Bahar Shaikh @ Bahar Sk vs State Of West Bengal & Ors
2022 Latest Caselaw 3077 Cal

07.06.2022 IN THE HIGH COURT AT CALCUTTA Item No.52 CRIMINAL REVISIONAL JURISDICTION Ct.No.34 dc.

C.R.R. 1787 of 2021

Bahar Shaikh @ Bahar Sk.

versus State of West Bengal & Ors.

In Re: An Application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973.

Mr. Shibaji Kumar Das, Mr. Amanul Islam, Mr. Sourav Mukherjee, Ms. Rupsa Manna ... For the Petitioner.

Mr. Arijit Ganguly, Mr. Sanjib Kumar Dan ... For the State.

Mr. Asraf Mandal ... For the private Opposite Parties.

Supplementary affidavit filed on behalf of the petitioner

be kept on record.

Report submitted by Mr. Arijit Ganguly, learned

advocate appearing for the State be kept on record.

Report reflects that neither U.D. case was registered

relating to the death of the deceased nor any other case was

registered as it seems from the report submitted by the

Officer-in-Charge, Thanarpara Police Station.

I have perused the order dated 04.08.2021 passed by

learned Additional Chief Judicial Magistrate, Tehatta.

Learned Court has emphasised on the judgment of Priyanka

Srivastava Vs. State of Uttar Pradesh reported in (2015) 6

SCC 287. In the same breath at the concluding paragraph,

the learned Magistrate has observed that "the allegation is

very serious in nature and before passing order directing to

lodge FIR against the accused persons for such serious

offence, it is very much necessary to peruse the post mortem

report for deciding whether the death was suicidal or

homicidal in nature". However, the learned court thereafter

rejected the application under Section 156(3) of the Code of

Criminal Procedure.

I find that the learned Magistrate failed to balance the

technicalities and the seriousness of the offence and was not

sure whether the application under Section 156(3) of the

Code of Criminal Procedure made out an offence for

investigation or not. In such cases where a complainant is

unable to produce any document, it is the duty of the court

for ends of justice to call for a report from the police

authorities for assessment of the ground reality whether any

offence has been made out or not and then decide whether for

furthering the case a direction for investigation should be

passed or not. A litigant or an affected party may not have the

resources to produce all the documents or witnesses at the

relevant time when a case is presented before the learned

Magistrate. The courts therefore are required to assess the

ground reality which includes the limited resources of the

complainant, the ability to get supporting witnesses without

the aid of the police authorities, the documents which are in

the custody of the public offices and the circumstances or the

motive which can only be found out by way of an effective

investigation.

In view of the aforesaid, the petitioner is granted liberty

to file a fresh application wherein the contents would be same

as was earlier filed before the learned ACJM, but the affidavit

must be exhaustive declaring the source of knowledge under

three heads - (i) belief, (ii) records and (iii) submissions.

Accordingly, the order dated 04.08.2021 passed by

learned Additional Chief Judicial Magistrate, Tehatta is set

aside.

The revisional application being CRR 1787 of 2021 is

allowed.

All pending connected applications, if any, are

consequently disposed of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

Urgent photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

(Tirthankar Ghosh, J.)