Calcutta High Court (Appellete Side)
Tapan Kr. Roy vs The State Of West Bengal & Ors on 23 November, 2022
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present: - Hon'ble Mr. Justice Subhendu Samanta.
C.R.R. No. - 47 of 2017
IN THE MATTER OF
Tapan Kr. Roy
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Kamalesh Chandra Saha, Adv.,
Ms. Payel Mitra, Adv.,
For the State : Mr. Swapan Banerjee, Adv.,
Mr. Suman De, Adv.
For the Opposite Party : Mr. Uday Sankar Chatterjee, Adv.
Mr. Suman Sankar Chatterjee, Adv.,
Mr. Santanu Maji, Adv.,
Ms. Trisha Rakshit, Adv.
Judgment on : 23.11.2022
Subhendu Samanta, J.
This is an application U/s 401 of the Code of Criminal Procedure read
with section 482 of the Criminal Procedure Code against an order dated
06.12.2016 passed by Learned Judicial Magistrate, 3rd Court Serampore
Hooghly in connection with GR Case No. 1389 of 2015 arising out of
Serampore P.S Case No 367 dated 07.08.2015 U/s 341/323/506/34 of IPC.
In a nutshell, the fact of this the case is that the petitioner lodged a
written complaint with the I.C Serampore P.S on 07.08.2015 contending
inter alia commission of an alleged offence punishable U/s 341/325/506 of
IPC against the O.P. No. 2,3 and 4. Police conducted investigation and after
completion of investigation, submitted charge sheet against two accused
persons except O.P. No. 2. One protest petition (U/s-173(8)Cr.P.C.) was filed
by the present petitioner before the Magistrate. Learned Magistrate on
hearing the parties passed the impugned order and rejected the application
filed by the petitioner U/s 173(8) of Cr.P.C..
Being aggrieved by and dissatisfied with the impugned order the
instant criminal revisional application has been filed.
Learned Advocate for the petitioner submitted before this court that
opposite party No. 2 is the principle accused of the alleged offence and he is
FIR named accused. The ground to discharge him from the case by the I.O.
is mala fide one. The police did not conduct the investigation in a
perfunctory manner and submitted false charge sheet. The views of the Ld.
Magistrate in the impugned order suffers illegality and improperity. Learned
Court below should have ordered further investigation under the Provision
of Section 173(8) Cr.P.C.
Learned Advocate appearing on behalf of the opposite party submitted
that the Learned Court below has committed no error in passing the
impugned order. The impugned order is reasonable and a speaking order.
He further pointed out that no materials were collected by the I.O. against
the present O.P No. 2 thus, he was not sent up.
Learned Advocate appearing on behalf of the State submitted before
this court that the impugned order suffers no illegality or improperity.
Learned Advocate appearing on behalf of the petitioner cited some
decisions in support of his contentions there 1. Suman Bal Vs The State of
West Bengal reported in 2018(4)AICLR 406(CAL). In this cited case
Hon'ble Calcutta High Court has held that
29. In the context of the above discussion, I am of
the considered view that the learned Judge is called
upon to consider the charge against the accused
person based on the police report submitted under
Section 173 of the Code upon giving an opportunity
to the accused right of audience to address the Court
for their discharge as grant of such right to the
accused person petitioner would be in their interest
to have right to access to justice and fair trial as
enshrined as fundamental rights under Article 21 of
the Constitution of India.
Petitioner also cited another decision of this court reported in Indranil
Mukherjee vs. State of West Bengal and another 2018(4)AICLR395(CAL)
in this citation Hon'ble Court has enumerated that
Further investigation- Rejection of- Investigating
agency perfunctorily conducted investigation without
taking into account the medical evidence by not
sending the accused in the charge sheet despite
allegation levelled against him- Magistrate also
overlooked the police papers placed on Case Dairy
while taking cognizance against one charge sheeted
accused and committed error by rejecting the
application for further investigation- Charge sheet
submitted against one accused and another accused
was not sent up who allegedly assaulted the
complainant- Complainant approached Magistrate
only after having the information and notice with
regard to the submission of charge sheet- Magistrate
has ample power to direct further investigation after
submission of the charge sheet by police even when
cognizance has been taken on the charge sheet -
Submission of a report under Section 173(2) does not
preclude the power of the Magistrate to direct further
investigation by the investigating agency and
submission of supplementary charge sheet thereon-
Imperative for Magistrate to grant further
investigation because if the order impugned is
allowed to be sustained, it will amount to arming
police with unbridled power to exonerate any person
from the periphery of the investigation and it would
be playing into the hands of I. O. who submitted the
charge sheet against one accused exonerating
another by not sent up him in the charge sheet with
an ulterior design.
