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Samir Ahluwalia Petitioner v. State & Anr. S
Factual and Procedural Background
FIR No. 12/2013 was registered at PS Crime Branch on 15th January 2013 following a written complaint dated 10 January 2013 by respondent No. 2 through its Director Rajiv Bhadauria. After investigation, the police filed a final report under Section 173(2) of the Code of Criminal Procedure on 29 July 2015, stating there was no evidence to proceed against Samir Ahluwalia, the petitioner. The complainant filed a protest petition. The petitioner then sought a copy of the protest petition and an opportunity to be heard, but the learned Chief Metropolitan Magistrate (CMM) dismissed this application on 23 April 2016, holding that the petitioner had no right to participate in the adjudication of the protest petition. The petitioner’s revision petition against this order was dismissed on 15 September 2016. The petitioner subsequently filed the present petition before this Court.
Legal Issues Presented
- Whether a prospective accused has the right to be heard or to participate in the adjudication of a protest petition following the filing of a final report under Section 173(2) Cr.P.C. opining no evidence against the accused.
- Whether the petitioner is entitled to receive a copy of the protest petition and be granted an opportunity of hearing at the stage of acceptance or non-acceptance of the final report.
- The extent of rights of the accused at the pre-summoning stage under the Cr.P.C. and relevant case law.
Arguments of the Parties
Petitioner’s Arguments
- The petitioner argued that while considering acceptance of the closure report, the prospective accused should be afforded a right to be heard.
- Relied on decisions including Prashant Goel v. State, Zee News Ltd. v. State, and Sudhir Chaudhary v. State to support the claim for a right to be heard at this stage.
Respondent’s/ Court’s Position as Reflected in Lower Orders
- The learned CMM held that the accused has no right to participate in the adjudication of the protest petition as there is nothing adverse or incriminating against the accused at this stage.
- The court emphasized that the accused is not yet an accused in the formal sense and has a right to remain silent.
- Participation at this stage would prejudice the accused’s rights in later proceedings and would waste judicial time.
- The court referred to precedents and statutory provisions to reject the petitioner’s claim for hearing at this stage.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hardev Singh Sandhu (discussed in Vishu Dutt's case) | Legal principle regarding the rights of an accused at the protest petition stage. | Rejected reliance on this case by petitioner as subsequent rulings clarified the ratio. |
| Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285 | Accused has no right to be heard at the stage of cancellation or untraced report under Section 173 Cr.P.C. | Court applied this principle to hold that the accused is not entitled to hearing at the protest petition stage. |
| Prashant Goel v. State, 134 (2006) DLT 221 | Accused must be heard if their right is prejudicially affected, e.g., condonation of delay in filing complaint. | Court held this case was distinguishable and not applicable to the present stage of protest petition adjudication. |
| Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430 | Prospective accused may remain present at inquiry but has no right to participate nor can Magistrate permit such participation. | Court relied on this precedent to confirm the accused’s lack of right to participate in protest petition proceedings. |
| H.S Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh), (1980) 4 SCC 631 | Magistrate’s options on receipt of police report under Section 173(1) Cr.P.C. | Outlined the procedural framework for Magistrate’s action post-investigation report, guiding the Court’s reasoning. |
Court's Reasoning and Analysis
The Court analyzed the statutory scheme under the Code of Criminal Procedure, particularly the provisions under Chapter XII relating to investigation and final reports under Section 173 Cr.P.C. It noted that after investigation, the police may file a charge sheet, cancellation report, or untraced report, and there is no statutory provision requiring hearing of either the complainant or the prospective accused at the stage of acceptance or non-acceptance of the final report.
The Court examined the petitioner’s reliance on various precedents and found them distinguishable or inapplicable. For instance, in Prashant Goel, the issue was condonation of delay affecting the accused’s rights, which is different from the present stage. The Court also emphasized the Supreme Court’s ruling in Bhagwant Singh that the accused has no right to be heard when a cancellation or untraced report is filed.
Further, the Court observed that the petitioner’s participation would be premature and could prejudice his rights at later stages. The Court reiterated that the accused is not yet formally charged and has the right to remain silent. It also referred to the principle that the Magistrate is not bound by the police report’s conclusions and has three options upon receipt of the report, thus emphasizing procedural safeguards.
Therefore, the Court concluded that the petitioner has no right to be heard or to receive a copy of the protest petition at this stage, and the orders of the lower courts dismissing the petitioner’s application were correctly passed.
Holding and Implications
The Court dismissed the present petition, upholding the orders of the learned CMM and Additional Sessions Judge that the petitioner has no right to participate in the adjudication of the protest petition or to be supplied a copy of it at this stage.
The direct effect of this decision is that prospective accused persons do not have a statutory or inherent right to be heard or to receive documents related to a protest petition filed against a closure report under Section 173(2) Cr.P.C. This ruling reaffirms the procedural framework and safeguards the efficiency of the investigative and judicial process by preventing premature participation of accused persons before formal charges are framed. The Court did not set any new precedent beyond affirming existing legal principles.
