Subhadip Pal vs State Of W.B. & Ors
2021 Latest Caselaw 854 Cal

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side

Present:

The Hon'ble Justice Jay Sengupta

CRR 2955 of 2018

Subhadip Pal Vs.

State of W.B. & ors.

For the Petitioner : Mr. Ayan Bhattacharya : Mr. Sharequl Haque : Mr. Aditya Ratan Tiwary : Mr. Amitabrata Hait

For the State : Mr. Saibal Bapuli, Ld.APP : Mr. Arani Bhattacharya

For the O.P. : Mr. Md. Shahjahan Hossain : Mr. Supriyo Das

Heard on: 3rd February, 2021

Judgment on : 3rd February, 2021

The Court:

This is an application challenging the judgment and order

dated 30.08.2018 passed by the learned Additional Sessions

Judge, Bench 2, City Sessions Court, Bichar Bhavan, Calcutta

in Criminal Revision No. 195 of 2017, thereby affirming the

order dated 15th June, 2017 passed by the Metropolitan

Magistrate, 5th Court at Calcutta in G.R. No. 2219 of 2015,

dismissing an application under Section 173 (8) of the Code.

Affidavit of service filed on behalf of the petitioner is taken

on record.

Let a copy of the application be served upon Mr. Saibal

Bapuli, learned Additional Public Prosecutor and Mr. Arani

Bhattacharyya, learned advocates, who are present in court

today. Their engagement may be regularised in due course by

the competent authority of the State.

Learned counsel appearing on behalf of the petitioner

submits as follows. The petitioner is the defacto-complainant of

the case. Since he was aggrieved with the charge-sheet

submitted in this case, he preferred an application under

Section 173 (8) of the Code claim for further investigation

before the learned trial Court. The learned Magistrate kept the

application pending. Aggrieved by this, the petitioner

challenged the same before the learned Sessions Court. By the

impugned order, the learned revisional Court dismissed the

application, inter alia, on the ground that in view of the

decisions of the Hon'ble Apex Court passed in Athul Rao -vs-

State of Karnataka, Reeta Nag -vs- State of W.B. & ors. and

Amrutbhai Shambhubhai Patel -vs- Sumanbhai Kanytibhai

Patel & ors., further investigation cannot be directed after

cognizance of the offence is taken. Reliance is placed on a

decision of the Hon'ble Apex Court in case of Vinubhai

Haribhai Malaviya -vs- State of Gujarat reported in 2019 (14)

SCALE I and it is submitted that the relevant ratios laid down

in the earlier decisions of the Hon'ble Apex Court in Athul Rao

-vs- State of Karnataka, (2018) 14 SCC 298, Reeta Nag -vs-

State of West Bengal reported in (2009) 9 SCC 129 and

Amrutbhai Shambhubhai Patel -vs- Sumanbhai Kantibhai

Patel reported in 2017 SCC online SC 86, were overruled in the

case of Vinubhai Haribhai Malaviya (supra). In view of the

same, there is no bar on the learned Magistrate to direct

further investigation even after taking cognizance. In this

regard, reliance is also placed on a decision of this Court in

Shuvra Dutta -vs- State of West Bengal & another reported in

2019 SCC Online Cal 7294.

Learned counsel appearing on behalf of the opposite

party/defacto complainant submits as follows. The position of

law is well-settled in view of the decision of the Hon'ble Apex

Court in the case of Vinubhai Haribhai Malaviya (supra). It will

be open to the learned Magistrate to consider the question of

directing further investigation into the offences till charges are

framed. However, the learned Magistrate may be directed to

conclude such proceeding in a time bound.

Learned counsel appearing on behalf of the State submits

that in view of the settled position of law, the learned

Magistrate may be directed to conclude the hearing of the

application under Section 173 of the Code at the earliest.

I have heard the submissions of the learned counsels

appearing on behalf of the parties and have perused the

revision petition.

In view of the decision of the Hon'ble Apex Court in

Vinubhai Haribhai Malaviya (supra), it is abundantly clear that

in an appropriate case, a Magistrate can direct further

investigation even after taking of cognizance, in terms of under

Section 173(8) of the Code.

Accordingly, the impugned order is set aside and the

matter is remanded back for final consideration of the

petitioner's application under Section 173 (8) of the Code as

expeditiously as possible, preferably within a period of three

months from the next date of hearing.

With these observations, the revisional application is

disposed of.

Urgent photostat certified copies of this order may be

delivered to the learned Advocates for the parties, if applied for,

upon compliance of all formalities.

(Jay Sengupta,J.) ssi