Narayan Pradhan & Anr vs The State Of West Bengal
2022 Latest Caselaw 7885 Cal

                                         1


                IN THE HIGH COURT AT CALCUTTA
                  Criminal Appellate Jurisdiction
                          Appellate Side


Present: -        Hon'ble Mr. Justice Subhendu Samanta.
                            CRR 2105 of 2017
                          Narayan Pradhan & Anr.
                                    Vs.
                         The State of West Bengal


      For the petitioner             :       Mr. Nabankur Paul,
                                             Md. Apzal Ansari,

      For the State                  :       Mr. Madhusudan Sur,
                                             Mr. Imran Ali,
                                             Mr. Manaranjan Mahata,
                                             Mr. Pratick Bose.


      Judgment on                    :       29-11-2022

   Subhendu Samanta, J.

This is an application under Section 482 of the Code of Criminal

Procedure for quashing of the proceedings being N.G.R No.300 of 2011

arising out of Sadar Police Station G.D.E. No.583 dated 11.4.2011 under

Section 171F of the Indian Penal Code and Section 121 of the West Bengal

Municipality Act, 1993 pending before the Court of Learned Judicial

Magistrate at Darjeeling and also against all consequent orders passed by the

Learned Magistrate below on 16.9.2016 and affirmed by the Learned

Additional Sessions Judge dated 28.4.2017.

The brief fact of the case is that one written information dated April 9,

2011 was lodged with the Inspector-in-Charge Sadar Police Station,

Darjeeling by the then Returning Officer, 23-Darjeeling A/C & Sub-Divisional

Officer, Darjeeling Sadar contending inter alia that he had issued notice to

the candidate, GJMM, 23-Darjeeling A/C and President/Secretary, GJMM

Town Committee, Darjeeling on 6.4.2011 regarding the removal of

defacement at Mall Road(Chowrasta). But they did not remove the

defacement and the same has been removed by the MCC Squad on

8.4.2011. On the basis of such information, he requested the I.C. to take

necessary action as per law. On receipt of the said information the I.C. Sadar

Darjeeling registered the same as Sadar Police Station G.D.E. No.583 dated

11.4.2011 corresponding to NGR No. 300 of 2011 for commission of offence

punishable under Section 171F IPC and Section 121 West Bengal

Municipality Act, 1993 and endorsed the same to P.S.I Shri D. Sarkar to

enquire into the matter.

On completion of the investigation the concerned Investigating Officer

submitted a non-FIR prosecution report being No.308/11 dated 13.4.2011

under Section 171F of the Indian Penal code and Section 121 of the West

Bengal Municipality Act, 1993 against the present petitioners.

Learned Chief Judicial Magistrate, Darjeeling on perusal of the

prosecution report was pleased to take cognizance of the offence and issued

summons upon the petitioners. On receiving the summons the petitioners

appeared before the Court and prayed for bail which was granted.

Thereafter, several dates were fixed for appearance and supply of copies.

The present petitioners, thereafter, preferred an application under

Section 258 of the Code of Criminal Procedure for stoppage of the proceeding

and discharging the petitioners from this case.

Learned Magistrate on hearing the application pleased to reject the

application on 16.9.2016. The present petitioners challenged the said order

before the Learned Sessions Judge, Darjeeling. Learned Additional Sessions

Judge, 3rd Court, Darjeeling affirmed the order of the learned Magistrate and

refused to interfere with it. Hence this instant revisional application.

Learned advocate appearing on behalf of the petitioners submitted

before this Court that the investigation of the police on the basis of the

information of the then BDO is grossly illegal. The impugned order passed

by the learned court below and the proceeding pending before the learned

Magistrate is also not tenable in the eye of law. The alleged information has

no connection with the sections and offences stated in the final report of the

police. So the proceeding before the learned Magistrate cannot be allowed to

run. He prayed for quashing of the entire proceeding.

Learned advocate appearing on behalf of the State raised strong

objection and submitted before this Court that,after completion of

investigation, police has submitted charge-sheet. The information revealed

that the then BDO requested the present petitioners to remove the

defacement but they did not obeyed the same, consequently, MCC squad

removed the defacement. The voluntary disobedience of law by the

legislatures itself is very glaring in the instant case, so he prayed for rejection

of instant criminal revision.

Heard the learned advocates perused the report for prosecution also

perused the information of Returning Officer to the police dated April 9,

2011.

First of all, let me consider the impugned order passed by the Learned

Magistrate as well as Learned Sessions Judge in response to an application

under Section 258 of the Code of Criminal Procedure. Section 258 is quoted

below:

"258. In any summons-case instituted otherwise than upon

complaint, a Magistrate of the first class, or, with the previous sanction

of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for

reasons to be recorded by him, stop the proceedings at any stage

without pronouncing any judgment and where such stoppage of

proceedings is made after the evidence of the principal witnesses has

been recorded, pronounce a judgment of acquittal, and in any other

case, release the accused, and such release shall have the effect of

discharge."

Section 258 is the power of Magistrate to stop proceeding in certain

cases. The Section 258 is in respect of summons cases. Summons cases are

generally of two categories: (i) Those, instituted upon complaint and (ii) those,

instituted otherwise then upon complaint. The latter category would include

cases based on police reports. Section 258 is intended to cover those cases

belonging to one category that is summons cases instituted otherwise than

upon complaint.

The impugned order passed by the learned Magistrate has vividly

discussed about the prosecution report and Learned Magistrate of view that

the prosecution report that is the police report being in its nature a

complaint. Thus, the Magistrate has no power to stop the proceeding under

Section 258 of the Code of Criminal Procedure. Learned Sessions Judge is

also on the same view.

