Calcutta High Court
Umanath Chowdhury And Anr. vs Rahul Dutta And Ors. on 7 October, 2002
Equivalent citations: (2003)2CALLT51(HC)
JUDGMENT G.C. De, J.
1. By this application under Section 401 read with Section 482 of Cr.PC the present petitioners have prayed for setting aside the order dated 19.3.2002 passed by the learned Judicial Magistrate, 6th Court, Sealdah, 24-Parganas (South) in G.R. Case No. 219 of 1995 and T.R. No. 3 of 1999. By the said order, the learned Magistrate, after full trial found both the accused persons, figured as opposite parties Nos. 1 and 2 in this case, not guilty to the charge and acquitted them under Section 248(1) CrPC.
2. All the parties appeared and contested this application.
3. It is to be noted that on the basis of a complaint filed by the present petitioners on the allegations that in the night between 5th and 6th August, 1994, the accused persons entered into a criminal conspiracy and criminally trespassed into the premises No. 22/1/1A, Raja Manindra Road and broke open the doors and windows of the said premises and took possession of the same and also committed theft in respect of some articles kept therein. On the basis of the said complaint, the police started investigation after treating the complaint as FIR and on completion of investigation submitted a charge sheet. The learned Magistrate, thereafter framed charge under Section 456, 114 IPC. Both the accused persons pleaded not guilty to the charge and accordingly the prosecution produced altogether four witnesses including the Investigating Officer. No defence witness was adduced and after hearing both sides, the learned Magistrate came to the conclusion that the case was not proved due to the laches on the part of the prosecution and thereafter found both the accused persons not guilty to the charge and acquitted them in the manner as indicated hereinabove.
4. In course of hearing the learned counsel appearing for the petitioners took a plea that the case was not properly conducted by the prosecutor and no opportunity was given to the defacto-complainant to produce the documents those were produced before the Investigating Officer. It is also contended that the police also did not investigate the case properly and submitted the charge-sheet without including the allegation of theft in respect of the articles kept inside the premises No. 22/1/1A Raja Manindra Road.
5. However, the learned counsel appearing for the State and the opposite parties Nos. 1 and 2 contended that the prosecution having failed to prove the case against the accused persons, the learned Magistrate had no other alternative than to acquit both the accused persons after finding them not guilty to the charge.
6. In course of hearing of this case, a vital point was indicated by the learned counsel for the petitioners pointing out that the defacto-complainants had no role to play either in the investigation or in the trial of the case inasmuch as the investigation was done by the police and the trial was conducted by the Prosecutor appointed by the State. It is contended that the investigation was done without taking into consideration the materials produced before the Investigating Agency by the defacto-complainant, and subsequently, the Public Prosecutor who prosecuted the case on behalf of the State did not take appropriate care to ascertain as to whether the charge-sheet was properly filed or the charge was properly framed, nor he took initiative for proper trial.
7. It appears from the written complaint that there is a specific allegation of trespass by night and also theft in respect of the articles. But the police investigated the case and filed the charge-sheet without indicating whether any theft was committed or not. It appears that the learned Magistrate took cognizance of the case in a casual and routine manner without any application of mind and without examining the materials collected in course of investigation. It was not ascertained by him whether the investigation was conducted in consonance with the complaint and whether the charge-sheet was properly filed or there was necessity of further investigation. On the other hand, after taking of cognizance by the learned Magistrate, copies of the police papers were supplied to the accused persons and thereafter charge was framed, and ultimately the defacto-complainant was called in as a prosecution witness on the basis of summons. It is pointed out that before the examination of the defacto-complainant as a witness the prosecution is not in duty bound to show or indicate the statement recorded under Section 161 of the Code of Criminal Procedure by the Investigating Agency either to the defacto-complainant or to the witnesses, for which it is not possible on the part of the defacto-complainant or the witnesses to ascertain actually in respect of which charge they were going to dispose.
8. In this case, the entire proceeding was being conducted by the prosecutor engaged by the State, and the defacto-complainant had no opportunity to interfere with the trial by engaging any lawyer. It is sufficiently clear that though the case was started on the basis of a complaint of a private individual, he had no knowledge about the mode of investigation nor he played any part in the trial itself excepting appearing as a witness. In fact it was an action between the Investigating Officer and the prosecution on the one hand and the accused persons on the other.
