Calcutta High Court (Appellete Side)

Harikishan Shaw vs The State Of W.B. & Ors on 24 November, 2023

                                 1


             IN THE HIGH COURT AT CALCUTTA
                Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                     C.R.R. No. -1580 of 2017


                     IN THE MATTER OF
                      Harikishan Shaw
                               Vs.
                      The State of W.B. & Ors.

For the Petitioner         :    Mr. OM Prakash Dubey Adv.,
                                Mr. Sailesh Kr. Gupta Adv.,
                                Mr. Samrat Shil Adv.,
                                Mr. Vijay Sanyal Adv.

For the O.P. No. 2 to 7    :     Mr. Milon Mukherjee Adv.,
                                 Mr. Biswajit Manna Adv.


For the State              :     Mr. Saswata Gopal Mukherjee, P.P,
                                 Mr. Abhra Mukerjee, Adv.,
                                 Mr. Dipankar Mahata Adv.




Argument heard on          : 29.03.2023, 05.04.2023, 19.04.2023,
                             20.04.2023, 21.04.2023, 25.04.2023,
                             26.04.2023, 11.05.2023




Judgment on                 : 24.11.2023
                                   2


Subhendu Samanta, J.

This is an application u/s 397 and 401 of the Code of

Criminal Procedure against an order dated 20th February 2017

passed by the Learned Judicial Magistrate 4th Court at Sealdah

in connection with GR No. 198 (2008) corresponding to Naihati

GRPS Case No. 24/2008 dated 23.12.2008 u/s 302/201/34 of

IPC.

The brief fact of the case is that Naihati GRPS case No.

24/2008 was initiated on 23rd December 2008 on the basis of a

written complaint lodged by one Rajendra Prasad Shaw, relaing

to the unnatural death of son of the present petitioner. After

completion of investigation the investigating agency submitted

the charge sheet being no. 21/2010 dated 18.07.2010 u/s

302/201/34 of the IPC against the present opposite party No. 2

to 7.

Later on a report was submitted by the investigating

officers to the SRP Sealdah GRPS after fresh evidence come to

light. Thereafter SRP Sealdah GRP vide his order dated 8th of

October 2010 directed the investigating officer to examine the

witnesses and submit a report to that effect. Accordingly the

investigating officer submitted a report to SRP Sealdah GRP

after recording the statement. The SRP Sealdah on perusal of

such report directed the IO to move the Learned Magistrate

with a prayer for further investigation. On 21st of October 2010

the Learned Judicial Magistrate 4th court-cum-Railway

Magistrate, Sealdah upon receipt of the said prayer from the

investigating officer was pleased to allow the Inspector in-

charge, Naihati GRP to make further investigation into the

matter according to the provision u/s 173 (8) of the Cr.P.C.

Thereafter on 14th February 2011, the investigating officer after

evaluating the statement of witnesses, and the forensic report,

submitted their report in final form as FRMF being FRMF No. 3

of 2011 dated 14.02.2011 with a prayer for discharging OP No.

2 to 7. Thereafter on 25.05.2011 the de-facto complainant filed

a protest petition/naraji petition challenging the report dated

14.02.2011 before the Learned Magistrate therein praying for

rejecting the prayer of investigating officer to discharge the

accused person and for committing the case to the Court of

Sessions.

The Learned Magistrate after perusal of the materials

collected during the investigation and protest petition filed by

the de-facto complainant was pleased to direct SRP Seladah

and also Inspector-In-Charge Naihati GRPS to conduct

reinvestigation to submit thereto by 16.02.2012. Thereafter

upon completion of reinvestigation the Inspector- In-Charge of

Naihati GRPS personally submitted a report in final form being

FRMF No. 4 of 2012 dated 10.02.2012 and prayed for

discharge of the opposite party No. 2to 7. The present

petitioner preferred another naraji petition/protest petition

against the said report dated 10th February 2012 before the

Learned Magistrate. Praying for rejection of the report and also

to commit the case to a Court of Sessions. The Learned

Magistrate has heard the de-facto-complainant also heard the

Learned APP and passed the impugned order on 20.02.2017

thereby rejecting the prayer of the petitioner accepted the

FRMF No. 4 of 2012 dated 10.02.2012 and discharge the

opposite party No. 2 to 7.

