Magistrate cannot refuse cognizance or discharge accused without mandatory notice and hearing to the informant.

In brief

The question

1. Whether the court may decide not to take cognizance of an offence without giving an opportunity of hearing to the informant, even though a charge sheet has been filed by the police?

The court held

The Court answered both issues in the affirmative, holding that an opportunity of hearing is mandatory.

It also directed

The High Court set aside the order dated 26.09.2025 to the extent of Opposite Party No. 2 and directed the C.J.M. to re-decide the application for not taking cognizance after providing a hearing to the informant and the prosecution.

The criminal revision was allowed.

01Facts

The police filed a charge sheet in Crime No. 390 of 2024 against three individuals, including Smt. Rakhi Garg (Opposite Party No. 2), for offenses under Sections 420, 467, 468, 471, 406, 506, and 120B of the IPC.

p. 1

At the stage of taking cognizance, Opposite Party No. 2 filed an application before the Chief Judicial Magistrate (C.J.M.), Agra, requesting the court not to take cognizance and to discharge her.

pp. 1-2

On 26.09.2025, the C.J.M. took cognizance against two co-accused but allowed the application of Smt. Rakhi Garg, refusing to take cognizance and discharging her without providing the informant or the prosecution an opportunity to be heard.

p. 2

The revisionist (informant) challenged this order as being procedurally illegal.

p. 2

02Issues

i.1. Whether the court may decide not to take cognizance of an offence without giving an opportunity of hearing to the informant, even though a charge sheet has been filed by the police?

p. 2

ii.2. Whether at the stage of considering a discharge application under Section 239 Cr.P.C., the informant/prosecution is entitled to an opportunity of hearing?

p. 2

03Law Applied

The court relied on Section 239 of the Cr.P.C., which mandates that a Magistrate must give the prosecution and the accused an opportunity of being heard before deciding if a charge is groundless.

p. 3

The court applied the principle established by the Supreme Court in Bhagwant Singh v. Commr. of Police (1985) and Minu Kumari vs. State of Bihar (2006), which holds that if a Magistrate decides to drop proceedings or finds insufficient grounds against persons named in the FIR, notice to the informant and a grant of opportunity to be heard is mandatory.

¶ 12 & 14 / p. 3

Provisions in the judgment · 8 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 420 Section 467 Section 468 Section 471 Section 406 Section 506

Code of Criminal Procedure, 1973 Section 173 Section 239

04Reasoning

The Court observed that the C.J.M. passed the impugned order solely based on the material collected during investigation without recording that notice was issued to the informant or the prosecution.

pp. 2-3

Applying the Minu Kumari precedent, the Court reasoned that when a court forms an opinion not to take cognizance despite a charge sheet being filed, it is under a mandatory legal obligation to hear the informant, as the failure to do so causes "prejudice" by making the FIR partially ineffective.

p. 3

Regarding the discharge aspect, the Court noted that Section 239 Cr.P.C. explicitly requires hearing the prosecution; thus, any order passed in its absence is inherently illegal and inappropriate.

p. 3