An application was filed on behalf of the accused-persons that when the protest petition is considered, he too should be allowed to participate. The learned Magistrate placed reliance on a case of this Court, reported in Suraj Prakash v. Shiv Shankar (3), allowed the accused-persons to take part in the proceedings.
5. When a protest petition is lodged and the complainant wants to be heard in support of the protest petition, if the accused-persons want to join the proceedings, to put them at par with the complainant and to comply with the principles of Natural Justice, if the learned Magistrate allows the accused to participate in the proceedings, it cannot be said that the order of the learned Magistrate is erroneous or calls for any interference. There is no provision in the Code of Criminal Procedure to file a protest petition by the informant who lodged the first information, but such has been the practice. That apart, the Supreme Court of India in Bhagwant Singh v. Commissioner of Police (4) has held that if the Magistrate decides not to take cognizance of offence or drop a proceedings against some persons mentioned in the first information report, he must give notice and hear first informant. No doubt, the Supreme Court has held in Chandra Deo's case (supra) that the accused can watch but not take part in the inquiry, but I am of the opinion that those cases will stand on a different footing than the cases in which a protest petition is lodged on a report under Section 169 of the Code of Criminal Procedure, having been filed to the Magistrate by the S.H.O after investigation. In such a case, if a protest petition is lodged by the complainant and he wants to be heard on the question as to whether the report under Section 169 of the Criminal Procedure Code should be accepted or not, if the persons who are accused of an offence and in whose favour after investigation, the police files report under Section 169 Cr. P.C, if they want to be heard, the Magistrate has a discretion to hear them, rather he should hear them in order to do justice to both the parties. But the hearing is to be confined to the point as to whether the report under Section 169 of the Code of Criminal Procedure is to be accepted or not and to no further.
6. In the result, this application under Section 482 Cr. P.C is dismissed.
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