Calcutta High Court (Appellete Side)

Sk. Hamid vs The State Of West Bengal & Anr on 21 June, 2021

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Revisional Jurisdiction
                              Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                         CRR 197 of 2018

                           Sk. Hamid
                            -Versus-
                The State of West Bengal & Anr.

For the Petitioner                  : Mr. Debasish Roy, Adv.,
                                      Mr. Avik Ghatak, Adv.,
                                      Mr. Subhankar Das, Adv.

For the State                       : Mr. Rana Mukherjee, A.P.P.,
                                      Mrs. Debjani Sahu, Adv.

Heard & Judgment On                 : 21st June, 2021.

The instant criminal revision under Section 482 of the Code of

Criminal Procedure (hereafter described as the Code, for short) is filed

by one Sk. Hamid (hereafter described as the petitioner) challenging

an order dated 29th November, 2017 passed by the Learned Additional

Chief Judicial Magistrate, Bishnupur in Sessions Case No. 2 (08) of

2017 arising out of G.R. Case No. 67 of 2016 (IndAs Police Station

Case No. 8 of 2016 dated 24th January, 2016).

At the outset, it is recorded that the matter was previously fixed

on 18th June, 2021. On that date the opposite party no. 2 was not

represented. The matter was adjourned and today is fixed for hearing

of the matter in presence of both sides only to facilitate the opposite

party no. 2 to appear before this Court. However, the opposite party

no. 2 remains absent. Accordingly, the instant criminal revision is

heard in presence of the learned Advocate for the petitioner and the

learned Advocate for the opposite party no. 1, State of West Bengal.

Before dealing with the contention raised by the Learned

Counsels for the petitioner and the opposite party no. 1, the following

facts are required to be stated:-

One Mousumi Begum, opposite party no. 2 herein filed a written

complaint before the jurisdictional Police Station on 24 th January,

2016 stating, inter alia, that F.I.R. named accused persons, of which

the petitioner is the one, assaulted her husband with the help of rod,

shabal, lathi etc. caused grievous injury and also took away a sum of

Rs. 50,000/- and a gold chain from his possession. The husband of

the de facto complainant succumbed to his injury. On the basis of the

said complaint police registered Indas Police Station Case No. 8 of

2016 under various penal provisions along with 302 of the Indian

Penal Code against the F.I.R. named accused persons. Investigation

was taken up and on completion of investigation charge-sheet was

filed on 24th April, 2016. In the said charge-sheet, the petitioner and

one Sk. Shamim was not charge-sheeted and the Investigating Officer

prayed for discharging them from the case. The course of

investigation and final report in the form of charge-sheet was duly

communicated to the de facto complainant, opposite party no. 2

herein. Subsequently, on 9th May, 2016 the de facto complainant

made an application under Section 173(8) of the Code of Criminal

Procedure along with affidavit filed by two persons claiming to be the

eye witnesses of the occurrence with a prayer to implicate the

petitioner and Sk. Shamim on further investigation. The said

application was, however, dismissed by the Learned Additional Chief

Judicial Magistrate, Bishnupur vide order dated 27 th July, 2016 on

being not pressed by the de facto complainant. Subsequently, the de

facto complainant filed an application under Article 226 of the

Constitution on the allegation that the petitioner and the Sk. Shamim

were threatening him to withdraw the case. The matter was duly

informed to the police authority but police failed to give proper

protection to her so that his life and personal liberty may be

protected. The said writ petition was disposed of by a Coordinate

Bench of this Court on 24th November, 2016 directing the police

authority attached to Indas Police Station to provide police protection

to the opposite party no. 2. The opposite party no. 2 also moved

before the State Human Rights Commission and the Chairman, State

Human Rights Commission passed some order directing the police

authority in connection with the case. It is important to note that

prior to moving the Human Rights Commission the opposite party no.

2 again moved an application before the Learned Additional Chief

Judicial Magistrate under Section 173(8) of the Code for

reinvestigation of the case. The Learned Additional Chief Judicial

Magistrate rejected the said application on the ground that the de

facto complainant has no further scope to pray for reinvestigation of

the case. It is only the Investigating Officer who can pray before the

Court to seek leave for reinvestigation, especially when on the basis

of the charge-sheet the Court has taken cognizance.

