Indian Kanoon - Search engine for Indian Law

(c ) I am informed that during stay of operation of the order dated May 18, 2010 passed by learned Chief Metropolitan Magistrate by the court of sessions, the petitioner Sushil Kumar Sureka surrendered and the opposite party Sanjay Bagaria was arrested by the police. I am also informed that immediately after disposal of the revisional application by learned Additional Sessions Judge, the petitioner Pradip Kumar More surrendered before the court of learned Magistrate. All the petitioner-accused persons are now on bail granted by the court. During pendency of proclamation against the petitioner-accused persons the Investigating Officer carried out further investigation in connection with the main criminal case and submitted supplementary charge sheet disclosing offences not only under Sections 304/308/427/109 of the Indian Penal Code and Sections 11C/11J and 11L of West Bengal Fire Services Act but also under Section 174A of the Indian Penal Code against the petitioner-accused persons. The issue of submitting supplementary charge sheet disclosing offence under Section 174A of the Indian Penal Code was contested before the court of learned Magistrate. On November 9, 2011 learned Magistrate passed an order refusing to take cognizance of the offence punishable under Section 174A of the Indian Penal Code against the petitioner-accused persons. The said order passed by learned Metropolitan Magistrate, 12th Court, Calcutta, in G.R. No.1072 of 2010 is challenged by the State of West Bengal by preferring revision being CRR 4013 of 2011.

3. Mr. Ayan Bhattacharya, learned counsel appearing on behalf of the petitioner- accused persons contends that proclamation was not published by following the procedure laid down in Sectrion 82 of the Code of Criminal Procedure. He further submits that clear 30 days time was not granted for appearance of the accused persons for appearance and the date and time was not published in the proclamation. He argues that the petitioner-accused persons pursued legal remedy before the higher court challenging the order of issuance of proclamation by learned Magistrate and as such, those accused persons are not liable to be prosecuted on the allegation of committing offence under Section 174A of the Indian Penal Code. Mr. Bhattacharya has defended the order passed by learned Magistrate on November 9, 2011 by submitting that the order of proclamation and publication of the same in the newspaper is nullity and learned Magistrate cannot take cognizance of the offence under Section 174A of the Indian Penal Code due to specific bar under Section 195 of the Code of Criminal Procedure. According to Mr. Bhattacharya, the supplementary charge sheet disclosing offence under section 174A of the Indian Penal Code cannot be clubbed with the other offences, as the offence punishable under Section 174A of the Indian Penal Code took place long after the incident for which the original criminal proceeding was initiated against the petitioner-accused persons.

4. Mr. Sanjoy Banerjee, learned counsel appearing for the opposite party State submits that the petitioner-accused persons are liable to be prosecuted for the offence punishable under Section 174A of the Indian Penal Code, as they failed to appear after publication of proclamation in the newspaper, but the Investigating Officer wrongly amalgamated the offence punishable under Section 174A of the Indian Penal Code along with other penal laws by filing supplementary charge sheet after carrying out further investigation. According to Mr. Banerjee, the supplementary charge sheet may be taken into consideration for other offences punishable under law, except the offence punishable under Section 174A of the Indian Penal Code. He further submits that a separate application was filed before the court of learned Magistrate praying for proceeding against the petitioner-accused persons for the offence punishable under Section 174A of the Indian Penal Code and the said application is still pending for adjudication before the court of learned Magistrate. The specific submission of Mr. Banerjee is that learned Magistrate may be directed to take up the said application for hearing as early as possible.

6. With regard to further investigation carried out by the Investigating Officer and filing of the supplementary charge sheet under Section 173(8) of the Code of Criminal Procedure, I am of the view that the Investigating Officer has authority under the law to carry out further investigation and to file supplementary charge sheet under Section 173(8) of the Code of Criminal Procedure. However, the offence alleged to have been committed by the petitioner-accused persons for which FIR was registered and further investigation was carried out, cannot be mixed up and clubbed with the offence alleged to have been committed by them under Section 174A of the Indian Penal Code. I have already observed that the order of issuance of proclamation and publication of the same in the newspaper against the petitioner-accused persons was not justified under the law and as such they are not liable to be prosecuted for the offence punishable under Section 174A of the Indian Penal Code. Accordingly, the order passed by learned Metropolitan Magistrate, 12th Court, Calcutta in refusing to take cognizance on supplementary charge sheet needs to be modified by this court.