Calcutta High Court (Appellete Side)
Syed Nafisha Nigar Alias Dola vs The State Of West Bengal & Ors on 11 January, 2017
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.R.R. 347 of 2015
Syed Nafisha Nigar alias Dola
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Akmam Khan
For the State : Mrs. Debjani Sahu
For the opposite party nos.2 to 4 : Ms. Awisharjya Gupta
Heard on : 10-01-2017 & 11-01-2017
Judgment on : 11-01-2017
Indrajit Chatterjee, J.:- This is an application under Sections 401 and 482 of
the Code of Criminal Procedure, 1973 wherein this petitioner/de facto
complainant/wife has assailed the order dated 28.11.2014 passed by the learned
Additional Chief Judicial Magistrate, Basirhat in G. R. Case No. 1811 of 2010 by
which the prayer for further investigation of the de facto complainant/petitioner
dated 10/05/2011 as filed under Section 173(8) of the Code of Criminal
Procedure was rejected.
The matter is taken up for hearing.
State is represented by Mrs. Debjani Sahu. She has produced the case
docket.
Mr. Khan, learned Advocate, appearing on behalf of the petitioner took me
to the running page no. 26, i.e. the prayer as made by the de facto complainant,
who filed one petition for further investigation under Section 173(8) of the Code
of the Criminal Procedure. He also took me to the order impugned dated
28/11/2014. He submitted that it is true that as per the decision of the Apex Court reported in (2009)2 C. Cr. LR (SC) 820 (Rita Nag Vs. State of West Bengal), the de facto complainant has no locus standi to file petition under Section 173(8) of the Code of Criminal Procedure but he cited other decisions of the Apex Court as reported in (2007) 8 SCC 770 ( Dinesh Dalmia Vs. C. B. I.), AIR 2012 SC 243 (Jakia Nasim Ahesan & Anr. Vs. State of Gujarat) and 2013 Cri. L.J. 336 (Vipul Sital Prasad Agarwal Vs. State of Gujarat) where the Apex Court held that the de facto complainant has every right to file an application for further investigation under Section 173(8) of the Code of Criminal Procedure.
Mr. Khan further submitted that actually the Investigating Officer prayed for issuance of search warrant for recovery of the Stridhan articles as the de facto complainant did not co-operate with him before submission of charge sheet as regards the recovery of Stridhan articles.
Mrs. Sahu, learned Advocate, appearing on behalf of the State submits that the learned trial court ought to have allowed the prayer of the Investigating Officer for issuance of search warrant for recovery of Stridhan articles as because the case was initiated under Section 406 of the Indian Penal Code and the charge sheet was also submitted in respect of the section. But she claimed that in view of the decision of the Apex Court as passed in Rita Nag (Supra), the de facto complainant cannot file an application under Section 173(8) of the Code of Criminal Procedure and as such, the learned trial court was right in not entertaining the said application.
On behalf of the opposite party/husband, it is submitted by Ms. Gupta, learned Advocate, that the gold ornaments as per Muslim Law is with the mother of this de facto complainant and some furniture, bedding etc. may be in custody of her husband, i.e. the opposite party no. 2. She further submits that this opposite party no. 2 is ready to return back such articles.
This Court is not unmindful of the fact that Mr. Rahaman has conceded that the decision of the Apex court as passed in Reeta Nag (supra) is an authority on the point whether the de facto complainant/the complainant can make an application under Section 173 (8) of the Cr.P.C. On this point this Court can rely upon the decision of the Apex Court as passed in Bhagwant Singh vs. the Commissioner of Police as reported in 1985 SCC (Cri) 267, a three judge bench decision wherein right of the complainant to get a notice from the court as regards submission of report to the Magistrate under Section 173 has been enunciated. It is now a settled law that a complainant can file one 'Naraji Petition' before the Magistrate having jurisdiction, if he is not satisfied with the report of the Investigating Officer and the Magistrate has every authority to make an order for further investigation. There is a decision of the Apex Court as passed in Vinay Tyagi vs. Irshad Ali as reported in 2013 (5) SCC 726 wherein Apex Court held that the decision of Bhagwant Singh (supra) cannot be termed as obiter and the said bench further observe that to some extent the view expressed in Reeta Nag (supra) and Ram Naresh Pradhan vs. the State of Jharkhand as reported in (2009) 11 SCC 299 would have been examined in the light of the principle of stare decisis.
Thus, this court is of the opinion that the de facto complainant can very much maintain one application for further investigation under Section 173 (8) of the Cr.P.C. The observation to the contrary passed by the learned trial court relying upon the decision of the Reeta Nag (supra) cannot confirm by this court and the said finding is fit to be set aside.
Thus, this point No.1 is answer in favour of the de facto complainant/petitioner.
Now, the question is whether the learned trial court ought to have allowed the prayer of the Investigating Officer for issuance of search warrant for recovery of the Stridhan articles. This court is satisfied that under Section 173(8) of the Code of Criminal Procedure, the Magistrate having jurisdiction has such authority to allow the prayer of the Investigating Officer to pray for search warrant for recovery of the Stridhan articles in cases under Section 406 of the Indian Penal Code.
It is difficult to swallow at this stage that the gold ornaments of the wife/de facto complainant is with her mother. The matter is to be considered by the learned trial court. However, while issuing the search warrant, the learned trial court will not keep it in mind that the gold ornaments are not with the husband. This presumption cannot go in favour of the husband. Such search by the Investigating Officer must be conducted in presence of the de facto complainant the accused/husband. The said accused must co-operate with the Investigating Officer regarding the execution of the search warrant. In paragraph 2 of the complaint giving rise to Baduria Police Station Case No. 228 dated 21-8-2010, a list of articles has been mentioned which will the guidelines for the Investigating Officer to proceed with execution of the search warrant.
Thus, this criminal revisional application is answered in part in favour of the petitioner and the same is disposed of accordingly.
The order of the learned trial court wherein the prayer of the Investigating Officer for issuance of search warrant was rejected is set aside.
Learned trial court is directed to act accordingly in view of the decision of this court.
Office is directed to forward a copy of this order to the learned trial court at once.
Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.
(Indrajit Chatterjee, J.)