Pat HC | High Court cannot be approached under Art. 226 when opportunity of hearing before a Magistrate is not availed

Patna High Court: Ashwani Kumar Singh, J. dismissed the application to quash the police report submitted by the investigating officer as it was the prerogative of the Magistrate concerned and not the instant Court.

The petitioner filed an application under Articles 226 and 227 of the Constitution of India for quashing the final report submitted by the Assistant Sub-Inspector of Police, who had investigated the case filed by the petitioner.

It was contended by the petitioner that initially a complaint case was filed by the petitioner in the Court of Chief Judicial Magistrate, which was referred to the police under Section 156(3) of the Code of Criminal Procedure (“CrPC”), pursuant to which a police case was registered and investigation was taken up. In the complaint, it was alleged that the accused persons had cheated the petitioner by preparing a forged and fabricated registered sale deed. The petitioner submitted that the investigating officer did not investigate the case in a fair and impartial manner and submitted a collusive police report under Section 173(2) of the CrPC holding the case to be a civil dispute, which according to the petitioner, could by no stretch of imagination, be said to be a case of civil dispute. The petitioner prayed for setting aside the police report.

Sheo Shankar Prasad, appearing for the State contended that the contentions advanced by the petitioner that the police submitted a collusive report had no legal basis. The police report submitted before the Court was based on the outcome of investigation since the witnesses, whose statements were recorded in course of investigation, had not supported the allegations made in the complaint. Counsel also urged that under any circumstance, the Court was not bound by the opinion of the police. In case there were materials to proceed with the case, the Court of Magistrate had the jurisdiction to take cognizance of the offence and proceed with the trial of the accused persons, and it was not proper for this Court to quash the report submitted by the police after completing the investigation of the case.

High Court held that it was a well-settled position in law that a report submitted under Section 173(2) of the CrPC was not binding on the Court. The Court of Magistrate may agree with the police report or it may differ with the conclusions arrived at by the police. At the stage of the investigation, the Court has no say. However, as soon as the investigation was completed and a report was submitted under Section 173(2) of the CrPC, the investigating agency was required to forward to the Magistrate empowered a report in the prescribed format so as to pass an order in accordance with the law. The Magistrate empowered is not bound by the conclusions arrived at by the police. Before accepting the police report submitted under Section 173(2) of the CrPC, the Magistrate was also required to hear the informant of the case, who set the machinery of an investigation into motion. Instead of appearing before the Magistrate and placing his case before him, the petitioner chose to file the instant application for setting aside the police report, which was not permissible in law in view of not availing the opportunity of hearing before the Magistrate concerned.

In view of the above-noted facts, the instant application was dismissed as no case was made out for interfering with the police report by the instant Court. [Janeshwar Sharma v. State of Bihar, Criminal Writ Jurisdiction Case No. 2638 of 2017, decided on 30-09-2019]

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