Mukta Gupta, J. (Oral)
Crl.M.A 17705/2016
1. Exemption allowed, subject to all just exceptions.
Crl.M.C 4249/2016 & Crl.M.A 17704/2016
2. FIR No. 12/2013 was registered at PS Crime Branch on 15th January, 2013 pursuant to a written complaint dated 10 January, 2013 made by respondent No. 2 through its Director Rajiv Bhadauria. On completion of investigation, the investigating officer filed a final report under Section 173(2) of Code of Criminal Procedure on 29 July, 2015 opining that there was no evidence to proceed against Samir Ahluwalia, the petitioner herein as an accused. On a protest petition filed by the complainant/respondent No. 2, the petitioner filed an application seeking supply of copy of the protest petition and an opportunity of being heard. The application filed by the petitioner was dismissed by learned CMM vide order dated 23rd April, 2016 inter alia the following reasons:-
“13. Coming on to the aspect, whether this right can be granted to accused person, to my mind the answer is emphatic “no”. the reasons are as under:
1) there is nothing adverse/incriminating against the accused persons and invariably if he is made to participate in the said proceedings either upon his volition or upon his insistence, the order passed at the time of adjudication of protest petition shall be after hearing either side - binding upon the accused also. Unnecessarily this stage shall result in participation of accused and thereafter such a order shall also prejudice his right to address at a later stage, if any;
2) Court has no power to call him - in as much as, his status is not of an accused person.
3) Prospective accused is also not supposed to state his version and has a right to keep silent.
4) Such an adjudication is not warranted by CrPC and would only result in waste of judicial time - an exercise which may be repeated at later stages of the case.
14. Coming on to the ratio of Hardev Singh Sandhu's case (supra) as mentioned, the said judgment has been discussed in subsequent case of Vishu Dutt's case (supra) by Hon'ble Rajasthan High Court wherein the ratio of Chandra Dev Singh (supra) has been reiterated. Thus, on this aspect also no reliance can be placed by the applicant.
15. Coming on the aspect of the situation wherein, the right of the accused persons is there, as mentioned earlier, these are needless to state statutory provisions wherein the accused is given right to be heard, same cannot be extended to the stage as sought for by ld. counsel for applicant.
16. In view of the aforesaid discussion, this application is without any merit and the applicant cannot be given the right to participate in the adjudication of the protest petition. Same is dismissed. Needless to state that these observations are only on the aspect of the participation of Samir Ahluwalia in the adjudication of protest petition and nothing more.”
3. Aggrieved by the order dated 23 April, 2016 passed by learned CMM, the petitioner preferred a revision petition which was dismissed vide the impugned order dated 15 September, 2016. Hence the present petition.
4. Before this Court, learned counsel for the petitioner reiterates his submissions made before learned CMM and learned Additional Sessions Judge that while considering the acceptance of the closure report, the prospective accused should be afforded a right to be heard. Learned counsel for the petitioner places reliance on the decisions of this Court reported as 134 (2006) DLT 221 Prashant Goel v. State and the order dated 25 April, 2016 of this Court in Crl.M.C No. 2565/2013 (Zee News Ltd. v. State) and transfer petition TRP. Crl. No. 45/2014 (Sudhir Chaudhary v. State).
5. During investigation the role of investigator is not only to collect material in favour of the complainant version but he has to collect entire material whether in favour or against the complainant and in favour or against the accused. Only on collection of the entire material the investigating officer can form the final opinion as to whether the final report under Section 173 Cr.P.C is to be filed for the trial of the accused or a cancellation report. He is free to form the opinion on the basis of material facts collected by him. As held by the Supreme Court in the decisions reported as (1980) 4 SCC 631 H.S Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) and India Carat Pvt. Ltd. (supra) on receipt of the final report the Magistrate has three options:-
“6…..Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”
6. As per the provisions of Chapter XII of Code of Criminal Procedure after registration of the FIR, the officer incharge of the police station or officer authorised has to carry out investigation and on completion thereof file a final report under Section 173 Cr.P.C The final report so filed under Section 173 Cr.P.C is of three kinds though not named in the Cr.P.C i.e charge sheet for trial of accused, cancellation report opining that no case is made out for proceeding against the accused or an untraced report stating that despite efforts, evidence could not be found out. There is no provision in the Cr.P.C that at the stage of acceptance or non-acceptance of the final report, either the prospective accused or the complainant is required to be heard however in view of the decision of the Supreme Court reported as AIR 1985 SC 1285 Bhagwant Singh v. Commissioner of Police since in the case of cancellation report or an untraced report an order adverse to the complainant for not proceeding against the accused may be passed though the complainant has a right to be heard however the accused has no right to be heard.
7. Reliance of learned counsel for the petitioner on Prashant Goel (supra) is misconceived. In the said case the accused was effected as delay in filing the complaint was condoned without hearing the accused. It is in light of the fact that delay had been condoned without hearing the accused, the Court held that since the right of the accused was prejudicially effected, the order condoning the delay could not have been passed without hearing the accused. Section 468 Cr.P.C bars cognizance on a complaint if the same is instituted after the lapse of the period of limitation unless the Court extends the time if properly explaining the delay or in the interest of justice under Section 473 Cr.P.C It is well settled that if a proceeding is not instituted in time, even though the right may not be lost but the remedy is lost. Thus, to permit a party to avail the remedy which it has lost cannot be without hearing the party against whom the order adverse may be passed.
8. Learned counsel for the petitioner referring to the decision in Zee News (supra) refers to para 65 of the said judgment wherein the Court noting the decision reported as AIR 1963 SC 1430 Chandra Deo Singh v. Prokash Chandra Bose observed that it was open to the prospective accused to remain present when the inquiry is underway before the Magistrate at the pre-summoning stage. In para 65, this Court also noted that the accused has “no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so as observed by the Supreme Court in Chandra Deo (supra).
9. The prayer in the application before the learned CMM was that the petitioner be supplied copy of the protest petition and he be heard. It is well settled that at this stage, the prospective accused has no right to be heard. Thus finding no error in the two orders passed by learned CMM and learned Additional Sessions Judge, the present petition and application are dismissed.
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