I have carefully perused the provisions of law regarding the definition

of complaint and other connected provisions wherefrom it appears that the

prosecution report is no doubt a complaint as defined in the code of Criminal

Procedure. So, I am considered view the impugned orders passed by the

learned Courts' below is justifiable.

Now, I am concentrating about the procedure adopted by the Learned

Magistrate in this case. In the order no.1 of the instant N.G.R. case, I.O.

prayed for permission to submit prosecution report under Section 171F of

the Indian Penal Code and Section 121 West Bengal Municipality Act, 1993.

His prayer was allowed by the Learned Magistrate.

No doubt, these cases come under the category of summons cases.

Let me considered what is the procedure laid down for investigation of

summons cases. Section 155 of the Code of Criminal Procedure enumerated

the provisions as follows:

"155. Information as to non-cognizable cases and investigation of

such cases.-(1) When information is given to an officer-in-charge of a

police station of the commission which the limits of such station of a non-

cognizable offence, he shall enter to cause to be entered the substance of

the information in a book to be kept by such officer in such form as the

State Government may prescribe in this behalf, and refer the informant

to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without

the order of a Magistrate having power to try such case or commit the

case for trial.

(3) Any police officer receiving such order may exercise the same

powers in respect of the investigation(except the power to arrest without

warrant) as an officer in charge of a police station may exercise in a

cognizable case.

(4) Where a case relates to two or more offences of which at least

one is cognizable, the case shall be deemed to be a cognizable case

notwithstanding that the other offences are non-cognizable."

The wordings of Section 155 is very clear. Where information was

given to the police to the commission of a non-cognizable offence; the police

cannot investigate the non-cognizable case and cannot submit a report with

reference to it without the order of the Magistrate. In this case no such

permission was sought for by the I.O. but I.O. has sought for permission to

submit the prosecution report. As if, after conduction of investigation I.O.

prayed before the learned Magistrate for submission of a report. This

conduct of the I.O. is not permissible in the eye of law. Section 155(2) of the

Code of Criminal Procedure is specific bar. The police shall only investigate

the non-cognizable cases and such investigation shall be started with the

order of the Magistrate having jurisdiction. It is abundantly clear in the

provisions of Section 155(2) of the Code of Criminal Procedure that the order

of a Magistrate is the condition precedent of initiation of a non-cognizable

cases by the police. I have also noticed that by virtue of Section 155(3) of the

Code of Criminal Procedure, the legislature has given ample power to

investigate the police officer in respect of non-cognizable cases after obtaining

permission from the jurisdictional Magistrate.

On perusing the report of prosecution in the instant case I noticed the

endorsement made there by the I. O. as follows:-

"as per endorsement I conduct enquiry with the MCC squad party and

found complaint genuine". This being the version of the prosecution report in

question it is crystal clear that before obtaining permission from the

Magistrate the I.O. has conducted investigation. This is palpably illegal in

the eye of law. The prior permission of Magistrate to conduct investigation in

non-cognizable offences are very much necessary. Such necessary is

witnessed in the instant case also. The Enquiry Officer of the instant case

due to his lack of knowledge has prayed for prosecution of the accused

persons/revisionist under Section 121 of the West Bengal Municipal Act,

1993 along with Section 171F of the Indian Penal code. Section 121 of the

West Bengal Municipal Act, 1993 is not a penal Section and further any such

activity, as alleged in the contravention of West Bengal Municipal Act, 1993

is not triable by the Court of law.

The ingredients of offence enumerated under Section 171F of the

Indian Penal Code is also very much missing in this case. Thus, it is the

clear view of this Court that the prosecution report as submitted by the I.O.

is not at all an application of mind of the I.O. and he has submitted the

report without knowledge of the law. The prosecution report itself is baseless

and illegal in nature.

It further appears that the procedure enumerated in the Code of

Criminal Procedure regarding the trial of summons cases by the Magistrate

specifically in Section 251 was also not at all followed. Hon'ble Supreme

Court in different judgments has categorically emphasised the value of

Section 251 and its applicability thereof. Failing to comply with such

provisions under Section 251 of the Code of Criminal Procedure the

proceeding initiated by the Learned Magistrate is appears to me to justified.

Considering the entire aspect and considering the materials on record,

I am of a view that the prosecution report submitted by the I.O. is illegal in

the eye of law. The proceeding to initiate the investigation of non-cognizable

cases is also not tenable in the eye of law and the proceeding pending before

the learned Court below is also not running according to law.

Thus, under the above observation, I find if the proceeding is allowed

to be continued there shall be a miscarriage of justice. This is a fit case

where this Court can invoke its inherent power enumerated under Section

482 of the Code of Criminal Procedure.

In result thereof, the instant criminal revision being CRR 2105 of 2017

is allowed.

The proceeding pending before the Learned Judicial Magistrate,

Darjeeling being N.G.R No.300 of 2011 arising out of Sadar Police Station

G.D.E. No.583 dated 11.4.2011 under Section 171F of the Indian Penal Code

and Section 121 of the West Bengal Municipality Act, 1993 is hereby

quashed.

Connected pending applications, if any, are disposed of.

Any order of stay passed by this Court during the pendency of the

instant revisional application is hereby also vacated.

Let of this order be sent down to the Learned Court for his information

and necessary action.

Urgent Photostat certified copy of this order, if applied for, be given to

the parties, upon compliance of necessary formalities.

(Subhendu Samanta, J.)