Khan And Another vs The State Of West Bengal And Anr
2023 Latest Caselaw 3245 Cal

Form J(1)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Revisional Jurisdiction
                               Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri



                            CRR 873 of 2023

                      Mahammad Mahafujur Rahaman Khan
                       @ Md. Mahafujur Rahaman @ Md
                      Mahafujur Rahaman Khan @ Md. Mahafujur
                             Khan and Another
                                 Vs.
                        The State of West Bengal and Anr.



Mr. Aniruddha Bhattacharyya
Mr. Indranuj Dutta
Mr. Asmanur Quail
Mr. Rahul Ghosahal
Mr. Bikram Basak
           .for the petitioners

Item No. 29

Heard & Judgment on:           08.05.2023

Bibek Chaudhuri, J.

Only allegation in the instant revision raised by the petitioner is

that the Court below did not consider the specific directions of

Priyanka Srivastava's case passed by the Hon'ble Supreme Court to

the effect that before entertaining an application under Section 153(3)

of the Code of Criminal Procedure the petitioner has to prove that she

has complied with Section 154(1) and Section 154(3) by first filing a

complaint in the local P.S. and in case the local P.S. does not take any

action over her complaint she sent the complaint to the higher

authority of the police department.

It is further stated in Priyanka Srivastava that in an application

under Section 156(3) of the Code of Criminal Procedure the averment

to the above effect on the affidavit is not sufficient but the applicant

must file the relevant document to show due compliance of Section

154(1) and Section 154(3) of the Code of Criminal Procedure. In the

instant case, the de facto complainant failed to establish before the

learned Magistrate that requirement of Section 154(1) and Section

154(3) was duly complied with. But the learned Magistrate without

considering such pre-conditions laid down by the Hon'ble Supreme

Court misdirected himself in sending the application under Section

156(3) of the Code of Criminal Procedure to the jurisdictional P.S.

directing the Officer-in-charge to treat the complaint as FIR.

Therefore, the initial order and registration of FIR is bad in law and

the proceeding being G.R. Case No. 373 of 2022 is required to be

quashed.

I have heard the learned advocate for the petitioner. In the

instant case police submitted charge sheet against the accused

persons. It may be a fact that the guideline of Priyanka Srivastava's

case was not complied with by the learned Magistrate while sending

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

Procedure but such objection out to have taken from investigation.

When charge sheet has been submitted on investigation, the learned

Magistrate is under obligation to take cognizance of offence either in

whole or in part on perusal of the charge sheet and other materials on

record. At this stage, any default in application under Section 156(3)

of the Code of Criminal Procedure, which now takes shape of FIR

cannot be quashed after filing of the charge sheet.

In view of such circumstances, I do not find any reason to

quash the proceeding at this stage for non-compliance of the

guidelines of Priyanka Srivastava's case by the learned Magistrate.

The instant revision is, therefore, summarily dismissed.

(Bibek Chaudhuri, J.)