The principle of natural justice is attracted in a case where it is shown that an accrued right is sought to be taken away: Calcutta High Court
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”.
 IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION The Hon’ble Justice Kausik Chanda C.R.R. NO. 1027 OF 2020 C.R.A.N. NO. 1 OF 2021 C.R.A.N. NO. 2 OF 2021 SMT.SIULI CHOUDHURY VERSUS THE STATE OF WEST BENGAL AND ANOTHER For the petitioner Mr. Kaushik Gupta Adv. Mr. Siddhartha Sarkar Adv. Mr. Anirban Tarafder Adv. Mr. Arnab Nandi Adv. For the opposite party no. 2 : Mr. Prantick Ghosh Adv. For the State Ms. Sukannya Bhattacharyya Adv. Mr. Md. Kutubuddin Adv. Hearing concluded on 12.07.2021 Judgment on 20.09.2021 Kausik Chanda J.: The petitioner de facto complainant wife lodged a complaint before the Madhyamgram Police Station following which Madhyamgram Police Station Case No. 7715 under Sections 498A 406 506 of the Indian Penal Code 1860 was registered against the opposite party no. 2 accused husband. Upon completion of the investigation a charge sheet was filed by the investigating agency under Sections 498A 406 506 of the Indian Penal Code 1860 against the opposite party no. 2. The petitioner however was not satisfied with the investigation and she filed a petition under Section 173of the Code of Criminal Procedure 1973 for further investigation of the case. In the said petition the petitioner alleged that the investigating agency had failed to record the statement of the de facto complainant or the statements of her brothers and mother. It has further been alleged that the opposite party no. 2 siphoned off a sum of Rs.27 55 675 from a joint account without knowledge and consent of the petitioner and in spite of bringing the said fact to the notice of the investigating officer the charge sheet was silent about that. It was alleged that the investigation was carried out in a partisan manner to shield the opposite party no. 2 and had not been carried out in a proper and objective manner. The said petition was taken up to hearing before the learned Judicial Magistrate 1st Court at Barasat 24 Parganas and by an order dated December 18 2019 the learned Magistrate directed the petitioner to serve a copy of the said petition under Section 173 of the Code of Criminal Procedure 1973 to the opposite party no. 2. The learned Magistrate observed that hearing of the said petition should be done in presence of the opposite party no. 2 in compliance with the principle of natural justice. Challenging the said order dated December 18 2019 the present revisional application has been filed. 7. Mr. Kaushik Gupta learned advocate appearing for the petitioner submits that the learned Magistrate was not justified in directing the petitioner de facto complainant to serve a copy of the said petition upon the accused opposite party no. 2 inasmuch as there is no provision in the Code of Criminal Procedure 1973 that the accused should be heard in deciding an application under Section 173 of the Code of Criminal Procedure 1973. It has been further submitted by Mr. Gupta that a further investigation is carried out in terms of Section 156of the Code of Criminal Procedure only and since at the investigation stage the accused has no right of hearing the accused need not be heard at the time of deciding a petition under Section 173of the Code of Criminal Procedure filed at the behest of the de facto complainant. 8. Mr. Gupta in support of his submission relied upon the following judgments: SCC 267 (1999) 5 SCC 740(2009) 6 SCC 65 and 4 SCC 22of the Code of Criminal Procedure for the ends of justice. 10. The only point of law that arises for consideration is whether an accused has a right of hearing at the time of deciding a protest petition under Section 173of the Code of Criminal Procedure before the learned 11. The said issue appears to have been decided by the judgment delivered in Sri Bhagwan Samardha case. It has been held in the said judgment by the Supreme Case as Magistrate. follows: “10. Power of the police to conduct further investigation after laying final report is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it we would not burden the Magistrate with such an obligation.” 13. The said view of the Supreme Court was followed in the subsequent judgments delivered by the Supreme Court in Narendra G. Goel and Satishkumar Nyalchand Shah CRI. L.J. 2738of the Code of Criminal Procedure 1973 before the learned Magistrate the accused gets no indefeasible right to be discharged. In terms of Section 173 of the Code of Criminal Procedure 1973 it is open for the investigating agency or for the Court to direct further investigation even after filing the final report till the charge is framed 17 SCC 1 SCC 260of the Code of Criminal Procedure seeking further investigation is taken up for consideration by the learned Magistrate. 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 of the Code of Criminal Procedure filed by the de facto complainant. In my view the judgment reported at SCC 267 Bhagwant Singh v. Commissioner of Police) is not relevant to the present case since the said case dealt with the right of the de facto complainant and the victim or his relatives to be heard at the time of considering the final report filed by the investigating agency. In view of the discussion above the order dated December 18 2019 passed by the learned Magistrate at Barasat is set aside. 19. 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. 20. The revisional application being CRR No. 1027 of 2020 is allowed and the connected applications being CRAN No. 21 and CRAN No. 21 are accordingly disposed of. 21. Urgent certified website copies of this judgment if applied for be supplied to the parties subject to compliance with all requisite formalities. 