Kaushik Kumar Kar & Anr vs The State Of West Bengal
2023 Latest Caselaw 7415 Cal

                                          1


               IN THE HIGH COURT AT CALCUTTA
                 Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                        C.R.R. No. - 2714 of 2018
                                  With
   IA No. CRAN 2 of 2019 (Old No. CRAN 1283 of 2019)
                    IN THE MATTER OF

                  Kaushik Kumar Kar & Anr.
                             Vs.
                   The State of West Bengal

For the Petitioners            : Mr. Milon Mukherjee, Adv.,
                                 Mr. Biswajit Manna, Adv.,

For the State                 :     Mr. Narayan Prasad Agarwala, Adv.,
                                    Mr. Pratick Bose, Adv.




Judgment on                         :         18.11.2023



Subhendu Samanta, J.

This is an application u/s 482 of the Code of Criminal

Procedure preferred against an order dated 1st of September

2018 passed by the Learned Additional Chief Judicial

Magistrate Bidhannagar in connection with MP Case No. 75 of

2018 thereby directing the Inspector In-charge of Bidhannagar

South Police Station to conduct the investigation treating

complaint of the opposite party No. 2 as a first information

report.

The brief fact of the case is that petitioner No. 1 and 2

are the directors of M/S NC Print Private Limited engaged in

trade of printing confidential documents for different

Government Organisations. The petitioner No. 3 is a business

associate of petitioner No. 1 but not associated with the

company.

The opposite party No. 2 was a previous employee of the

company and alleged that the primary business of the company

revolved around leakage of question papers of different boards,

universities, commission etc. The opposite party No. 2 has

lodged a written complaint with the Learned ACJM

Bidhannagar on 1st of September 2018 contending inter alia

with business of present petitioners regarding leakage of

question papers has been informed to the police through IC

Bidhannagar South on 30th of August 2018. Consequent

thereto the opposite party No. 2 was threatened to kill by the

present petitioners. The petitioner informed the matter through

a complaint to police authorities against such conduct of the

petitioner. It has been alleged that since then the opposite

party was facing threat calls from accused persons and was

attacked on 31st August, 2018 at Sukanta Nagar area.

Accordingly he approached before the Learned Magistrate with

a prayer u/s 156(3) of Cr.P.C.

On the basis of such written complaint the Learned

Magistrate passed the impugned order on 1st of September

2018 and directed the IC Bidhannagar South Police Station to

conduct investigation after treating the said petition of

complaint as FIR.

Being aggrieved by the impugned order passed by the

Learned Magistrate the instant criminal revision has been

preferred.

Learned Advocate for the petitioner submits that the

present opposite party No. 2 is one of the Ex-employee of the

petitioner's company. The allegations made in the petition of

complaint are totally false. The petition u/s 153(3) of Cr.P.C.

does not disclosed any cognizable offence. The complaint is

purposive and mala fide by an Ex-employee.

Learned Advocate for the petitioner further argued that

the Learned Magistrate has failed to appreciate the guideline of

Hon'ble Supreme Court passed in Priyanka Sribastava Vs.

State of Uttar Pradesh (2015) 6 SCC 287.

He argued that the Learned Magistrate has forwarded

complaint of the opposite party No. 2 and directed the concern

IC to lodge FIR. The parameters of the Hon'ble Supreme Court

passed in Priyanka Sribastava Vs. State of Uttar Pradesh

(supra) has not been followed. He further argued that it is not

specified in the petition of complaint whether the opposite

party No. 2 has registered a GD or complaint to the concern

Police Station on 30th of August 2018.

In this case the OP No. 2 after complaining to IC on

30.08.2018 u/s 154 (1) Cr.P.C., did not submit complaint u/s

154(3). The provision u/s 156 (3) Cr.P.C. cannot be invoked

without following the procedure laid down u/s 154(1) and

154(3) Cr.P.C. There are no details in the petition of compliant

how the complaint dated 30th of August 2018 was lodged with

the PS.

Learned Advocate for the petitioner submits that the

impugned order passed by the Learned Magistrate is liable to

be set aside and the entire criminal proceeding need be

quashed.

Learned Advocate appearing on behalf of the state

submits that the present petitioner No. 1 is facing trial of same

nature of offence of leaking of question papers in Cholapur PS

(U.P. Baranasi). It is further submission of Learned Advocate

for the state that there are sufficient materials which was

collected by the IO during the course of investigation. The

impugned order passed by the Learned Magistrate is a

speaking order and there is no impropriety of the said order.

Thus it cannot be set aside.

Heard the Learned Advocates.

Perused the materials and also perused the impugned

order passed by the Learned Magistrate.

In a case of Priyanka Sribastava Vs. State of Uttar

Pradesh and Ors (supra) the Hon'ble Supreme Court has held

that an application u/s 156 (3) Cr.P.C. seeking direction for

registering FIR must be supported by an affidavit. The Hon'ble

Supreme Court has also held that prior application u/s 154 (1)

Cr.P.C. and Section 154 (3) Cr.P.C. have to be in existence

while filing a petition u/s 156 (3) Cr.P.C. and these aspects

should be clearly spelt out in the application u/s 156 (3) and

necessary documents to that effect has to be filed.

Let me consider whether the guideline of Hon'ble

Supreme Court in Priyanka Sribastava has been followed by

this Learned Magistrate of this case. It appears that the

petition of complaint has supported by an affidavit of OP No. 2

thus the first criteria of Priyanka Sribastava has been

complied with.

The petition of complaint has disclosed regarding the

filing of complaint with the police earlier to the filing of instant

petition of complaint. The Learned Magistrate in passing the

impugned order has perused the documents to that effect

which spelt out the prior filing of complaint with the police

authority.

I make it clear that the provision u/s 154 (3) only arises

when there is a refusal of the police authority for recording the

complaint u/s 154 (1) Cr.P.C. In this case the complainant has

stated in his petition of complaint that the police authority has

received the complaint; thus there is not denial as per

provision u/s 154 (1) Cr.P.C. by the concern Police Authority.

Learned Magistrate has gone through the petitioner of

complaint along with the documents and is of opinion that the

directions of Hon'ble Supreme Court given in Latika Kumari

and Priyanka Sribastava has been complied with. I find no

infirmity in the finding of Learned Magistrate in passing the

impugned Order.

In the case of Priyanka Sribastava (supra) the Hon'ble

Supreme Court has criticized heavily regarding casual practice

of preferring an application u/s 156(3) Cr.P.C. in a routine

manner and forwarding the same to the police authority for

investigation. The case before the Supreme Court in Priyanka

Sribastava is totally different to the present case. Moreover, it

appears to me that Learned Magistrate was justified in

forwarding the petition of complaint to the concern police

authority for investigation.

I find no merit to entertain the instant criminal revision

as it is devoid of merit.

In conclusion thereof the instant criminal revision is

dismissed.

The CRR is disposed of.

Connected CRAN applications if pending are also

disposed of.

Any order of stay passed by this court during the

pendency of the instant criminal revision is hereby vacated

Parties to act upon the server copy and urgent certified

copy of the judgment be received from the concerned Dept. on

usual terms and conditions.

(Subhendu Samanta, J.)