Calcutta High Court
Sandhya Ghosh vs State Of West Bengal And Ors. on 24 June, 2005
Equivalent citations: 2005(3)CHN646
JUDGMENT
S.K. Gupta J.
1. This revisional application has been preferred under Section 401 read with Section 482 of the Cr.PC against the order dated 28.12,2004 passed by the ld. Chief Judicial Magistrate, Barasat in C Case No. 446 of 2004.
2. The case of the petitioner is that she filed an application under Section 156(3) of the Cr.PC alleging therein that on 11.05.2004 the O. P. Nos.2-7 along with police of Teheti Police Camp called on Sanat Ghosh and Ramprasad Ghosh and thereafter said Sanat Ghosh was taken away in a matador van. It has been alleged that the O. P. Nos. 2-5 ransacked the home of the defacto complainant and other villagers and destroyed the household articles and outraged modesty of the women. Said Sanat Ghosh and Ramprasad Ghosh did not return and subsequently the petitioner came to know that they were found dead in a field. It has been further contended in the said petition of complaint that the complainant was prevented by the 0. P. Nos. 2-7, with the active assistance of the police personnel, to lodge a complaint. Said petition filed under Section 156(3) of the Cr.PC. was forwarded by the ld. Magistrate on 18.05.2004 to the O. C., Barasat Police Station for causing investigation after treating the same as FIR. On 14.08.2004, the Inspector-in-Charge of Barasat P. S. submitted a report before the ld. Magistrate stating therein that Barasat P. S. has already started a case being No. 274 of 2004 dated 11.05.2004 under Section 302/34 of the Indian Penal Code in respect of the murder of Sanat Ghosh and in the said case Biswajit Ghosh, Moni Ghosh and others have been implicated as accused persons. Said Biswajit Ghosh is the son of the present petitioner. It has been alleged in the report that in order to save Biswajit Ghosh and Moni Ghosh from that case, this petitioner filed the petitioner under Section 156(3) Cr.PC and as such police prayed for dropping the matter.
3. The petitioner, on 06.12.2004 filed a protest application before the ld. Chief Judicial Magistrate, Barasat stating therein that the investigating officer without visiting the place of occurrence and examining any witness filed the final report against the O. P. Nos. 2-7. Said protest application and the report, both were taken into consideration by the ld. Magistrate, who by his impugned order was pleased to observe that as a case has already been started over the self-same incident, so the petition filed by the present petitioner under Section 156(3) of Cr.PC was not maintainable. Said order has been challenged by the petitioner on the ground that as per provisions of Section 154 of Cr. PC whenever a cognizable offence is committed, it is the duty of a police officer to record a FIR and then to proceed with the investigation of the case. Since the petition was forwarded by the ld. Magistrate to the concerned 0. C., it was his duty to investigate into the matter and thereafter to submit a report in final form. But the ld. Magistrate by his order dated 28.12.2004 was pleased to accept the report of the concerned O. C. and the complaint filed by the present petitioner, was dropped. Being aggrieved by, and dissatisfied with, the said order of the ld. Magistrate, this revisional application has been preferred.
