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1991 DIGILAW 67 (CAL)

RADHANATHPAL v. TARAPADA GHOSH

1991-02-12

JYOTIRINDRA NATH HORE

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JYOTINDRA NATH HORE, J. ( 1 ) THE present revisional application is directed against the order dated 4-1-1991 passed by the learned Sub-Divisional Judicial Magistrate at Arambagh rejecting the naraji petition with complaint and also rejecting the prayer for staying the return of the bus bearing WBS 2577 to the accused opposite-parties. ( 2 ) THE petitioner lodged a complaint before the learned Sub-Divisional Judicial Magistrate, Arambagh on 20-12-1983 alleging inter alia that one Tapas Bhattacharjee and others obtained a Route Permit on the Arambagh-Parakeswat-Garerghat route (16/20 Route) from the Regional Transport Authority. The said Tapas Bhattacharjee and others were unable to ply the bus on the said route for financial difficulties and as such on their request the present petitioner purchased the permanent route permit from Tapas Bhattacharjee and others and purchased the bus No. WBS 2577 in 1970 from Ganesh Narayan Brijlal Ltd. on Hire Purchase System to fun the same by virtue of the said route permit. The petitioner afterwards has repaid all the dues with proper receipts. The accused opposite-party No. 11 was the guarantor for sale. Accordingly, Tapas Bhattachaijee and others executed a Deed of Agreement which is valid upto 2076 A. D. and General Power of Attorney in favour of the petitioner on 30-8-1977 to run the bus according to the said route permit. The petitioner became the sole owner of the bus in question and of the route permit. The petitioner then began to run the bus with accused-opposite party No, Tarapada Ghosh, as Manager and Conductor. As it was necessary to repair the bus, the petitioner acting on the advise of accused opposite party No. 1, gave the bus to the garage of Han Sharma and accused opposite party No. 1, Tarapada Ghosh was entrusted with looking after the bus. One day the bus was taken to Chinsurah without the pernlission of the petitioner and all the papers were seized by the police. Then one Jivan Krishna Mishra was entrusted to look after the bus. Then on 3-12-1983 the accused opposite party No. 1 with the conspiracy of other accused opposite parties tried to sell the bus at Calcutta and the said Jivan Krishna Mishra lodged a diary at the police station of Khanakul and the Police, Officer kept the said bus at the police station as unclaimed property. Then on 3-12-1983 the accused opposite party No. 1 with the conspiracy of other accused opposite parties tried to sell the bus at Calcutta and the said Jivan Krishna Mishra lodged a diary at the police station of Khanakul and the Police, Officer kept the said bus at the police station as unclaimed property. On receipt of information, the petitioner went to Khanakul Policc Station on 4-12-1983 and from there to the Regional Transport Authority in Hooghly and came to learn that all the accused-opposite parties had fraudulently transferred the said bus to their names. The petitioner, therefore, lodged complaint under Sections 408/379/411 and 120b of the Indian Penal Code and the learned Sub-Divisional Judicial Magistrate passed an order under Section 156 (3), Cr. P. C. for police investigation. ( 3 ) THE Investigating Officer submitted a final report on 9-1-1988 without any enquiry and examination of witnesses. The petitioner raised objection against the final report and the learned Magistrate directed for re-Investigation and against that order the accused-opposite parties moved this Court in revision and the case was disposed of with a direction to the Sub-Divisional Judicial Magistrate at Arambagh for custody of the vehicle in accordance with law after giving an opportunity to both the contending parties. After re-investigation the Investigating Officer again filed a final report The petitioner through his Advocate filed a naraji petition with complaint alleging all the facts of mala fide and biased investigation and further made an application for n6t releasing the said bus bearing No. WBS 2577 till the disposal of the naraji petition with complaint. The learned Magistrate did not treat the naraji petition as a complaint but only as a protest against the investigation and accepted the final report and discharge the accused-opposite parties. The seized, bus was also directed to be returned to the registered owners of the bus. ( 4 ) MR. Sengupta, learned Advocate for the petitioner has contended that the learned Magistrate has acted illegally in not treating the naraji petition as a fresh complaint. It has been contended that if a naraji petition satisfies the requirements of a complaint as defined in Section 4 (h) of the Code it should be treated as a complaint and the learned Magistrate ought to have proceeded accordingly. It has been contended that if a naraji petition satisfies the requirements of a complaint as defined in Section 4 (h) of the Code it should be treated as a complaint and the learned Magistrate ought to have proceeded accordingly. In support of his contention he has referred to a Single Bench decision of this Court in Sunil Majhi v. State wherein it has been held that: A Naraji filed against the report of an enquiry under Section 202 of the Cr. P. C. if it satisfies the requirements of a complaint as defined in Section 4 (h) of the Code, may after dismissal of the petition of complaint, be treated as a fresh complaint and disposed of as such after the Magistrate has taken cognizance of the offence under Section 200. Similarly, a naraji against a final report submitted in a case investigated by the Police on a First Information Report should be treated as a complaint if the same satisfies its requirements in law In the case of a naraji filed in a complaint case which may be treated as a second petition of complaint, the same must, however, be maintainable as such under the law. As a simple protest petition against a report under section 202 of the Code, the naraji can never be a complaint and it has to be dealt with by the Magistrate on its own merits while considering the enquiry report and if the report be unacceptable either in view of the statements and allegations in the naraji or for any other reason, nothing in Section 202 of the Code would stand in the way of the Magistrate directing a further enquiry or a fresh enquiry by any other agency for the purpose of satisfying himself as to whether process should issue in the case. A simple protest petition against a final report submitted by the Police is of no avail, the proper course to be taken by the petitioner being to file a naraji stating the facts of the case and praying for action by the Court so that the same may be treated as a complaint and disposed of as such. ( 5 ) NOW, in the instant case, a naraji petition along with a formal petition of complaint was filed by the present petitioner. The petition of complaint was filed as part of the naraji petition. ( 5 ) NOW, in the instant case, a naraji petition along with a formal petition of complaint was filed by the present petitioner. The petition of complaint was filed as part of the naraji petition. The naraji petition clearly satisfies the requirements of a complaint as defined in Section 4 (h) of the Code. The learned Magistrate erred in not treating the naraji petition with complaint as a complaint and proceeding as such. He dismissed the petition treating it merely as a protest against the police investigation. ( 6 ) THE revisional application is therefore, allowed and the impugned order rejecting the naraji petition is set aside. The learned Magistrate will treat the naraji petition including the petition, of complaint as a fresh complaint, and proceed according to law. ( 7 ) SO, far as the question of return of the seized bus is concerned, the Police will return the bus to the present registered owner upon execution of a Bond of Rs. 1,00,000/- (Rupees one lakh) to the satisfaction of the lower Court with condition of producing the bus in Court whenever called upon to do so and also on further condition that the bus or any parts thereof will not be transferred and the bus will not be taken out of the Hooghly District without prior permission of the Court below, Of course, the person to whom the bus would be returned, would have right to make repairs, as and when necessary, with information to the Court.