Calcutta High Court (Appellete Side)
Ranjit Singh Kothari vs The State Of West Bengal & Anr on 6 July, 2022
06.07.2022
CRR 2306 of 2022
Ranjit Singh Kothari
-Versus-
The State of West Bengal & Anr.
For the petitioner: Mr. Ayan Bhattacharya, Adv.,
Mr. Indrajit Adhikari, Adv.,
Mr. Amitabrata Hait, Adv.,
Ms. Ritu Das, Adv.,
Mr. Suman Majumdar, Adv.
The question as to whether on the basis of an order
passed by the learned Chief Metropolitan Magistrate,
Calcutta in GR Case No.1588 of 2011 on 28th May, 2013
for reinvestigation into the offence, police can file fresh
charge-sheet against the accused/petitioner and the
learned Magistrate can take cognizance of offence against
the petitioner afresh on the basis of the said charge-sheet,
especially when final report was filed previously after
investigation by the police is germane in the instant
revision.
Mr. Ayan Bhattacharya, learned Advocate for the
petitioner refers to paragraph 41 of the Vinay Tyagi vs.
Irshad Ali reported in (2013) 5 SCC 762. In Paragraph 41
of the said report the Hon'ble Supreme Court was pleased
to examine the kinds of reports that are contemplated
under the provisions of Code of Criminal Procedure
and/or as per the judgments of this Court. It was held by
the Supreme Court that the first and foremost document
that reaches the jurisdiction of the Magistrate is the First
Information Report. Then, upon completion of the
investigation, the police is required to file a report in terms
of Section 173(2) of the Code. It will be appropriate to term
this report as a primary report, as it is the very foundation
of the case of the prosecution before the court. It is the
record of the case and the documents annexed thereto,
which are considered by the court and then the court of
the Magistrate is expected to exercise any of the three
options aforenoticed. Out of the stated options with the
court, the jurisdiction it would exercise has to be in strict
consonance with the settled principles of law. The power
of the Magistrate to direct "further investigation" is a
significant power which has to be exercised sparingly, in
exceptional cases and to achieve the ends of justice. To
provide fair, proper and unquestionable investigation is
the obligation of the investigating agency and the court in
its supervisory capacity is required to ensure the same.
Further investigation conducted under the orders of the
court, including that of the Magistrate or by the Police of
its own accord and, for valid reasons, would lead to the
filing of a supplementary report. Such supplementary
report shall be dealt with as a part of the primary report.
This is clear from the fact that the provisions of Sections
173(3) to 173(6) would be applicable to such reports in
terms of Section 173(8) of the Code.
Mr. Bhattacharya next draws my attention to a
recently report decision of the Hon'ble Supreme Court in
Luckose Zachariah @ Zak Nedumchira Luke & Others
vs. Joseph Joseph & Others reported in 2022 (4) SCALE
193 in paragraph 16 of the said judgment it is held by the
Hon'ble Supreme Court:-
" In view of the clear position of law which has been
enunciated in the judgments of this Court, both in
Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya
(supra), it is necessary for the Magistrate, to have
due regard to both the reports, the initial report which
was submitted under Section 173(2) as well as the
supplementary report which was submitted after
further investigation in terms of Section 173(8). It is
thereafter that the Magistrate would have to take a
considered view in accordance with law as to
whether there is ground for presuming that the
persons named as accused have committed an
offence. While the High Court has relied upon the
decision in Vinay Tyagi (supra), it becomes necessary
for this Court to set the matter beyond any
controversy having due regard to the fact that the
Sessions Judge in the present case had while
remitting the proceedings back to the Magistrate
relied on the judgment of the Single Judge of the
Kerala High Court in Joseph (supra) which is contrary
to the position set out in Vinay Tyagi. Hence, the
JFCM - I Alappuzha shall reexamine both the reports
in terms of the decisions of this Court in Vinay Tyagi
vs Irshad Ali alias Deepak and Vinubhai Haribhai
Malaviya vs State of Gujarat as noted above and in
terms of the observations contained in the present
judgment. The Magistrate shall take a considered
decision expeditiously within a period of one month
from the date of the present order."
It is the allegation of the petitioner that in the
instant case, the learned Magistrate committed a gross
illegality by taking cognizance on the fresh charge-sheet
filed by the Investigating Officer against the petitioner. The
learned Magistrate was under obligation to consider both
the preliminary as well as the supplementary charge-sheet
and take his decision.
The instant revision is accordingly admitted.
The petitioner is directed to serve notice upon the
opposite party No.2 under registered speed post with AD
and file affidavit of service within three weeks from the
date of order. The state of West Bengal be served through
the learned Public Prosecutor. There shall be interim order
of stay of all further proceedings in GR Case No.1588 of
2011 corresponding to Shakespeare Sarani Police Station
Case No.138 dated 18th May, 2011 for a period of six
weeks.
Matter to appear in the monthly list of August, 2022
under the heading listed motion.
(Bibek Chaudhuri, J.)