9. Generally whenever a case is started by the police on receipt of a complaint, it is kept out of the touch or reach of the defacto-complainant inasmuch as the investigating agency being backed by the wide power of investigation seldom feels in necessary to keep the defacto-complainant informed about the progress of the case. The materials collected in course of investigation may not be disclosed to him, nor there is any obligation to apprise him about the progress. The materials collected in course of investigation are actually placed in the police papers or not is also not possible for him to ascertain. Even the investigating agency has the privilege of not recording the statement properly under Section 161, or to collect materials or statements even against him or to distort the statements,
10. Before the new Cr.PC when the trial in police investigated cases were conducted by the police personnel as the prosecutor noticeable efficiency in the investigation on private complaints was noticed, since the capability of an Investigating Officer was being tested by such Police Prosecutor. System of rewarding the good and efficient investigators and punishing the incapable or inefficient investigators was in vogue. Even the future of the police prosecutors were also dependent on successfully handling the role of a prosecutor. But after the introduction of the system of lawyer-prosecutor or the salaried prosecutor in the new Code, the effective control on the Investigating Officers is gradually in the process of deterioration, and there is practically no effective system of monitoring the investigation in respect of private complaints. Though in most of the States there is a post of Director of Prosecution, but his office is not appropriately utilised in such type of cases for Jack of knowledge of the general public as to the role to be played by such office. Before filing of the charge-sheet or Final Report the concerned officers of the State are generally consulted, but it is a common experience that such officers act casually or in a routine manner. Practically there is no system on the basis of which the private complainant can ascertain as to whether the investigation in a complaint has been properly done or not, or whether the case made out in a complaint (treated as FIR) was taken proper care by the Investigating Officer.
11. The investigation of such private complaints though done after giving an intimation to the Magistrate, but the Magistrate is no competent in law to control such investigation or to ask the Investigating agency to submit a charge-sheet. The only power the Magistrate can exercise is the order of reinvestigation if he is not satisfied about the investigation after the filing of the charge-sheet. It is to be noted that at such a stage the Magistrate is neither helped by the Prosecutor nor by the defacto-complaint and as such, the Magistrate is required to act unilaterally after perusing the police papers.
12. In case of a final report to the effect that no case is made out in course of investigation, a notice is being issued to the defacto-complaint before acceptance of such final report. The law is also well settled in this regard. In such a situation the defacto-complaint gets a chance to challenge the investigation or the Final Reports, and the Magistrate also gets adequate help from him for deciding the course of action.
13. But in case of filing of a charge-sheet, it is generally seen that no notice is sent to the defacto-complainant. On the other hand, the ministerial officer in a Court of Magistrate enters the factum of submission of the charge-sheet in the order sheet and the Magistrate in a routine or casual manner takes cognizance of the case. Thereafter, the Prosecutor attached to the Court appears on getting the brief which contains copies of the police papers submitted under Section 173(2) of the Code. Such prosecutor in his turn does not get any opportunity to ascertain whether the charge-sheet has been properly filed after an efficient or proper investigation. There is practically little scope on his part to challenge the taking of cognizance by a Magistrate or to render assistance in perusing the Report, Inasmuch as such cognizance is taken before his appearance. There is also no system at that stage to ascertain as to whether the allegations made in the private complaint are properly taken care of in the charge-sheet. Thus gives a free hand to the investigating agency either to minimise the offence as made out in the complaint, or to introduce sections of lesser offences, at the detriment of the defacto-complainant. Thereafter on supply of the police papers to the accused, charge-sheet is framed, may be under lesser sections, and subsequently the defacto complainant or the witnesses are summoned and on their appearance the prosecutor proceeds with the trial and the defacto complainant is kept in darkness about the fate of his case. In this way the justice system is denied to the defacto complainant. Even the attempt on the part of the defacto-complainant to engage his lawyer is not looked favourably either by the defence, or by the prosecutor and even by the Court.
14. It is rightly argued that there is a belief that it is difficult on the part of the defacto-complainant to get proper relief of his grievances in a Court of law. The law is well settled that the accused should get proper justice. But while appreciating such a principle, it is difficult to consider that proper justice is to be denied to the defacto-complainant. In the eye of law both are equals and as such, it is incumbent upon the Court to see that proper justice is not only done to the accused but it is equally done to the defacto-complainant.
