Research › Browse › Judgment

Calcutta High Court · body

1962 DIGILAW 67 (CAL)

State v. Nirode Chandra Mukherjee

1962-03-12

NIYOGI

body1962
ORDER : This is a reference made by the Sessions Judge, Hoogly, under Sec. 438 Cr. P. C. It is necessary for the purpose of this reference to shortly state the facts of this case. Sometime in the year 1958 a charity show was held in aid of Mahadanga Free Primary School at Chundernagore of which the accused Nirode Chandra Mukherjee is the President. The co-accused Kamal Kumar Mukherjee is his son. One Anil Kumar Ganguli filed a petition before the District Magistrate, Hoogly alleging that the Mukherjees had misappropriated money by sale of tickets. The matter was referred to the police and Inspector S. C. Choudhury of D. E. B. held an enquiry and submitted written complaint to the officer-in-charge of the Chundernagore Police station on 21-2-61 alleging misappropriation of Rs. 6/- by the Mukherjees. That petition of complaint was treated as F.I.R. and the police took up investigation. On being moved by the aforementioned Anil Kumar Ganguli who complained against the nature of the investigation that was carried on by the police, the Magistrate called for a report from the investigating officer. The I. O. reported that investigation was in progress. The Magistrate still directed the police to comply with the provisions of Sec. 170(1) Cr. P. C. by his order dated 29-5-61. Again on being moved by Anil Kumar Ganguli, the Magistrate called for a report from the I.O. on 2-9-61 and the I.O. reported stating that the handwriting expert's report had been received in part and wanted some more time to complete the investigation. Thereafter the Magistrate called for the report of the handwriting expert and the report of the expert was produced before the Magistrate on 23-9-61, on which date the I.O. again made a prayer for further time for completing the investigation. On 23-9-61 the Magistrate passed the following order : "23-9-61 .... I. O. directed to comply with the provisions of law as laid down in Sec. 170(1) Cr. P. C. which is a mandatory provision and effect the arrest of the accused forthwith and report compliance by 7-10-61." 2. Thereupon the accused Mukherjees moved the Sessions Judge, Hooghly under Secs. 435 and 438 Cr. P. C. for making reference to this Court against the said order of the Magistrate. The Sessions Judge has expressed the following opinion in the letter of reference. Thereupon the accused Mukherjees moved the Sessions Judge, Hooghly under Secs. 435 and 438 Cr. P. C. for making reference to this Court against the said order of the Magistrate. The Sessions Judge has expressed the following opinion in the letter of reference. "It has been held in Parul Bala Sen Gupta v. State, AIR 1957 Cal 379 following the Privy Council ruling reported in Emperor v. Nazir Ahmad, 49 Cal WN 191: (AIR 1945 PC 18) that the proceedings before the police in investigation are proceedings over which the police alone have full control and the Magistrate has no power to interfere with such proceedings. The magistrate, therefore, should not intervene at the stage of investigation and direct the police to arrest the accused. For the reasons given above, in my opinion, the impugned order of the magistrate is improper and illegal and should be set aside." 3. A preliminary objection has been raised by Mr. Pankaj Coomar Ghose against the maintainability of this reference on the ground that the accused Mukherjees had not yet surrendered before the Magistrate and before doing that they are not entitled to thus move the Sessions Judge for making a reference to this Court. Mr. Ghose has in this connection relied on an unreported Bench decision of this Court in Ref. No. 93 of 1961 (undefended case) in which Amaresh Roy J. has expressed this view :- "It appears clear, therefore, that the accused petitioner had not obeyed the summons of the learned Magistrate but instead moved the Court of the Sessions Judge. It has been a wholesome practice that the discretionary jurisdiction of Revision and Reference is not exercised by the superior courts unless the petitioner who invokes that jurisdiction has obeyed the order of the Subordinate Court. For that reason the learned Sessions Judge should not have admitted the Revisional application made before him and should not have made this Reference at all." 4. This contention of Mr. Ghose is misconceived and the view expressed in the above case is not at all applicable to the facts of the present case. In that case the Magistrate had already given direction for issue of a process and the accused without complying with that direction moved the Sessions Judge for making this reference. This contention of Mr. Ghose is misconceived and the view expressed in the above case is not at all applicable to the facts of the present case. In that case the Magistrate had already given direction for issue of a process and the accused without complying with that direction moved the Sessions Judge for making this reference. But in this case, as we have seen above, the police had not yet submitted any charge sheet against the accused persons and therefore, there was no occasion for the Magistrate to direct the issue of process against the accused Mukherjees. In that circumstance it cannot be said that the Mukherjees had failed to obey the order of the Magistrate. This contention of Mr. Ghose is, therefore, overruled. 5. I think the facts of this case will be guided by the Privy Council dictum given in the case of 49 Cal WN 191 : (AIR 1945 PC 18). In that case the Privy Council held that the statutory right of the police to carry on investigation under Ch. XIV of the Code of Criminal Procedure, before a prosecution was launched, could not be interfered with by the Court in the exercise of its inherent jurisdiction. The observations made by the Privy Council in this respect will appear from the Full Bench decision of this Court in A. K. Roy v. State of West Bengal, AIR 1962 Cal 135 at p. 139. The said observations are to the following effect : "Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India there is a statutory right on the part of the police to investigate the circumstances of an alleged cognisable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with these statutory rights by an exercise of the inherent jurisdiction of the Court. In India there is a statutory right on the part of the police to investigate the circumstances of an alleged cognisable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with these statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under Sec. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus." 6. Reference may also be made to the case of AIR 1957 Cal 379 , where it was held by Debabrata Mookerjee, J. that the proceedings before the police in investigation are proceedings over which the police alone have full control, and neither the Magistrate nor even the High Court has power to interfere with such proceedings. 7. Therefore, for the reasons given above, the order of the Magistrate directing the police "to effect arrest of the accused forthwith and report compliance by 7-10-61" was improper and not in accordance with law and must be interfered with. 8. The Reference is, accordingly, accepted and the impugned order of the Magistrate dated 23-9-61 to the extent indicated above is set aside. The Magistrate should now wait for the submission of the report by the police under Sec. 173 Cr. P. C. and then proceed in accordance with law. 9. Let the records be sent down as expeditiously as possible. Reference accepted.