Should Magistrate Put Victim Or Close Relative To Notice While Considering Closure Report? J & K & L High Court Answers
The Jammu & Kashmir and Ladakh High Court observed that a Magistrate is not obligated to serve a notice to the deceased's close relatives, unless such a person is an informant who has lodged the FIR, before considering the closure report under Section 173 of the Code of Criminal Procedure,1973.
The Bench clarified that although the Code of Criminal Procedure Svt., 1989 (J&K CrPC) did not require a Magistrate to notify the victim or close relative of the deceased (the complainant) before considering the police's closure report, the complainant has the option of appear before a Magistrate and lodge a protest petition. The Court stated that if such a petition was lodged before a Magistrate passed a final order on the police report, then the Magistrate was bound to consider it before deciding on the closure report.
A Single Bench of Justice Sanjeev Kumar observed, “Under the scheme of J&K CrPC or for that matter, under the Code of Criminal Procedure, 1973, there is no obligation on the Magistrate, taking up for consideration the closure report (Ikhtitami) submitted by the police under Section 173 CrPC, to put the victim or close relative of the deceased to notice, unless such person is an informant who has lodged FIR. Section 173(2)(ii) recognizes the right of the informant, by whom the information relating to the commission of offence was first given, to have the action taken by the police on his report, communicated to him simultaneously with the forwarding of report in the prescribed form to the Magistrate empowered to take cognizance of the offence on a police report.”
Advocate Parag Sharma represented the petitioner, while Advocate Surinder Singh appeared for the respondent.
An FIR was registered based on the information received by the police through reliable sources and, therefore it was argued that there was no obligation on the Magistrate, considering the closure report, to give a notice to the informant or the complainant.
The father of the deceased had filed a protest petition before the Magistrate, but the same was filed at the time when the Magistrate had already accepted the closure report and had dropped the proceedings. “In such a situation, the Magistrate could not have reviewed its own order of accepting the closure report, but he could have still proceeded to treat the protest petition as a complaint, provided it fulfilled the requirements of a complaint. This aspect was not considered by the Magistrate,” the Court clarified.
The Revisional Court, which the father of the deceased approached, did not find any fault or infirmity in the order passed by the Magistrate accepting the closure report but relegated the father to the remedy of pressing his protest petition before the Magistrate.
The impugned order was challenged on the grounds that under Section 173 of the J&K CrPC only an informant, at whose instance an FIR had been registered, was entitled to a notice from the Magistrate before accepting the closure report and it was only the informant who was competent to file objections/protest petition before a Magistrate proposing to accept the closure report submitted by the police.
“The order of the Magistrate impugned in this petition passed pursuant to the directions of the Revisional Court is palpably wrong and erroneous, in that, the Magistrate has not treated the protest petition as afresh complaint and proceeded under Chapter XVI of the Code, but has directed reinvestigation in the matter thereby virtually reviewing its earlier order accepting the closure report. Such course was not permissible in law. It is well settled that the criminal Courts are not empowered under the Code of Criminal Procedure to review their own orders,” the Court remarked.
Consequently, the impugned order passed by the Revisional Court and the Magistrate was set aside after the Bench held that the impugned order passed by the Magistrate was illegal and non est in the eye of the law.
Accordingly, the High Court allowed the petition.
Cause Title: Sukhdev Singh v. State of Jammu and Kashmir & Ors.
