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2000 DIGILAW 368 (CAL)

SUSANTA MUKHERJEE v. THE STATE OF WEST BENGAL

2000-07-27

DEBIPRASAD SENGUPTA

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D. P. SENGUPTA, J. ( 1 ) -THIS revisional application is for quashing of a proceeding arising out of Sonarpur P. S Case No. 325 dated 14. 12. 89 under sections 468/471/420/120b of the Indian Penal Code. ( 2 ) THE aforesaid case was registered with Sonarpur Police Station on the basis of a complaint lodged by one Ashok Kr. Guha, Inspector of Police, D. E. B. , South 24 Parganas alleging commission of offences punishable under the aforesaid sections. The allegations levelled in the said complaint is that the petitioner in collusion with some employees of Sonarpur Employment Exchange forged certain documents and by using such documents, obtained employment as a Sub-Inspector of Police in the West Bengal Police Force. The investigating Agency after completion of investigation submitted a report in final form vide Final Report No. 46 dated 31. 3. 94. In the said final report it was stated that there was no substantive and tangible evidence available to submit the chargesheet against the petitioner and no evidence could be collected for submission of chargesheet. It was also stated in the said final report that the investigating agency could not detect the maker of the forged documents and failed to recover any counterfeit seal or any other instrument from the possession of the petitioner and as such investigating agency failed to unearth any complicity of the petitioner. ( 3 ) THE said final report was placed before the learned Sub-Divisional Judicial Magistrate, Alipore and the learned Magistrate by his order dated 19. 4. 94 and 20. 4. 94 discharged the petitioner from the instant case and accepted the final report submitted by the Investigating Agency. ( 4 ) IT appears that on 2. 8. 99 and application was filed by one Shri Tapan Nandy, Inspector of Police, Enforcement Branch, West Bengal praying for reopening the investigation in connection with Sonarpore Police Station Case No. 325 dated 14. 12. 89. On receipt of the said application the learned Magistrate by his order dated 2. 8. 99 allowed such prayer made by the Inspector of Police. The Investigating Agency thereafter submitted chargesheet against the petitioner under sections 468/471/420/120b/201 of the Indian Penal Code. On receipt of the said chargesheet the learned Magistrate by his order dated 4. 9. 99 took cognizance of the offence and issued process against the petitioner. 8. 99 allowed such prayer made by the Inspector of Police. The Investigating Agency thereafter submitted chargesheet against the petitioner under sections 468/471/420/120b/201 of the Indian Penal Code. On receipt of the said chargesheet the learned Magistrate by his order dated 4. 9. 99 took cognizance of the offence and issued process against the petitioner. It is at this stage the petitioner has come up before this Court in revision for quashing of the said proceedings. ( 5 ) MR. Mukherjee, the learned. Advocate appearing for the petitioner submits that the investigation of the instant case was initially taken up on or from 14. 12. 89 and after investigation for nearly 5 years the investigating agency could not find any cogent and tangible evidence against the petitioner to justify the submission of chargesheet against the petitioner. More than 5 years after the submission of final report the case was reopened and the investigating agency submitted a chargesheet against the petitioner under the aforesaid sections. It is the submission of Mr. Mukherjee, the learned Advocate that the submission of chargesheet was motivated and a product of perfunctory investigation. The investigation conducted by the investigating agency is malafide and was not instituted in order to find out the truth. Mr. Mukherjee further submitted that the earlier order, accepting the final report submitted by the investigating agency, is a judicial order passed by him in his acceptance as 'court'and it has become final. Further, the same has not been challenged or reversed by any competent forum at the instance of the opposite party. Hence the entire proceedings are vitiated with illegality and have to be quashed. It is also submitted that on the date when chargesheet was filed after reopening the case, no police report was pending since the learned Magistrate has not taken cognizance on the basis of earlier report submitted by the Sub-Inspector and as such fresh chargesheet is not permissible under the law. ( 6 ) MR. Mukherjee in support of his contention relies on a judgment reported in 1988 Criminal Law Journal, 214, wherein the learned single Judge of Madras High Court held as follows:-"thus, in view of the ratio laid down in the above decision, it is clear that the order passed by the Magistrate on the basis of the first report submitted by the Sub Inspector is a judicial order. The second revised report contemplated under section 173 (8) of the Code is only in case where the charge-sheet is filed and subsequently revised or additional chargesheet is contemplated on the further materials available, and not in a case where the case was already referred as mistake of fact and accepted by Court". ( 7 ) THE short contention of the petitioner is that when once the investigation was made by the investigating Agency and the Magistrate on the submission of the final report by the Investigating Agency accepted the same, the police has no power to reinvestigate the same complaint or to reopen the investigation at the instance of an Inspector of Police again and filed a chargesheet against the petitioner as has been done in the present case. According to the petitioner the acceptance of the final report submitted by the police on earlier occasion after due investigation on passing an order of the Magistrate on the police report in respect of an offence, will amount an acquittal of the petitioner, which has become final unless the said order of the Magistrate is reversed by a competent higher judicial forum. ( 8 ) THE question for consideration is whether the learned Magistrate having accepted a final report which was submitted by the police after conclusion of investigation, can take cognizance of the offence on the basis of a report submitted by police after reinvestigation of the same case. ( 9 ) IN the present case the police had once put up a detailed report after complete investigation and on the basis of said report (final report) filed by the Investigating Agency the Magistrate passed an order accepting the final report. The said order passed by the learned Magistrate is judicial in nature. The Magistrate while passing the order, exercised his judicial mind and discretion, and unless that order is set aside the reinvestigation of the case on the same complaint is an illegality. In this case the Magistrate has not taken cognizance at all on the earlier police report submitted by the Investigating Agency under section 173 of the Code of Criminal Procedure. In this case the Magistrate has not taken cognizance at all on the earlier police report submitted by the Investigating Agency under section 173 of the Code of Criminal Procedure. Had there been the police report against the petitioner pending before the Magistrate, and if no order is passed on the police report by the Magistrate and if the Investigating Agency, while the report is pending before the Magistrate, holds a further detailed enquiry and collects several other particulars of the offence committed by the petitioner and submits a further report, then it can be said that the further investigation by the Investigating Agency is permissible under the law. But in the present case there is no cognizance at all on the earlier police report and when once the Magistrate accepts the final report submitted by the police, it is a judicial order, because the Magistrate has passed the said order after applying his judicial mind on the report submitted by the Investigating Agency. Taking cognizance of the same offence by the Magistrate on a reinvestigation of the case by the police without any refresh complaint by the complainant is illegal, perverse and contrary to the law. ( 10 ) IN the judgment reported in 1982 Criminal Law Journal, 707 it was observed by M. A. Sathar Sayeed, J. as follows :-"there must be a limit for investigation of the compliant by the Police. The Police cannot at the instance of one officer after enquiry, say that there is no case against the petitioner and that report having been accepted by the Magistrate, subsequently at the instance of another police officer, as in this case the Inspector of Police says that there is a case against the petitioner. "i have heard the learned Advocate appearing for the State, who submits that the allegation made in the complaint clearly discloses an offence against the petitioner and as such this Court should not exercise its inherent jurisdiction in quashing a criminal proceeding of this nature. In view of the discussion made above, I am of the view that the impugned proceeding arising out of Sonarpur P. S. Case No. 325 dated 14. 12. 89 under sections 468/471/420/120b IPC against the petitioner is vitiated with illegality and therefore is liable to be quashed. This revisional application is accordingly allowed. The impugned proceeding as aforesaid is hereby quashed. Application allowed