Being aggrieved by the said order dated 20th February

2017 the petitioner preferred the instant revision.

The Learned Advocate for the petitioner submits that the

impugned order passed by the Learned Magistrate is illegal in

the eye of law. The Learned Magistrate has taken cognizance of

the offence on the basis of a charge sheet vide charge sheet No.

21 of 2010 dated 18.07.2010 u/s 302/201/ 34 of IPC. The

offences are exclusively triabled by the Court of Sessions. The

Learned Magistrate after taking cognizance on the basis of the

earlier report had no option but to commit the case to the

Court of Sessions for trial. In this particular case the Learned

Magistrate has committed grave error by allowing investigating

agency to further investigation. He submits that once

cognizance has taken by the Learned Magistrate, thereafter

ordering further investigation is bad in law. he further submits

that the charge sheet was submitted in the month of July

2010; after a long three months the investigating authority was

kept themselves mum suddenly influenced of some extraneous

involvement again reopened the same case for investigation on

the behest of the I.O. of this case. The Learned Magistrate

should not have considered the prayer of the IO for allowing

him to further investigating the case when the charge sheet

has already been submitted. He argued that the Learned

Magistrate has erroneously excepted the final report and

discharged the present opposite parties from heinous offence

punishable u/s 302 IPC. The conduct of the investigating

agency is not beyond doubt; at this juncture the impugned

order passed by the Learned magistrate is liable to be set aside

and the case need be committed to the Court of Sessions for

trial.

In support of his contention he cited the decision of

Hon'ble Supreme Court passed in Chandrababu alias Moses

Vs. State (2015) 8 SCC 774. Paragraph 15 of the said

judgment be set as follows:

15.In Dharam Pal v. State of Haryana, the Constitution Bench, while accepting the view in Kishun Singh v. State of Bihar, has held thus :

"35. In our view, the Magistrate has a role to play while committing the case to the Court of Sessions upon taking cognizance on the police report submitted before him under Section 173(2) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the person named in Column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.

36. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court"

In this case Hon'ble Supreme Court has discussed about

the powers of Magistrate when he is in disagreement with the

final report of IO.

Learned Advocate for the petitioner also cited a decision

reported in Motilal Songara Vs. Preme Prakash Alias Pappu

and Another (2013) 9 SCC 199. In Motilal Songara (supra)

The Hon'ble Supreme Court has held that upon receipt of

police report ........

Upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)

(b) even if the police report is to the effect that no case is made out against the accused. In view of this enunciation of law by the three Judge Bench in India Carat (P) Ltd., (1989) 2 SCC 132, it must be held that in this case, the order taking cognizance cannot be found fault with. The Magistrate has taken cognizance on the basis of facts brought to his notice by the informant and, therefore, he has, in fact, exercised the power under Section 190(1) (b) Cr.P.C.

He also cited a decision of Hon'ble Supreme Court passed

in Nahar Sing Vs. State of U.P. (2022) 5 SCC wherein the

power of Magistrate was discussed by the Hon'ble Supreme

Court specifically when Magistrate is disagree with the police

report. The law has been specifically laid down by the Hon'ble

Supreme Court in Dharam Pal Vs. State of Haryana (2014) 3

SCC 306.

Learned Advocate for the petitioner also cited a decision

of Hon'ble Supreme Court passed in Sanjay Gandhi Vs. Union

of India reported in AIR (1978) Supreme Court 514 wherein

the Supreme Court has held that :

24. From a plain reading of the above section it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right of "further" investigation under sub-

section (8) but not "fresh investigation" or

"reinvestigation". That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated 27.6.1996 (quoted earlier) that the consent was being withdrawn in public interest to order a "reinvestigation "of the case by a special team of State Police officers, in the amendatory notification( quoted earlier) it made it clear that they wanted a "further investigation of the case "instead of "reinvestigation of the case". The dictionary meaning of "further (when used as an adjective) is "additional; more; supplemental".