4.I have heard the submission of the ld. Advocate for the petitioner as well as the ld. Advocate for the State and the private O. P.s. At the very outset, ld. Advocate for the State drew my attention that the petitioner has stated in the revisional application that he filed a Naraji petition before the ld. Magistrate against the report, submitted by the Officer-in-Charge. But if we closely look into the revisional application, then it will appear that in fact said petition, which has been described as Naraji petition, was filed as objection against the report submitted by the Officer-in-Charge. Be that as it may, the fact remains that a case under Section 302/34 of the Indian Penal Code was started against the son of the present petitioner and others and that case ended in submission of the chargesheet. It appears from this revisional application that the present petitioner filed a petition under Section 156(3) of Cr.PC making allegations against some other persons and that petition of complaint also to some extent related to the incident of the murder of one Sanat Ghosh for which charge-sheet has been submitted against the son of the petitioner and others. There is no dispute that when the petition of complaint was filed before the ld. Magistrate by the present petitioner, at that time the ld. Chief Judicial Magistrate, Barasat after perusal of the petition of complaint, was pleased to send the same to the O. C., Barasat P. S. for investigation under Section 156(3) Cr.PC by treating the same as FIR. When such a direction was given by a competent Criminal Court, then it was incumbent upon the concerned Officer-in-Charge of the P. S. to record an FIR and then to investigate the matter. But it appears that so far as the present case is concerned, the Officer-in-Charge of the said P. S. did not start a specific case by recording an FIR., as directed by the ld. Magistrate. The Officer-in-Charge of a police station is a creature of the statute and he is certainly bound to obey the direction of the Magistrate. Here in this case, clear direction was given upon the said Officer-in-Charge to investigate the matter by starting a specific case. But the Officer-in-Charge without starting the case submitted an interim report before the ld. Magistrate stating therein that in order to save her son and others from another murder case, the petitioner filed this petition of complaint falsely and on the basis of the said report the ld. Magistrate was pleased to drop the proceeding. So, the fact remains that the said Officer-in-Charge of the P. S. did not investigation the case at all. It is always open for him to submit a final report after making proper investigation and to say that there was no prima facie material for submitting chargesheet against the accused persons. Without doing that, it is not permissible for an Officer-in-Charge of of a P. S. to recommend for dropping of a criminal proceeding. I fail to understand as to how the ld. Magistrate could concede to such a proposal of the concerned Officer-in-Charge. In this respect, ld. Advocate for the petitioner cited decision reported in 2005, Supreme Court Cases (Cri) page 211, Upkar Singh v. Ved Prakash and Ors., wherein the Hon'ble Apex Court has observed that second complaint in regard to same incident, filed as a counter-complaint, held not prohibited under Cr.PC and as such on refusal by police to register counter-complaint, Magistrate can direct the police, at any stage-to register the complaint and investigate the same. So far as the present case is concerned, it appears that over the alleged incident, an earlier FIR was lodged which resulted in submission of chargesheet. Another petition of complaint was filed by the present petitioner arising out of the self-same incident and that petition of complaint was referred to the P. S. for treating the same as FIR under Section 156(3) of Cr. PC. I have already pointed out that an Officer-in-Charge of the P. S. is certainly bound to record an FIR., and to investigate the same and then to submit a report in final form. So far as the present case is concerned, it appears that the said Officer-in-Charge did not record the FIR. and instead submitted a written report of his own to the ld. Magistrate praying for dropping the proceeding, which the ld. Magistrate readily complied. I have got no hesitation to hold that the order of the ld. Magistrate in dropping the said proceeding is thoroughly improper and against the statutory provisions and it has certainly caused failure of justice. To my mind, it is a fit case where this Court should interfere into the said order of the ld. Magistrate and he should be directed to ask the O. C. concerned to lodge an FIR. on the basis of the petition of complaint, as forwarded to him under Section 156(3) of Cr. PC and thereafter he should be directed to make investigation and to submit a report in final form. Then and then only the Magistrate will be in a position to pass a final order, so far as this case is concerned.
5. Considering all these things, the revisional application is allowed on contest. The order dated 28.12.2004 passed by the ld. Chief Judicial Magistrate, Barasat in C Case No. 446 of 2004 is set aside. He is directed to ask the O. C., Barasat P. S. to register an FIR. on the basis of the petition of complaint which was sent to him under Section 156(3) of the Cr.PC and to investigate the same and then to submit a report in final form. After the said report is submitted, the ld. Magistrate is directed to take appropriate step and to pass appropriate order in accordance with law.
6. Send a copy of this order to the ld. Court below at once.
7. Xerox certified copy, if applied, may be handed over to the parties on urgent basis.