He also cited another decision reported in 2019(2)AICLR874(KARN)
M.Rubin Britto vs. Inspector of Police,Kuduthini Police Station, Ballari
and Others. In this citation it has held that-
27. it is clear that even the Magistrate and higher
Courts can exercise the powers under Section 173(8)
of Cr.P.C. for further investigation of the matter and
while ordering for further investigation also it must
be in order to collect the materials and to punish the
person who is culprit and if any investigation is
defective, it is the Magistrate or the higher Courts of
jurisdiction would direct further investigation
Learned Advocate for the petitioner cited another decision reported in
(1997)7SCC614. In this cited judgment Hon'ble Supreme Court has held
that-
Magistrate has the power to direct further
investigation after acceptance of final report and
closer of case. Short comings necessitating re-
investigation brought to the notice of the Magistrate
by the informant but he reads to direct investigation
holding that he had no power to review the earlier
order. It is held that the Magistrate failed to exercise
jurisdiction vested in him by law. He was not
required to review the order to two orders. Further
investigation into ...... which he was competent to do
U/s 173(8) of the Code.
Learned Advocate for the petitioner further argued that the Learned
Magistrate has failed to appreciate the differences between section 149 and
34 of the IPC.. Common intention and common object are there in
committing alleged offence by O.P. No. 2. Thus Learned Magistrate need to
re-visit the matter. In support of his contention he cited a decision reported
in 2021(1)AICLR363(SC). Hon'ble Apex Court in the above citation has held
that-
There are differences between section 149 and
section 34 of IPC. Difference between common
intention and common object are moods of
appreciating vicarious liability of individual members
of a group, they are existed differences in these two
provisions. Section 34 IPC requires active perception
and a prior meeting of minds, section 149IPC assigns
liability merely by membership unlawful assembly.
Such common intention is usually indirectly inferred
from conduct of individuals and only seldom it is
done through direct evidences.
I have gone through the citations the principal laid down in the
citations; They are well expected. Let me consider whether the principles are
applicable in the present facts and circumstances of the case.
It appears from the impugned judgment that Learned Magistrate has
passed the impugned order by virtue of the principles laid down in
2006(4)SCC 359(Minu Kumari & Anr. vs. State of Bihar and Ors.) and
also in 2013(5)SCC762(Vinay Tyagi vs.Irshad Alia Alias. Deepak and
Ors.) Learned Magistrate is of view that justice would not fail if he does not
direct the investigating agency to conduct further investigation.
It is a cardinal principle of every Criminal investigation that the de-
facto complainant should have to be heard. The free and fair trial of a
Criminal Case is only possible when there is free and fair investigation. It is
true, I.O. has the sole domain to conduct investigation, but it does not mean
that the de- facto complainant shall remain unheard. The circumstances,
when during the course of investigation, it appears to the I.O. that the FIR
required to be clarified or need some explanation, the I.O. must proceed to
hear the de- facto complainant. Recording subsequent statements of De-
facto in every Criminal investigation may destroy the prosecution case or
may lead to false implication. Investigating agency is duty bound not to
proceed beyond the scope of investigation of the particular criminal case.
Thus, I.O. may be directed to conduct further investigation in those special
cases if it appears that there are latches on the part of I.O. and when it is so
glaring which will make improbable the very notion of fair investigation
leading to failure of Justice.
C.D is placed before this court. Perused the C.D. carefully. It appears
from the FIR that the de facto complainant and his wife went to the house of
O.P. No. 2, to see their grand child by virtue of order of the Hon'ble High
Court but they are initially not allowed to meet their grand child and when
attempt was made by them; they were man- handled and subsequently
assaulted to which they sustained bleeding injuries. It has further alleged
that the O.P. No. 3 and 4 abused the wife of de facto complainant with filthy
languages.
The petition of complaint does not disclose the presence of O.P. No. 2
at the time of occurrence. The statement of neighbouring people were
recorded by the I.O. during the course of investigation of this case wherein it
also appear that the Op. No. 2 was not at the house at the time of alleged
commission of offence. So, considering the police report it appears that the
allegation against the O.P. 2 is not supported by any evidence. Thus, the
police report regarding the opinion of investigating officer, not finding prima
facie materials against the O.P. No. 2 is not at all baseless.
The entire circumstance of this case is goes to show that the alleged
occurrence happened at the house of O.P. No. 2 when the O.P. No. 2 was
not present at his house. The available witnesses also support the fact that
O.P. No. 2 was not present. FIR does not discloses any overtact by O.P. No.-
2. Merely naming any person in the FIR to be accused is not ipso facto
bound investigating agency to submit charge sheet against the said accused
person.
Considering the materials on record considering the principles laid
down by the Apex Court and Hon'ble High Court I am of a clear view that
the impugned order passed by the Learned Magistrate is a speaking order
and it founds on reasonable appreciation and law. The circumstances of this
case is not such a nature which warrant an order of further investigation.
Thus I find no merit to entertain the instant criminal revision.
In result thereof, the instant criminal revision is dismissed.
The connected CRAN applications if any are also disposed of.
Any order of stay passed by this Court during the pendency of the
instant criminal revision is also vacated.
Accordingly, the Criminal revision is disposed of.
(Subhendu Samanta, J.)
