Calcutta High Court (Appellete Side)

The State Of West Bengal & Anr vs Sudan Chandra Gorai And Ors on 24 November, 2023

                      IN THE HIGH COURT AT CALCUTTA

                      (Criminal Revisional Jurisdiction)

                              APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                              CRR 1251 of 2019

                       The State of West Bengal & Anr.

                                     Vs

                        Sudan Chandra Gorai and Ors.




For the Petitioners                       : Mr. Sudip Ghosh,
                                            Mr. Saryati Datta.



For the Opposite Party Nos. 1, 2 & 3      : Mr. Aritra Bhattacharya.




Hearing concluded on                : 20.11.2023

Judgment on                         : 24.11.2023
                                        2


Shampa Dutt (Paul), J.:

1. The present revision has been preferred by the State of West Bengal against

an order dated 01.02.2019 passed by the learned Sessions Judge, Purulia

in connection with Criminal Revision No. 50 of 2013, thereby affirming the

order dated 15.03.2013 passed by the learned Additional Chief Judicial

Magistrate, Raghunathpur in G.R. Case No. 352 of 2012.

2. The facts in brief is that on the basis of a complaint filed by one Sudan

Chandra Gorai under Section 156(3) Cr.P.C., Para Police Station, Case No.

57/12 was registered on the direction of the Court.

3. On completion of investigation, final report being FRMF No. 02/13 was

submitted.

4. The complainant filed a 'Naraji' petition. Vide order dated 05.02.2013, the

learned Additional Chief Judicial Magistrate was pleased to direct the

Deputy SP, DEB, Purulia to reinvestigate the case and submit a report on

completion of the investigation. By way of complying with the said order,

Deputy SP, DEB, Purulia took up investigation of the case.

5. That before the Deputy SP, DEB, Purulia could submit his report of

investigation, the informant preferred another petition on 15.03.2013

before the learned Additional Chief Judicial Magistrate, Raghunathpur,

being G.R. Case No. 352/12, for transferring the case to Criminal

Investigation Department, West Bengal for investigation.

6. Vide an order dated 15.03.2013 the Court directed Superintendent of

Police, Purulia to send the case diary to the CID, West Bengal for further

investigation.

7. On 20.12.2013, CID, West Bengal preferred a criminal revision, being

Criminal Revision No. 50/2013 before the learned Sessions Judge, Purulia,

praying for reconsidering the order of the learned Additional Chief Judicial

Magistrate, Raghunathpur dated 15.03.2013 in G.R. Case No. 352/12 and

to direct the Deputy SP (DEB) Purulia to investigate the case.

8. The Criminal Revision Case No. 50/13 was disposed of by the learned

Additional District Sessions Judge, Raghunathpur by an order dated

01.02.2019, wherein the order dated 15.03.2013 passed by the learned

Additional Chief Judicial Magistrate, Raghunathpur in G.R. Case No.

352/12 was affirmed.

9. Hence the revision.

10. The petitioner/State has filed a supplementary affidavit in support of the

orders of the learned Magistrate.

11. Mr. Sudip Ghosh, learned counsel for the State has relied upon the

judgment of the Supreme Court in Chandra Babu alias Moses vs State

through Inspector of Police & Ors., (2015) 8 SCC 774, where in the

Court held:-

"20. We have reproduced the conclusion in extenso as we are disposed to think that the High Court has fallen into error in its appreciation of the order passed by the learned Chief Judicial Magistrate. It has to be construed in the light of the

eventual direction. The order, in fact, as we perceive, presents that the learned Chief Judicial Magistrate was really inclined to direct further investigation but because he had chosen another agency, he has used the word "reinvestigation".

Needless to say, the power of the Magistrate to direct for further investigation has to be cautiously used. In Vinay Tyagi [(2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557] it has been held : (SCC p. 791, para 41)

"41. ... The power of the Magistrate to direct „further investigation‟ is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code."

21. In the said case, the question arose, whether the Magistrate can direct for reinvestigation. The Court, while dealing with the said issue, has ruled that : (Vinay Tyagi case [(2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557] , SCC p. 791, para 43)

"43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct „further investigation‟, „fresh‟ or „de novo‟ and even „reinvestigation‟. „Fresh‟, „de novo‟ and „reinvestigation‟ are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection."

And again : (SCC p. 794, para 51)

"51. ... Whether the Magistrate should direct „further investigation‟ or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct „further investigation‟ or „reinvestigation‟ as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation."

22. We respectfully concur with the said view. As we have already indicated, the learned Chief Judicial Magistrate has basically directed for further investigation. The said part of the order cannot be found fault with, but an eloquent one, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency. Therefore, that part of the order deserves to be lancinated and accordingly it is directed that the investigating agency that had investigated shall carry on the further investigation and such investigation shall be supervised by the Superintendent of Police concerned. After the further investigation, the report shall be submitted before the learned Chief Judicial Magistrate who shall deal with the same in accordance with law. We may hasten to add that we have not expressed any opinion relating to any of the factual aspects of the case."

12. In the present case, in spite of there being a pending further

investigation, the Magistrate directed further investigation by another

agency, which is clearly an abuse of the process of law/Court and thus

being not in accordance with law in liable to be set aside in the interest of

justice.

13. CRR 1251 of 2019 is allowed.

14. Accordingly, order dated 01.02.2019 passed by the learned Sessions Judge,

Purulia in connection with Criminal Revision No. 50 of 2013, thereby

affirming the order dated 15.03.2013 passed by the learned Additional

Chief Judicial Magistrate, Raghunathpur in G.R. Case No. 352 of 2012, is

set aside.

15. Keeping with the guidelines of the Supreme Court in Chandra Babu alias