Calcutta High Court (Appellete Side)
Sri Sumanta Sinha & Ors vs The State Of West Bengal on 16 September, 2013
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL/APPELLATE JURISDCITION
APPELLATE SIDE
Present: The Hon'ble Justice Ashim Kumar Roy
C.R.R 3136 of 2013
Sri Sumanta Sinha & Ors.
-vs-
The State of West Bengal
For the Petitioner : Mr. Abhra Mukherjee,
Mr. S.N. Bhattacharyya,
For the State : Mr. Ayan Bhattacharyya,
Heard on : 11 .09.2013
Judgement : 16.9.2013
Ashim Kumar Roy, J.
The petitioners were arraigned as accuseds in connection with Behala Police Station Case No. 207 of 2009 under Sections 498A/302/120B/34 of the Indian Penal Code. After completion of investigation of the said case, on January 29, 2010, the police submitted the charge sheet under Sections 498A/34 of the Indian Penal Code. When the de facto complainant of the case having come to learn about the result of the investigation, on April 17, 2010, filed an application praying for further investigation in the matter. On July 18, 2010, the court concerned allowed the prayer for further investigation.
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Now, after expiry of three years and three months, in this criminal revisional application, the petitioners have challenged the said order of further investigation.
Now, relying on the decision of the Hon'ble Apex Court in the Case of Reeta Nag -vs- State of West Bengal reported in 2010(I) Cal. Cri. L.R (S.C.) 528, it is contended when the investigation agency has not applied for further investigation on the basis of the application filed by the de facto complainant, the court below has exceeded its jurisdiction in directing further investigation and therefore the said order ought to be quashed. In this regard the learned counsel for the petitioners draws the attention of this court to the observation of the Apex Court in paragraphs 19, 20 and 21 of the aforesaid decision.
"What emerges from the above-mentioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) CrPC and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section 173(8). The Magistrate cannot suo moto direct a further investigation under Section 3 173(8) CrPC or direct a re-investigation into a case on account of the bar of Section 167(2) of the Code". (para 19) "In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8), was a direction given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant". (para 20) "Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) CrPC, the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of section 319 of the Code at the stage of trial". (para 21) On the other hand Mr. Ayan Bhattacharjee, learned advocate appearing on behalf of the State vehemently disputed the contention of the learned counsel of the petitioner. He contended that aforesaid decision was delivered by a bench comprising of two Hon'ble Judges 4 of the Supreme Court whereas the three Judges Bench of the Hon'ble Supreme Court in the case of Samaj Parivartan Samudaya and Others versus State of Karnataka and Others reported in (2012) 7 SCC 407 took completely a different view on this score and according to the Apex Court it is always permissible for the learned Magistrate before whom a charge sheet has been submitted to direct further investigation suo moto or even on the basis of the naraji petition filed by the de facto complainant. In this regard he draws my attention to the observation of the Hon'ble Apex Court in paragraph 27 of the aforesaid decision. Which is quoted below:-
"27. Once the investigation is conducted in accordance with the provisions of Cr.PC., a police officer is bound to file a report before the court of competent jurisdiction, as contemplated under Section 173 CrP.C., upon which the Magistrate can proceed to try the offence, if the same were triable by such court or commit the case to the Court of Sessions. It is significant to note that the provisions of Section 173(8) CrP.C. open with non obstante language that nothing in the provisions of Sections 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-Section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), where charge-sheet has been filed, that court also 5 enjoys the jurisdiction to direct further investigation into the offence. This power cannot be have any inhibition including such requirement as being obliged to hear the accused before any such direction is made."
In this regard the learned counsel for the State referred an earlier three Judges Bench decision of the Hon'ble Apex Court in the case of Bhagaban Singh versus Commissioner of Police reported in (1985) 2 SCC 437 and what have been observed in para 4 thereof. Which is quoted below:
"Now, when the report forwarded by the officer in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue [process, or (2) he may disagree with the report and drop the proceeding, or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have 6 been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding, or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process, or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report, the informant would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part.
Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is 7 clearly recognised by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. there can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub- section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might 8 result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the first information report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate." (para 4) In addition to above the learned counsel for the State also relied on decision of the Apex Court in the case of Vinay Tyagi versus Irshad Ali @ Deepak and Others reported in (2013) 5 SCC 762. Which is a decision of a co-ordinate bench as that of the decision referred by the learned counsel for the petitioner. In this regard the learned counsel for the State referred what have been observed in para 38, 39, 40.1, 40.2, 40.3, 40.4, 40.5 and 40.6. Those observations are quoted below:
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"However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct "further investigation" and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in Bhagwant Singh has, in no uncertain terms, stated that principle, as aforenoticed." (para 38) "The contrary view taken by the Court in Reeta Nag and Randhir Singh do not consider the view of this Court expressed in Bhagwant Singh. The decision of the Court in Bhagwant Singh in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a Magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three-Judge Bench concluded as aforenoticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh, are thus squarely in line with the doctrine of precedent. To some extent, the view expressed in Reeta Nag, Ram Naresh and Randhir Singh, besides being different on facts, would have to be examined in light of the principle of stare decisis." (para 39) 10 "Having analysed the provisions of the Code and the various judgments as aforeindicated,, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code." (para 40) "The Magistrate has no power to direct "reinvestigation" or "fresh investigation" (de novo) in the case initiated on the basis of a police report." (para 40.1) "A Magistrate has the power to direct "further investigation" after filing of a police report in terms of Section 173(6) of the Code." (para 40.2) "The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case by a three-Judge Bench and thus in conformity with the doctrine of precedent." (para 40.3) "Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such 11 power would have to be read into the language of Section 173(8)." (para 40.4) "The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own." (para 40.5) "It has been a procedure of propriety that the police has to seek permission of the court to continue "further investigation" and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case." (para 40.6) Having regard to the rival submissions of learned counsels appearing for the parties and considered the citations they have referred. I find there is sufficient force in the submission of the learned counsel for the State and find there is no force in the argument of the learned counsel of the petitioner on the face of the 12 decisions cited by the counsel for the State. In the light of the law as laid down in the aforesaid cases referred to by the learned counsel for the State, I find no illegality has been committed by the learned Magistrate in passing a direction for further investigation on the protest petition filed by the de facto complainant, since there is no bar in entertaining protest petition to pass order for further investigation.
Furthermore, it is an admitted position, pursuant to the order of further investigation passed by the learned Magistrate more than three years back already further investigation has been concluded and police report has been filed, therefore the contention of the learned advocate of the petitioner at any rate has become infructuous.
For the reasons stated above, I find no merit in this application and same is dismissed.
I, however, make it clear I have not gone into the merits of the materials which are the part of the charge sheet and it will be open to the petitioners to challenge the same at the appropriate stage of the trial.
Office is directed to communicate this order.13
Criminal Section is directed to deliver urgent photostat certified copy of this order to the learned advocate for the petitioner, if applied for, as early as possible.
(Ashim Kumar Roy, J.)