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Calcutta High Court · body

2001 DIGILAW 41 (CAL)

Keshab Ch. Gupta v. Shyamali Dutta

2001-01-31

Amit Talukdar

body2001
JUDGMENT AMIT TALUKDAR, J. 1. This application is directed against an order dated 27.12.1996 passed by the learned Judicial Magistrate, 4th Court, Serampore in C.R. Case No. 576 of 1996. 2. The petitioner herein had filed an application under section 156(3) of the Code of Criminal Procedure before the court of the learned sub-Divisional Judicial Magistrate, Serampore. It was registered as C.R. 576 of 1996. The learned Judicial Magistrate, 4th Court, Serampore, who was in charge of the file of the learned Sub-Divisional Judicial Magistrate on the said date, by a laconic order refused to send the matter for investigation under section 156(3) of the Code of Criminal Procedure for treating it as First Information Report and causing investigation and immediately thereafter transferred the case to his own file. Later on the learned Magistrate after examining the complainant and on perusal of the petition of complaint and initial ezahar found that no prima facie case was made out as the dispute was purely civil in nature and as such dismissed the same under section 203 of the Code of Criminal Procedure. 3. The learned lawyer appearing on behalf of the petitioner submits that the opposite party had cheated the petitioner by virtue of her being a close relation and the allegation preferred by him required investigation by the police and the learned Magistrate was wrong firstly refusing his prayer for police investigation under section 156(3) of the Code and thereafter the same learned Magistrate mechanically dismissed the petition of complaint as he found it was civil in nature although there were sufficient allegations in the petition filed on behalf of the petitioner. 4. The learned lawyer appearing for the opposite party no.1 submits that this is a dispute between brother-in-law and sister-in-law and part payment has already been made and it is purely a civil dispute arising out of a partnership document and he has supported the impugned order passed by the learned Magistrate and has submitted that the learned Magistrate has rightly dismissed the prayer made on behalf of the petitioner as he has his remedy in the civil court. 5. 5. The learned lawyer appearing for the opposite party further submitted that since this is civil dispute, the petitioner was entirely wrong in invoking the jurisdiction of the learned Magistrate as no case under sections 406 and 420 of the Indian Penal Code could be made out against the opposite party no. 1. He has further submitted that as allegations are civil in nature, further continuance of the present proceeding would have been an abuse of process of law and the learned Magistrate has rightly refused to do so. This court in exercise of its jurisdiction under section 401 read with section 482 of the Code of Criminal Procedure should not interfere with the same. 6. The learned lawyer appearing for the State adopts the submissions made on behalf of the petitioner. 7. Having heard the submissions made on behalf of the learned lawyers appearing on behalf of the parties and on perusal of the materials on record including the petition filed under section 156(3), I am of the view that the impugned order passed by the learned Magistrate is not liable to be sustained. I am extremely astonished to find that the learned Magistrate by a single word disposed of the application preferred under section 156(3) of the Code made on behalf of the petitioner without whatsoever adverting to the materials incorporated in the said petition. The provision of section 156(3) of the Code of Criminal Procedure is a plenary power for reminding the police authority to do its mandatory duty of investigation. Those far and no further. 8. The learned Magistrate in this case I find failed to give up to the expectation of the provision of section 156(3) of the Code as the ingredients of the offence in my view, of sections 406/420 of the Indian Penal Code have been very clearly made out in the four corners of the petition filed on behalf of the petitioner. Descriptive details of the offence have been mentioned in the petition which, this court fails to understand as to how it escaped the notice of the learned Magistrate for directing an investigation under section 156(3) of the Code of Criminal Procedure. Descriptive details of the offence have been mentioned in the petition which, this court fails to understand as to how it escaped the notice of the learned Magistrate for directing an investigation under section 156(3) of the Code of Criminal Procedure. That apart, this court finds it equally surprising as to how that immediately after the same learned Magistrate refusing the order for proceeding under section 156(3) of the Code of Criminal Procedure, transferred the case to his own file and immediately thereafter dismissed the petition of complaint by coming to a finding that the dispute is purely of a civil in nature and the petitioner has a remedy in a different forum. 9. A plain reading of the petition filed under section 156(3) of the Code as has been discussed hereinabove, fully discloses ingredients of the offences under sections 406 and 420 of the Indian Penal Code and there are sufficient materials .in my view to warrant initiation of a proceeding and the learned Magistrate was completely in an error of law in mechanically first dismissing the prayer for investigation under section 156(3) of the Code and thereafter dismissing the petition of complaint under section 203 of the Code of Criminal Procedure without recording any proper. 10. One illegality after another and this court at this stage finds no other alternative but to set aside both the orders complained of. I further direct that the case no. C.R. 576 of 1996 is switched back to the position where it was on 27.12.1996 when the petition under section 156(3) of the Code of Criminal Procedure was filed on behalf of the aforesaid petitioner and the learned Sub-Divisional Judicial Magistrate, Serampore should consider the same afresh in accordance with law in the light of the observations made hereinbefore as this court is of the opinion that police investigation is necessary in this case to unearth the allegations. 11. The revisional application is accordingly, allowed. There will be no order as to costs. 12. Urgent xerox certified copy of this order be supplied on priority basis. 13. Prayer for stay of operation of this order made on behalf of the party no.1 is considered and refused. Revisional application allowed.