15. There are several provisions in the Code for ensuring proper justice to the accused. But there are also provisions in the Code for ensuring that proper justice is not denied to the defacto-complainant. In Bhagwant Singh v. Commissioner of Police and Anr. , the Apex Court pointing out different provisions in the Code indicated that the complainant is entitled to get a copy of the FIR free of cost under Section 154(2) and has a right to be notified by the Investigating Officer under Section 157(2) of the Code that there will be no investigation in the case. The view was also taken that the Officer-in-Charge of a Police Station while forwarding to the Magistrate empowered to take cognizance of an offence on a police report under Section 173(2)(i) of the Code on completion of investigation and if the Magistrate 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 FIR, the Magistrate must give notice to the informant and opportunity be given to the informant of being heard at the time of consideration of the report. Of course in the cited decision, the Apex Court was considering whether the injured person or a relative of the deceased who is not the informant is entitled to get a notice when the report filed under Section 173(2)(i) comes up for consideration by the Magistrate, and the view was taken that the Injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate. It was also observed that though the Magistrate was not bound to give notice of hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit gives such notice to the injured person or to any relative or relatives of the deceased. But at the same time the Apex Court analysed the entire provisions of Sections 154, 156, 157, 173 and 190 of the Code and took the view that under Section 173(2)(ii) of the Code it is incumbent upon the Officer-in-Charge of a Police Station to communicate action taken by him to the informant and the report forwarded by him to the informant and the report forwarded by him to the Magistrate under Sub-section (2)(i) is to be supplied by him to the informant. I deem it proper to quote the relevant portion of the view expressed in the said judgment:
"The question immediately arises as to why action taken by the Officer-in-charge of a Police Station on the First Information Report is required to be communicated and the report forwarded to the Magistrate under Sub-section (2)(i) of Section 173 required to be supplied to the informant. Obviously, the reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know what is the result of the investigation initiated on the basis of the Fist Information Report. The informant having taken the initiative in lodging the Fist Information Report with a view to initiating investigation by the police for the purpose of ascertaining whether any offence has been committed and, if so, by whom, is vitally interested in the result of the investigation and hence the law requires that the action taken by the Officer-in-Charge of a Police Station on the First Information Report should be communicated to him and the report forwarded by such Officer to the Magistrate under Sub-section (2)(i) of Section 173 should also be supplied to him."
16. In J.K. International v. State Government of NCT of Delhi and Ors. the Apex Court placing reliance on the principle adopted in the case of Bhagwant Singh (supra) took the view that the informant who lodged the FIR is entitled to a notice from the Magistrate.
17. The learned counsel appearing for the State however tried to point out that such a notice is to be issued to the informant only in the case where the final report is submitted by the Investigating Officer to the effect that no offence had been made out in the case. But Section 173(2)(ii) in unequivocal terms says that it is mandatory on the part of the Officer-in-charge of the Police Station to communicate the informant as regards the action taken by him under Section 173(2)(i) of the Code. So placing reliance on the principles adopted in the above cited two decisions and the provision of Section 173(2)(ii), it is held that the provision is mandatory and the Officer-in-charge of a Police Station is in duty-bound to communicate the action taken by him to the person by whom the information relating to the commission of the offence was first given. Consequently it is also incumbent upon the Magistrate before taking cognizance to ascertain that such a communication was made by the Officer-in-Charge of the Police Station to the informant. If it is found that no such information was given to the informant he is required to issue a notice to the informant or to the complainant, as the case may be, and being satisfied that such information has been duly communicated shall proceed to take up the case for taking cognizance. In this context, I deem it proper to recollect the observations of the Apex Court towards the end of paragraph 4 in the case of Bhagwant Singh (supra) which is reproduced below:
"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 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)(1) 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."
18. Thus, it is clear that at the time of filing of the charge-sheet, the Investigating Officer must communicate the defacto-complainant about the action taken by him. If it is found that no information was communicated to the informant or the injured or the relatives of the injured the Magistrate is to play a vital role and before taking cognizance in a case it is incumbent upon him to see that the said mandatory provision is complied with. If it is found that no proof is produced by the Investigating Officer as regards the communication of the action taken, the Magistrate must take appropriate steps for service of a copy of the charge-sheet along with the police papers for the purpose of giving the defacto-complainant a chance to understand the fate of his complaint.
19. At such a juncture the defacto-complainant will get a chance to ascertain whether there was proper investigation on his complaint or steps are required to be taken for further investigation. In this way the defacto-complainant gets a chance to participate in the proceeding started on his complaint and can assist the prosecutor as well as the Court for a proper trial. If no such communication is made to the defacto-complainant the trial will be vitiated, and taking cognizance would be bad in law. Consequently the defacto-complainant would get a chance to proceed with his complaint afresh.
