NIDHIN GEORGE Vs. STATE ( K.HARIPAL,J. )

JUDGEMENT

(1.) Petitioner is the defacto complainant in crime 661/2014 of Ettumanoor police station. That crime was registered alleging offence under Ss. 452 and 395 read with 120B of the IPC and also under certain provisions of the Money Lenders Act. On conclusion of investigation, final report was filed referring the crime. The grievance of the petitioner is that he was not served with the refer notice. In this connection reliance was placed on the copy of order sheet of the Judicial First Class Magistrate-I, Ettumanoor, where it is shown that on 29/8/2019 notice was ordered to be repeated on the respondent/the defacto complainant through registered post returnable by 16/11/2019. On 16/11/2019, there was no sitting and the case was adjourned to 6/2/2020 by notification. On 6/2/2020, when the case was taken up, since there was no representation for the defacto complainant, assuming that notice to the defacto complainant was "deemed to be sent", the refer report was accepted and the case was closed. Challenging the said order, the defacto complainant has moved this revision.

(2.) After hearing the learned counsel on both sides, I have no doubt that the procedure adopted by the learned Magistrate is illegal and in violation of the standing instructions and also authoritative pronouncements of the Apex Court and this Court in accepting a final report. The directives issued by the Apex Court in the oft quoted decision in Bhagwant Singh v. Commissioner of Police and another [AIR 1985 SC 1285] cannot be ignored by the Court. It is apposite to extract the following observations of the Apex Court which are very relevant in the present context:

(3.) It is not known as to what the learned Magistrate meant when the final report was accepted taking notice as 'deemed to be sent'. If the learned Magistrate was in mind that the notice that might have been served by the investigating agency under Sec. 173(2)(h)(ii), there also the Court has failed to follow the procedure. This aspect has been considered specifically by the Apex Court in Union Public Service Commission's case, quoted supra, where the Court was adverting to sufficiency of the notice issued by the CBI, the investigating agency in that case, to the defacto complainant. The Court held that as per the law laid down in Bhagwant Singh's case, quoted supra, the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is a "must". The Court further held that issuance of notice by the CBI to the party was not a substitute for the notice which was required to be given by the Magistrate in terms of the judgment in Bhagwant Singh's case. According to the Apex Court, the learned Magistrate could not in any event 'delegate' to the investigating agency its function for issuing notice. Moreover, when law requires a particular thing to be done in a particular manner, it must be done in that manner and in no other manner.