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1978 DIGILAW 436 (CAL)

Haladhar Mondal v. State

1978-07-07

JYOTIRMOYEE NAG

body1978
JUDGMENT This Rule is directed against an order passed by the learned Sub-divisional Judicial Magistrate, Jhargram, in G.R. Case No. 717 of 1977 rejecting the prayer of the petitioner complainant for recording the statements of the complainant and his witnesses under S. 164 of the Code of Criminal Procedure. The petitioner lodged an F.I.R. at Binpur Police Station on 23.11.77 alleging that the three bighas of land being plots No. 64 and 79 under mouza Bagnada belonging to Sri Sri Durga Mata Thakurani, and the petitioner and his other co-partners are in lawful possession of the same on behalf of the deity for a long time and like previous years they cultivated the same and grew paddy thereon in the current year. Early in the morning on that day while the petitioner and others were harvesting paddy from the said lands a large number of persons numbering about 200/300 suddenly came there armed with bows and arrows, lat his, tangis, pipe guns etc. and chased the petitioner and his men and attacked them. Being frightened the petitioner and his men began to retreat from the field, at that time the mob surrounded the petitioner and his men and began to shoot arrows and started firing from the pipe gun towards them as a result of which several persons were severely injured and one of them received gun shot injury. Thereafter the accused persons caught hold of one of them named Panchanan Mallick and brutally assaulted him with tangi and other weapons as a result of which the said Panchanan Mallick died. Police took cognizance of the case and started investigation after recording a case, being Case No. 19 dated 23.11.77 under sections 147, 148, 149, 324, 307 and 302 of the Indian Penal Code against the accused persons. On the same day one Ranjit Kumar Sardar lodged an F.I.R. at the Binpur Police Station alleging that in the morning he came to know that one Prafulla Patra and Aswini Patra and their men were harvesting the paddy from the disputed land which they had cultivated. They went to the field and found that the petitioner and his men numbering about 30/40 armed with bows, arrows, tangis, gun, etc. cutting away the paddy from the lands. Aswini Patra shot at his father from his gun. Thereafter there started a fighting between the two parties. They went to the field and found that the petitioner and his men numbering about 30/40 armed with bows, arrows, tangis, gun, etc. cutting away the paddy from the lands. Aswini Patra shot at his father from his gun. Thereafter there started a fighting between the two parties. Police took cognizance of this case also and started Binpur P.S. Case No. 20 dated 23.11.77 under Ss. 147, 148, 149, 324, 307, 302, 114 and 120B of the Indian Penal Code. The allegation made by the petitioner is this that the police officer who was investigating Binpur P.S. Case No. 19 dated 19.11.77 was hobnobbing with the accused persons who were practically guiding the investigation. When the petitioner and his witnesses contacted the I.O. on several occasions to have their statements recorded and to seize the documents in connection with the aforesaid plots which are in their possession the Investigating Officer did neither record the statement of the witnesses nor seized any document produced by the petitioner. In this case three accused persons had already been arrested and other named accused persons were at large and were moving freely. The petitioner was apprehensive that the I.O. was being very much influenced by the accused persons and was trying to demolish the case of the petitioner in collusion with the accused persons by making a perfunctory investigation. Stating all these facts the petitioner filed an application before the learned Magistrate and prayed that the investigation may be conducted by a superior police officer and the learned Magistrate directed the Superintendent of Police, Midnapore to change the I.O. in the interest of justice. The petitioner also filed similar application before the Superintendent of Police, Midnapore, but with no effect. Finding no other way the petitioner filed a petition before the learned Magistrate stating these facts and prayed that the statements of the eye-witnesses may be recorded by the learned Magistrate under S. 164 Cr. P.C. The learned Sub-divisional Judicial Magistrate rejected the prayer of the petitioner by his order dated 29.3.78. Against that order the petitioner has come up in revision before me. The reason for rejecting the application of the petitioner by the learned Magistrate are two-fold. P.C. The learned Sub-divisional Judicial Magistrate rejected the prayer of the petitioner by his order dated 29.3.78. Against that order the petitioner has come up in revision before me. The reason for rejecting the application of the petitioner by the learned Magistrate are two-fold. According to him the provision of law, i.e. S. 164 is to be read in the context of the whole chapter which deals with the investigation by police and reading it thus the learned Magistrate held that the law as it stands does not permit him to record the statements of the de facto complainant and his witnesses though in this case the learned A.P.P. who was in charge of the case conceded that to further the cause of investigation the learned Magistrate might record the statements of the witnesses under S. 164(5) Cr. P. C. It is true that S. 164 appeals in Chapter XII which is headlined as Information to Police and their powers to investigate. Section 164 Cr. P. C. is in aid of investigation no doubt. 2. Generally the police take a witness or an accused for recording either his statement or the confession of the accused under S. 164 before the learned Magistrate during investigation. These statements help the investigation and also have evidentiary value during trial. But as far as I can read S. 164 I do not see any bar to even a private person to help the cause of investigation and ultimately the cause of justice to record in a special case the statements of witnesses under S. 164(5) of the Code of Criminal Procedure. Here special circumstances have been made out by the petitioner for recording the statement of the de facto complainant (petitioner) and his witnesses under S. 164(5) Cr. P. C. The reasons have already been stated by me when dealing with the facts of the case. Here special circumstances have been made out by the petitioner for recording the statement of the de facto complainant (petitioner) and his witnesses under S. 164(5) Cr. P. C. The reasons have already been stated by me when dealing with the facts of the case. Accordingly in view of the special circumstances of the case, I think it will be in the interest of justice to have the statements of the de facto complainant and his witnesses recorded under S. 164(5) Cr.P.C. As I have already stated the I.O. is trying to weaken and even to demolish the case of the de facto complainant by refusing to take steps to record the statements of witnesses of the earliest possible opportunity and also to seize the necessary document and alamats in connection with the case. 3. Accordingly in the interests of justice I direct the learned Magistrate to record the statements of the de facto complainant and his witnesses as will be produced by him under S. 164(5) Cr. P. C. The impugned order is accordingly set aside and the Rule is made absolute. Let, the records go down as early as possible. Rule made absolute.