20. It is also to be noted that in the case of J.K. International (supra), the Apex Court duly considered the right of the complainant in a case investigated by the police and thereafter handled by a prosecutor appointed by the State in course of trial. After analysing the views taken in Thakur Ram Their Lordships in paragraph 12 took the view:
'The private person who is permitted to conduce prosecution in the Magistrate's Court can engage a counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the Court thinks that the cause of justice would be served better by granting such permission the Courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrates Courts, as the right of such private individual to participate in the conduct of prosecution in the Session Court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that art aggrieved private person is not altogether to be eclipsed from the scenario when the criminal Court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them."
So, if it is found that the prosecutor is not taking proper care of his case, Section 302 of the Code gives the complainant an opportunity to prosecute the case before the Magistrate by himself or by engaging a lawyer of his choice. In this way the Code also ensures proper justice to the defacto-complainant.
21. In this case, it is not shown that any action was taken by the Investigating Officer under Section 173(2)(iii) of the Code, nor the provision was taken into consideration by the Court below before taking cognizance of the case. The provision being mandatory, it was incumbent upon the Court before taking cognizance of the case on submission of the charge-sheet to ascertain the action taken by the Police Officer in respect, of the investigation of the case so that the dcfacto-complainant could take appropriate action in the manner indicated hereinabove by way of his personal appearance or through any lawyer of his choice.
22. So it is seen that in the present case, the defacto-complainant was not informed by the Investigating Officer about the action taken by him in terms of the provision of Section 173(2)(i) of the Code nor the defacto-complainant got any chance to proceed with the case properly. A notable inaction on the part of the prosecutor of this case is that appropriate steps were not taken for production of the documents, copies of which were seized from the defacto-complainants by the Investigating Officer, for the purpose of marking exhibits. Since, action under Section 173(2)(tt) of the Code was not taken, I treat it to be a violation of mandatory provision of law by the trial Court perpetrating injustice to the defacto-complainant. So in a ease of this nature, the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused following the principles laid down by the Apex Court in the case of Bansi Lal and Ors. v. Laxman Singh .
23. As regards not giving any opportunity to prove the original documents, copies of which were seized by the police, it is rightly pointed out that if those documents were produced before the trial Court, proper justice could have been done. It is true that the accused persons are entitled to get benefit of the lacuna in the prosecution case. But the fact situation in this case is to be taken into consideration for ascertaining that the lacuna was created due to inaction on the part of the prosecution as no attempt was made to get those documents proved by calling the original in course of trial. By such inaction on the part of the prosecutor, prejudice was caused to the defacto-complainant. Lacuna of the prosecution case created intentionally or through oversite by the prosecutor cannot be construed as a benefit accrued to the accused inasmuch as it was known to the accused that the materials were collected in course of investigation on the basis of a seizure list, copies of which were served on the defence. So for the proper adjudication in this case, those documents are required to be produced before the trial Court and if necessary by way of recalling the defacto-complainant and other witnesses. In this connection, reliance can be placed on another decision of the Apex Court in the case of Rajendra Prasad v. Narcotic Cell where in paragraph 8, following observations have been made:
"Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case. But an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."
24. From the said decision, it is sufficiently clear that the criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed.
25. After careful scrutiny of the facts and circumstances of this case, I feel that the documents, copies of which were seized by the Investigating Officer are also required to be produced before the trial Court and if necessary, be calling and re-examining the defacto-complainant or other witnesses.
26. It is also to be noted that no charge-sheet under Section 380 of the Code was framed in this case though there was an allegation of theft in respect of the article kept in the room. The trial Court shall be at liberty to take into consideration this aspect and if necessary, such a charge may also be framed if sufficient materials are there and thereafter to proceed in accordance with law.
27. So, after due consideration of the facts and circumstances of this case and the discussions made hereinabove, I find that an interfering with the decision of the trial Court is necessary in this case.
28. The application is allowed. The judgment and order passed by the trial Court is, accordingly, set aside and the case is sent back on remand to the Court below for a retrial in terms of the observations made hereinabove after giving an opportunity to the parties to act in accordance with the directions given in the body of the judgment.
29. Since the matter is long pending, the trial Court is directed to dispose of the case expeditiously, preferably within six months from the date of communication of this order.
30. Let a copy of this order be sent down to the Court below by a special messenger at the cost of the present petitioners and such cost, is to be deposited by tomorrow.
31. Urgent xeroxed certified copy of this order be given to the parties, if applied for.