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It is important that when the police file a final report under Section 173 (2) of the Code of Criminal Procedure, 1973 before the learned Magistrate, the accused gets no indefeasible right to be discharged. The Hon’ble High Court of Calcutta before the Hon’ble Justice Kausik Chanda held such an opinion regarding the case of [C.R.R. NO. 1027 OF 2020] with [C.R.A.N. NO. 1 OF 2021] With [C.R.A.N. NO. 2 OF 2021].

The facts of the case were associated with the petitioner/de-facto complainant/wife by whom a complaint was lodged in Madhyamgram Police Station. The case was lodged against the opposite party no. 2/accused/husband under Sections 498A/406/506 of the Indian Penal Code, 1860. For further investigation of the accused, the petitioner filed a petition under Section 173 (8) of the Code of Criminal Procedure, 1973. It was alleged that a sum of Rs.27,55,675/- was siphoned by the opposite party no. 2, from a joint account without the knowledge and consent of the petitioner. The said petition was taken up to hearing before the learned Hon’ble Judicial Magistrate, 1st Court, at Barasat, 24-Parganas (North), and by an order dated December 18, 2019. The present revisional application has been filed, after the said order dated December 18, 2019, was challenged.

The learned advocate, Mr. Kaushik Gupta representing the petitioner contended that the Hon’ble Magistrate was not justified while ruling out the petitioner/de-facto complainant to serve a copy of the said petition upon the accused/opposite party no. 2 as the Code of Criminal Procedure, 1973 had no provision the accused should be heard in deciding an application under Section 173 (8) of the Code of Criminal Procedure, 1973. 

Mr. Gupta, representing the petitioner, in support of his submission, relied upon the following judgments: (1985) SCC (Cri) 267 (Bhagwant Singh v. Commissioner of Police), (1999) 5 SCC 740 (Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh), (2009) 6 SCC 65 (Narendra G. Goel vs. State of Maharashtra) and (2020) 4 SCC 22 (Satishkumar Nyalchand Shah v. State of Gujarat). 

The learned counsel, Mr. Prantick Ghosh, representing the opposite party no. 2, opposed the petition submitted by the petitioner and further submitted that the principle of natural justice required that the accused should be heard at the time of deciding a protest petition under Section 173 (8) of the Code of Criminal Procedure for the ends of justice. The Hon’ble Court states that when the police filed a final report under Section 173 (2) of the Code of Criminal Procedure, 1973 before the learned Magistrate, the accused gets no voidable right to be discharged. Till the final charge was framed the investigation agency or the Court can direct further investigation even after filing the final report. Hence, the Hon’ble Court viewed that the accused cannot have any right of hearing while a petition under Section 173 (8) of the Code of Criminal Procedure sought a further investigation. 

The Hon’ble High Court of Calcutta held “In view of the aforesaid discussion, I am of the opinion that the learned Magistrate in the Court below was not justified in holding that the accused should be heard to comply with the principle of natural justice in deciding the petition under Section 173 (8) of the Code of Criminal Procedure filed by the de-facto complainant.”

The Hon’ble High Court of Calcutta before the Hon’ble Justice Kausik Chanda further mentioned “… the order dated December 18, 2019, passed by the learned Magistrate at Barasat is set aside. The learned Magistrate shall decide the petition under Section 173 (8) of the Code of Criminal Procedure, 1973, filed by the petitioner within a  period of four weeks from date without giving any notice to the opposite party no. 2/accused. The revisional application being CRR No. 1027 of 2020 is allowed, and the connected applications, being CRAN No. 1 of 2021 and CRAN No. 2 of 2021 are accordingly, disposed of”.

Click here to read the judgment

Judgment reviewed by Bipasha Kundu