"Further" investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports--and not fresh report or reports-- regarding the "further" evidence obtained during such investigation. Once it is accepted--and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji - that an investigation undertaken by CBI pursuant to a consent granted under section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that "further investigation" is a continuation of such investigation which culminates in a further police report under sub- section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigation into the case. To put it differently, if any further investigation is to be made it is the CBI alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case

is patently invalid and unsustainable in law. in view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246 of 1994 was redundant in view of the general consent earlier given by the State of Kerala.

In this case the Hon'ble Supreme Court has clarified the

power of the investigating agency in "further investigation".

Learned Advocate for the respondent submits that the

Learned Magistrate has committed no error. The prayer for

further investigation was made on behalf of the investigating

agency after fresh evidence regarding to the instant case came

to light. Subsequent to completion of such further investigation

the investigating agency submitted their report on mistake of

fact after evaluating the same with expert opinion, FSL report

and other evidences. Furthermore the charge sheet submitted

by the IO was in the initial stage shown the report of autopsy

surgeon which noted that "injuries into in the PM report may

be caused if the running the train dashed the said person".

From the inception it would be revealed that it was a case of

accidental death.

Learned Advocate for the OP further submits that after

filing of the first FRMF by the investigating agency, the Learned

Magistrate issued notice upon the de-facto complainant who

filed the naraji petition. On the basis of such naraji petition the

Learned Magistrate again directed the investigating agency

specifically the higher authority of the IO i.e; inspector in

charge of Naihati GRPS to conduct the investigation personally.

After completion of the third investigation the said designated

officers submitted second FRMF being 4 of 2012. On the basis

of such report the present petitioner again file one naraji

petition. It was turned down by the Learned Magistrate.

Learned Advocate/OP submits that the Magistrate has

committed no error in passing the impugned order Learned

Magistrate has perused the entire case diary as well as the

evidence collected by the investigating agency and accepted the

final report by discharging the opposite party No. 2 to 7.

In support of his contention he cited the decision of

Hon'ble Supreme Court passed in the case of K.

Chandrasekhar Vs. State of Kerala and Ors. (1998) 5 SCC

In Manu Sharma V. State (NCT of Delhi) (SCC p. 80, para 199), the Court stated that it is not only the responsibility of the investigating agency, but also that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with Law. An equally enforceable canon of the criminal law is that high responsibility lies upon the investigating agency not to conduct an investigation in a tainted or unfair manner. The investigation should not prima facie be indicative of a

biased mind and every effort should be made to bring guilty to law as nobody stands above law dehors his position and influence in the society. The maxim contra veritatem lex nunquam aliquid permittit applies to exercise of powers by the courts while granting approval or declining to accept the report.

Learned Advocate for the OP also cited another decision

of Hon'ble Supreme Court passed in Hasan Bhai Bhali Bhai

qureshi Vs State of Gujrat AIR (2004) Supreme Court 2078

wherein the Hon'ble Supreme Court has held that the power of

Magistrate of further investigation u/s 173(8) of Cr.P.C. cannot

be ruled out merely on grounds that it may delay trial, so even

after the court take cognizance of offence on police report

submitted by police. It is upon to police to conduct further

investigation in a proper manner on fresh effects coming to

light, police should seek permission of court for further

investigation.

He also cited a decision of Hon'ble Supreme court passed

in Vinay Tyagi Vs. Irshad Ali (2013) 5 SCC 762

27. Here, we will also have to examine the kind of reports that can be filed by an investigating agency under the scheme of the Code.

27.1 Firstly, the FIR which the investigating agency is required to file before the Magistrate right at the threshold and within the time specified.

