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2000 DIGILAW 493 (CAL)

Sudipta Sen v. State of West Bengal

2000-09-22

Prodyot Kumar Sen

body2000
Judgment Prodyot Kumar Sen, J. This application under section 482 of the Code of Criminal Procedure is at the instance of an informant and is directed against the order dated 4.8.2000 passed by M. Singh, Judicial Magistrate, Alipore in connection with Bishnupur P.S. Case No. 38(1) 1999. 2. This informant lodged a First information Report alleging that on 29.1.99 at about 11-40 hrs. Some unknown miscreants had committed murder of Biswanath Adhikary inside the compound of sarada Garden on Diamond Harbour Road. Upon such F.I.R., Bishnupur P.S. Case No. 38(1) 99 commenced and investigation proceeded. But, at the completion of investigation, Officer-in-Charge, Bishnupur P.S. submitted a final report and the ld. Judicial Magistrate taking up Bengal File issued notice upon the informant. But, before such notice was served upon the informant or the informant could come before the ld. Magistrate, one Chandra Adhikary, wife of the victim, Biswanath Adhikary filed an application before the Magistrate praying for further investigation of the case as she came to learn that police had submitted a final report. The said application of Smt. Adhikary came up for consideration before the court and the Magistrate on 4.8.2000 passed the following orders which runs as – "Today is fixed for hearing. S.R. of notice not yet received. Heard both sides. Perused and considered. The de facto complainant has not appeared. The petitioner is the wife of the deceased. She filed the instant petition of the case. This is a case under section 302. She was not examined by the I.O. The ld. A.P.P. submits that there are good grounds regarding an order for re-investigation. The prayer is accordingly allowed. Let the cases be re-investigated again by the C.I.D., West Bengal. Sent the copy of this order and the C.D. to the D.I.G., C.I.D. for getting the case re-investigated. To 18.12.2000 for report." 3. This has aggrieved the informant that is de facto complainant and who has come up before this court with this prayer for setting aside the impugned order. The purpose of lodging a First Information Report under section 154 of the Code of Criminal Procedure is to set the law into motion, to get an offence investigated and to bring the offenders to book. Therefore, the purpose for which the de facto complainant lodged the F.I.R. on 29.1.99 is for securing a thorough investigation and for brining the culprit to book. Therefore, the purpose for which the de facto complainant lodged the F.I.R. on 29.1.99 is for securing a thorough investigation and for brining the culprit to book. This is a peculiar case when the de facto complainant himself is challenging the order of the Magistrate for further investigation. 4. Mr. Dilip Kr. Dutta, ld. advocate appearing for the petitioner has contended that there is no provision for re-investigation as has been directed by the Magistrate. On perusal of the prayer of Smt. Adhikary, I find that all that she had prayed before the ld. Magistrate was for further investigation. Therefore, she did not pray for any re-investigation. The Magistrate, it is apparent, has committed a simple mistake by using the word 're-investigation'. He intended to mean further investigation which is permissible under section 178 of the Code of Criminal Procedure. 5. Mr. Dutta next contended that the wife of the victim has no locus standi to make any prayer for further investigation. To counteract this submission, Sri Pradip Kr. Ghosh, ld. advocate appearing for the wife of the victim has drawn my attention to a decision of the Supreme Court reported in A.I.R. 1985, Supreme Court, 1285 where the Supreme Court has specifically observed that a relative of the deceased may not be strictly entitled, but such person can appear before the Magistrate and make his submission when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The Supreme Court observed that the injured person or any relative of the deceased, though not entitled to notice from the Magistrate has locus to appear before the Magistrate at the time of consideration of the report. 6. Mr. Dutta further contends that Magistrate cannot make such order before the de facto complainant is heard. But, in this judgment, the Supreme Court observed that the de facto complainant is entitled to a hearing only when the Magistrate is not inclined to take cognizance of the offence and issue process. The Supreme Court observed that when the Magistrate is going to accept a final report, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. 7. The Supreme Court observed that when the Magistrate is going to accept a final report, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. 7. Therefore, in the instant case, the stage for accepting the final report or taking up of cognizance has not arrived and, therefore, the question of hearing the de facto complainant is premature. In this case only, the police submitted a final report and the Magistrate had issued notice upon the de facto complainant to make his submission before the matter is finally disposed of. 8. Wife of the victim has approached the Magistrate with a prayer for further investigation when she came to know that the police had submitted a final report. We should not ignore the agony of the wife who lost her husband all on a sudden. Since the wife is a citizen she has every right to see that the person who had killed her husband should be dealt with in accordance with law. It is apparent that with such mind she had approached the Magistrate'-When the petition came up for hearing before the Magistrate, the ld. A.P.P., most probably on persual of the C.D. submitted before the Magistrate that there is scope for further investigation as the wife of the victim, that is, Smt. Chandra Adhikary was not examined. The fact that the wife of the victim was not examined is a ground for further investigation. I do not know why the de facto complainant is being aggrieved by the impugned order by which the ld. Magistrate simply directed for further investigation. Mr. Dutta, contended that the Magistrate was wrong in directing the Detective Department for further investigation because according to him investigation cannot be conducted by a different agency. Now, the Detective Department cannot be treated as separate from the police, it is only a police department equipped with improved machineries. Therefore, there is nothing wrong in the order of the Magistrate for directing further investigation by D.D. 9. Mr. Dutta has drawn my attention to a decision of the Supreme Court reported in 1998 S.C.C. (Crl.) 4185 wherein the Supreme Court observed that the Court can direct further investigation if it is found that the opinion of the I.O. is not based on full and complete investigation. Mr. Dutta has drawn my attention to a decision of the Supreme Court reported in 1998 S.C.C. (Crl.) 4185 wherein the Supreme Court observed that the Court can direct further investigation if it is found that the opinion of the I.O. is not based on full and complete investigation. Here is a case as I find from the submission of A.P.P. before the Magistrate that there is room for further investigation which shows that the investigation was not properly conducted by the I.O. and the opinion of the I.O. is not based on the materials. 10. Mr. S. Moitra ld. A.P.P. who has come before this court to represent the case of the prosecution has adopted the argument advanced by P.K. Ghosh and has submitted further that there is room for further investigation and he has made such submission from side of the prosecution and he further submits that for the interest of prosecution, the case requires to be investigated further. In that case, I feel that when the State, who is the custodian of law and who protects the life and liberty of the citizen, is interested in getting the matter further investigated, I think it should be investigated further as has been directed by the ld. Judicial Magistrate. 11. There seems no reason for de facto complainant's apprehension for further investigation of the case because de facto complainant must have wanted a full and thorough investigation of the case and not the investigation to be conducted in a perfunctory and half-hearted manner. In view of the above, I do not find anything wrong in the impugned order calling for interference of this court. So, the instant petition is rejected and all interim orders are vacated. Application rejected.