The case thereafter was committed to the Court of Sessions for

trial. It was then transferred to the Court of the Learned Additional

Sessions Judge, Bishnupur for trial. Before the Trial Court, the

Learned Public Prosecutor filed an application under Section 319 of

the Code. The said application has not yet been disposed of.

Peculiarly enough after the case was committed to the Court of

Sessions, the Officer-in-Charge, Indas Police Station filed an

application under Section 173(8) of the Code before the Learned

Additional Chief Judicial Magistrate for reinvestigation and the said

application was allowed vide order dated 29th November, 2017.

The said order was impugned in the instant revision. It is

submitted by Mr. Roy, Learned Counsel for the petitioner that after

the case is committed to the Court of Sessions the Learned Additional

Chief Judicial Magistrate cannot pass any order in the said record

because he was not in seisin over the matter.

Mr. Rana Mukherjee, Learned Public Prosecutor-in-Charge has

not opposed the factual averment made by the petitioner in the

instant case. He also concedes to the submission made by Mr. Roy

that the Learned Additional Chief Judicial Magistrate had no authority

to pass the impugned order after the case being committed to the

Court of Sessions.

Having taken consideration of the facts and circumstances of

the case as well as the submission made by the Learned Advocates

for the petitioner and the opposite party no. 1, I like to state that

power of a police officer under Section 173(8) of the Code is

unrestricted. Moreover, a Magistrate before whom a report under

Section 173(2) is filed, is empowered in law to direct further

investigation and require the police to submit a further or a

supplementary report. The provisions of Section 173(8) runs thus:-

"Nothing in this Section shall be deemed to preclude further

investigation in respect of an offence after a report under Sub-Section

(2) has been forwarded to the Magistrate and, where upon such

investigation, the officer in charge of the police station obtains further

evidence, oral or documentary, he shall forward to the Magistrate a

further report or reports regarding such evidence in the form

prescribed; and the provisions of sub-sections (2) to (6) shall, as far

as may be, apply in relation to such report or reports as they apply in

relation to a report forwarded under sub-Section (2)".

However, the unfettered power of the Magistrate remains in

force till the report under Section 173(2) of the Code lies in the

jurisdiction of the Learned Magistrate. When a sessions case is

committed to the Court of Sessions, after such commitment he cannot

pass any order under Section 173(8) of the Code of Criminal

Procedure. At the same time, this Court is of the view that any

observation of the State Human Rights Commission is not binding

upon the Court and no order of further investigation can be passed on

the basis of some opinion passed by the State Human Rights

Commission.

However, this Court is not unmindful to take note of the

provision of Section 319 of the Code which runs thus:-

"319. Power to proceed against other persons appearing

to be guilty of offence. - (1) Where, in the course of any inquiry

into, or trial of, an offence, it appears from the evidence that any

person not being the accused has committed any offence for which

such person could be tried together with the accused, the Court may

proceed against such person for the offence which he appears to have

committed.

(2) Where such person is not attending the Court, he may be

arrested or summoned, as the circumstances of the case may require,

for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest

or upon a summons, may be detained by such Court for the purpose

of the inquiry into, or trial of, the offence which he appears to have

committed.

(4) Where the Court proceeds against any person under sub-

section (1) then -

(a) the proceedings in respect of such person shall be

commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may

proceed as if such person had been an accused person

when the Court took cognizance of the offence upon

which the inquiry or trial was commenced."

Purpose of enacting Section 319 in the Statute Book is that the

real culprit should not get away unpunished. This is part of concept of

fair trial. Section 319 can always be applied to advance the object

and cause of justice. If in course of trial it appears that real culprit

has been left out, the Trial Court can take recourse of Section 319 of

the Code.

It is learnt from the submission made by Mr. Rana Mukherjee,

Learned Public Prosecutor-in-Charge that the application under

Section 319 of the Code filed by the Public Prosecutor is still pending

in the Trial Court.

In view of the above discussion, the impugned order dated 29 th

November, 2017 is liable to be set aside. Accordingly, the instant