Calcutta High Court
Smt. Kalpana Ghosh vs State And Ors. on 28 July, 1995
Equivalent citations: 1996CRILJ1406
ORDER Arun Kumar Dutta, J.
1. All the three contending parties are represented by their respective learned Advocates, who have been heard at length.
2. By this application under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure (for short Code), the petitioner-accused (hereinafter referred to as the accused) has prayed the Court for quashing of the relevant proceedings, being G.R. Case No. 118 of 1988, arising out of Bagnan P.S. Case No. 11 dated 23-3-1988, pending before the Sub-Divisional Judicial Magistrate at Uluberia for the reasons stated and on the grounds made out therein.
3. Of the various grounds taken by the Petitioner, Mr. Dilip Kumar Dutta, learned Senior Counsel for the petitioner, has urged during the hearing that the learned Sub-divisional Judicial Magistrate, Uluberia (hereinafter referred to as Magistrate), while taking cognizance of the alleged offence by his order dated 3-2-1992, had not perused and taken into consideration the documents referred to under Sub-section(5) of Section 173 of the Code, which should have accompanied the Charge-sheet submitted by the Police in connection with the relevant case.
4. On perusal of the Lower Court Record it appears that the learned Magistrate had passed the following Order on 3-2-1992 :
"F.I.R. received on 24-3-88 in the above case. Received C.S. No. 93 dated 14-12-91 under Section 465/ 471/467/420, I.P.C. against the accd. Kalpana Ghosh, w/o. Sri Surya Kanta Ghosh. Cognizance is taken....
5. With the aforesaid order, as it is, there is nothing therein to indicate that the learned Magistrate had perused the documents under Section 173(5) of the Code on which the Prosecution proposes to rely in support of the Charge levelled against the Petitioner-accused. The Lower Court Record, such as it is, does neither indicate that the documents referred to in Section 173(5) of the Code had accompanied the Charge-sheet, submitted to the Court. Had the aforesaid documents accompanied the Charge-sheet, the same should have formed the part of the Lower Court Record. The very fact that it does not form part of the Lower Court Record would seem to suggest that the same did not accompany the Charge-sheet. The said conviction would all the more be confirmed by the fact that the documents under Sub-section (5) of Section 173 of the Code had been produced before the Court by the learned Advocate for the Respondent-State, as directed, which forms part of the Case diary, giving the clearest and conclusive indication that the same did not accompany the Charge-sheet submitted by the Police before the learned Magistrate. And, as already indicated above, the aforesaid relevant Order dated 3-2-92 passed by the learned Magistrate concerned does neither indicate that had perused and considered the documents under Sub-section (5) of Section 173 of the Code, which should have accompanied the Charge-sheet submitted before him by the Investigating Agency.
6. Section 173(2) of the Code provides that on completion of investigation the Police Officer investigating into a cognizable offence shall submit a report in the form prescribed by the State Govt. indicating therein the particulars to be furnished therein. Sub-section (5) of Section 173 makes it obligatory upon a Police Officer to forward, along with the Report, all documents or relevant extracts, thereof on which the Prosecution proposes to rely and the statements recorded under Section 161 of the Code of all the persons whom the Prosecution proposes to examine as witnesses at the trial.
7. In view of the decision of the Supreme Court in Satya Narain Musadi v. State of Bihar, a Police Report under Section 173(2).unaccompanied by the documents under Section 173(5) of the Code, cannot be said to be a Police Report in the eye of law, being an incomplete Report. A Magistate would be incompetent to take cognizance of an offence on such a Police Report as he would not be in a position to look to the documents, which are required to be accompanied by it, for the purpose of taking cognizance. A learned single Judge of our Court in Satya Naraian Pal v. State of West Bengal. (1990) 96 Cal WN 606 has held that since the documents and statements under Section 173(5) of the Code are parts of the Police Report they are to be placed, along with such Report, before the Magistrate/Judge at the time of taking cognizance by them, and the learned Magistrate/Judge before taking cognizance must look into the said Report and also into the documents and statements. A similar view has also been taken by another learned single Judge of this Court in his Judgment and order dated 5th May, 1995 in Criminal Revision Case No. 26 of 1995.1 have also taken a similar view in my Judgment and Order dated 28th June, 1995 passed in Criminal Revision Case No. 738 of 1992 for the reasons discussed at length therein.
8. In view of the aforesaid decisions and the fact that the documents under Sub-section (5) of Section 173 of the Code do not appear to have accompanied the Charge-sheet submitted before the learned Magistrate, and that the learned Magistrate does not appear to have looked to the said documents the relevant Order dated 3-2-92 passed by him taking cognizance of the alleged offence could not clearly to have said to be according to law, and is accordingly liable to be quashed.
9. In the aforesaid circumstances, let the matter be sent back to the learned Sub-divisional Judicial Magistrate at Ulberia for reconsideration as to whether cognizance of the alleged offence should be taken by him or not upon due application of his judicial mind according to law on the basis of the relevant Police Report submitted before him by the Investigation Agency under Section 173(2), Cr. P.C. and the accompaniments under Sub-section (5) of Section 173 of the Code. As the relevant case is pending since 1988, the learned Magistrate shall take up the matter for the aforesaid purpose, as early as possibly preferably within a period of six weeks from the date of communication of this Order and receipt of the Lower Court Records. The aforesaid relevant Order dated 3-2-92 and all subsequent orders passed in the relevant case, by the learned Magistrate are hereby set aside, in the aforesaid circumstances. If the learned Magistrate takes cognizance of the alleged offence he shall also take effective steps for expeditious trial and disposal of the case according to law.
10. Let a copy of this Order as also the Lower Court Records be sent down to the Court below forthwith. Let the original Case Docket in connection with the relevant case, produced by the learned Advocate for the Opposite Party-State before this Court containing the documents under Section 173(5) of the Code, be returned back to him so that the same may be produced before the Court below for the aforesaid purpose so as to enable the learned Magistrate to act in terms of this Order.
11. If the Petitioner-accused had been on bail, she shall continue on the same bail until further orders.
12. The instant Revisional Application be accordingly disposed of.
13. Should there be any application for urgent certified copy of this Order by the parties concerned, the concerned Department shall supply the same to them, as early as possible.
In view of the discussions above, the Respondents-Authorities clearly appear to have acted in gross violation of the aforesaid circular dated 28-3-78 and in gross violation of the principles of natural Justice and fair play in appointing the Respondent No. 6 Madhu Sudan Paridha, to the post of Caretaker under Memo. No. 1014-Edn(M) dated 8-7-82 (copy of which has been made annexure 'D' to the writ application), the way they did. The Authorities concerned by their Memo No. 690-Edn (M) dated 21-5-83, however, appears to have directed him (Respondent No. 6, Madhu Sudan Paridha) to continue work as Work Assistant and draw his remuneration as such as before in view of the Rule issued in the instant writ application and the interim order passed therein, despite the aforesaid order dated 8-7-82. There is nothing on record to indicate that the Respondent No: 6 has thereafter been appointed as Care-taker of Rabindra Sadan, Calcutta. In view of the discussions above, the Respondent-Authorities are directed to appoint the petitioner to the post of Care-taker of Rabindra Sadan, Calcutta, by quashing their Memo. No. 1014-Edn(M) dated 8-7-82 (being annexure 'D' to the writ application), which does neither appear to be in force in view of their subsequent order No. 690-Edn (M) dated 21-5-83. The appointment of the petitioner in terms of this Order must be made by the Respondent Authorities within three months from the date of communication of this order.
The Rule, is thus made absolute, and let an appropriate Writ be drawn up accordingly.
There will be no order as to costs.