27.2 Secondly, it may file a report in furtherance of a direction issued under Section 156(3) of the Code.

27.3 Thirdly, it can also filed a "further report", as contemplated under Section 173 (8).

27.4 Finally, the investigating agency is required to file a "final report" on the basis of which the court shall proceed further to frame the charge and put the accused to trial or discharge him as envisaged by Section 227 of the Code.

28. The next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct "further investigation" or "fresh investigation". As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct "fresh" or "de novo"

investigation. However, once the reports is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is filed to wipe out the report and its effects in law. Reference in this regard can be made to K. Chandrasekhar v. State of Kerala, Ramachandran v. R. Udhayakumar, Nirmal Singh Kahlon v. State of Punjab, Mithabhai Pashabhai Patel v. State of Gujrat and Babubhai v. State of Gujrat.

Heard the Learned Advocates.

Perused the materials on record also perused the

impugned order passed by the Learned Magistrate, it appears

that the Learned Magistrate has accepted the final report of the

police on mistake of fact and discharge the accused persons.

The Learned Advocate for the State submits that the

investigation was conducted in proper manner and the

investigating agency after collecting further evidences think it

necessary to file the final report which is based on the proper

evidences. State is of opinion that the impugned order passed

by the Learned Magistrate is not improper.

It further appears to me when the First Final Report was

filed by the investigating agency vide FRMF 3 of 2011 dated

14.02.2011 the petitioner being the de-facto complainant filed

a protest/naraji petition on 25.05.2011. On the said petition

the de-facto complainant prayed for rejection of prayer of IO of

discharges the accused persons and prayed for commit of the

case to the Learned Court of Sessions. The same was turned

down by the Learned Magistrate and he directed reinvestigation

to the inspector in charge of Naihati GRPS personally. The said

order of the Magistrate was not challenged before any of the

forum. Thereafter the investigating agency again filed one final

report vide FRMF 4 of 2014 dated 10.02.2012.

The petitioner herein has filed another naraji petition on

24.04.2012 on the basis of the same prayer which was actually

early turned down by the Learned Magistrate. So it is clear that

the petitioner has renewed his same prayer before the

Magistrate again and again.

I have gone through the material along with the CD. I

have also perused the impugned order passed by the Learned

Magistrate Section 173 (8) empowers the Magistrate to conduct

further investigation. The Supreme Court in Hanshbhai

Bhalibhai qureshi (supra) has specifically held that the power

of further investigation of the Magistrate cannot be ruled out

even if Magistrate has taken cognizance of the offence.

Basically the criminal case and criminal trial usually

conducted on the basis of the police report which collects the

evidence. The Magistrate is empowered u/s 190 (b) Cr.P.C to

take cognizance of an offence on the basis of a police report. If

the police report is disclosed about the commission of an

offence which is exclusively triable by a Court of Sessions, the

Magistrate has the power to commit the case to the court of

sessions. At the same time before committal of the case if the

police authority intend to introduce some more evidences

which is actually contrary to the charge sheet, the Magistrate

has ample power to look into the new materials. It is true that

the Magistrate has no power to evaluate the evidences of a case

solely triable by the court of sessions but at the same time

Magistrate is the only authority who has to determine whether

this offence is actually triable by the Magistrate or by the Court

of Sessions. In straightway the power of examination by the

Magistrate cannot be ruled out and it shall not be fettered by

any provision of the Code of Criminal Procedure.

In this particular case the charge sheet has been

submitted before the Learned Magistrate form which he has

taken cognizance; after sometime some further evidences came

on light to the investigating agency who prayed for further

investigation. The power of further investigation of the

investigating agency is always open till the conclusion of the

trial of a criminal case. Thus I find no error of the Learned

Magistrate to allow investigating agency to conduct the further

investigation. Moreover, the material which was perused by the

Learned Magistrate and his observations therein appears to me

justified. Impugned order on the basis of the two final reports

is not at all illegal or improper.

Considering the entire aspect I find no illegality in the

impugned order passed by the Learned Magistrate. Accordingly

the instant criminal revision got no merit and it is hereby

dismissed.