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2001 DIGILAW 424 (CAL)

Sankar Birjuka v. State of West Bengal

2001-07-13

Debiprasad Sengupta

body2001
JUDGMENT Debiprasad Sengupta, J.: This is an application for quashing of an investigational proceeding being Sreerampore P.S. Case No. 407 dated 14.12.98 under sections 468/471/420/120B of the Indian Penal Code, subsequently numbered as G.R.No. 1117/98. The petitioner has also challenged an order dated 20.4.2001 passed by the ld. Sub-Divisional Judicial Magistrate, Sreerampore. The aforesaid case was registered on the basis of a complaint lodged by one Inder Dan Charan against the present petitioner and two others alleging commission of offences under the aforesaid sections. 2. At the very outset when the matter was taken up for hearing, Mr. Sudipto Moitra, ld. Additional Public Prosecutor draws the attention of the court to a letter dated 2.5.2001 issued by one Nilesh Chowdhury, Advocate of this court, from which it appears that there is a wrong communication of the order of this court. The said letter is addressed to Mr. Pulin Behari Das, Advocate/Arbitrator of 9, Old Post Office Street, Calcutta-1 and in the said letter it was intimated to the ld. Advocate/Arbitrator that the present revisional application was moved in this court on 2.5.2001, which is not at all correct. The present revisional application was moved in this court on 9.5.2001. Mr. Moitra submits that such wrong communication was made to the learned Advocate/Arbitrator, who accepted the same as true and correct and started acting on such communication. When such fact was brought to the notice of the court, Mr. Sekhar Basu along with his ld. junior Mr. Joymalya Bagchi, in their usual fairness, submitted that they want to retire from this case. The ld. Advocate on recorded Smt. Archana Chowdhury, when she was asked about such communication expressed her inability to identify an Advocate named Nilesh Chowdhury, who made such communication. In such circumstances the revisional application is taken up for disposal. N one appears in support of this application. Mr. Sudipto Moitra finished his argument any judgement was kept reserved. 3. On a perusal of the revisional application it appears that the present case is still at the stage of the investigation. The main allegation in the FIR is that the hire purchase agreement and Arbitration agreement have been manufactured and forged by the accused persons. The accused persons entered into a conspiracy and manufactured the documents with forged signature and placed those documents before the Arbitrator to realise fictitious claims by way of cheating. The main allegation in the FIR is that the hire purchase agreement and Arbitration agreement have been manufactured and forged by the accused persons. The accused persons entered into a conspiracy and manufactured the documents with forged signature and placed those documents before the Arbitrator to realise fictitious claims by way of cheating. The main contention of the accused petitioner, as it appears from the revisional application, is that the issue as to whether the documents in question, namely the hire purchase agreement and the agreement of arbitration by and between the parties are forged or not, is the subject matter of the arbitration proceeding pending before the Arbitrator who is adjudicating the same and is in possession of those documents. It is the contention of the petitioner that when the allegation is for an offence of forgery of some documents, which is being adjudicated upon by an appropriate civil forum, the present investigation should not be allowed to continue and the same is liable to be quashed. 4. Mr. Sudipto Moitra, ld. Additional Public Prosecutor appearing for the State submits that the present case is still at the stage of investigation and the allegations made in the FIR clearly make out an offence, which is sufficient for the purpose of proceeding further in the matter. At this stage of investigation, according to Mr. Moitra, this court in exercise of its power under section 482 of the Code of Criminal Procedure should not quash the investigational proceeding. 5. I have perused the revisional application as also other documents which are annexed to the revisional application. I have also heard the submissions made by the ld. Additional Public Prosecutor. On a perusal of the F.I.R. I find a prima facie case is made out which is sufficient for the purpose of proceeding further with the investigation. Number of documents have been annexed to this application in support of the contention of the petitioner. But in my considered view it will not be proper for this court to take into consideration those documents at this stage. The points which have been raised by the petitioner in the present application are all question of facts and those can only be decided at the stage of trial after taking evidence. In my opinion this is not a fit case for quashing. 6. The points which have been raised by the petitioner in the present application are all question of facts and those can only be decided at the stage of trial after taking evidence. In my opinion this is not a fit case for quashing. 6. From the order dated 20.4.2001 it appears that on a prayer made by the investigating officer for seizing certain documents which are lying in the custody of Sri Pulin Behari Das, learned Advocate/Arbitrator, such prayer was allowed by the learned Magistrate. I have gone through the impugned order dated 20.4.2001. The prayer made by the investigating officer for seizing those documents from the custody of the Arbitrator, does not contain any list of documents. No particular of documents which is necessary for investigation has been given in the petition made by the I.O. The ld. Magistrate also with any application of mind mechanically allowed such prayer of the I.O. The ld. Magistrate even did not make any attempt to ascertain what are the documents which are required by the I.O. for the purpose of investigation. From the impugned order it becomes clear that it is neither an order under section 91 Cr. P.C nor it is an order under section 93 Cr. P.C. Neither in the petition filed by the I.O. nor in the order dated 20.4.2001 passed by the ld. Magistrate, there is not even a slightest indication about the documents which are required for investigation. This is a case of total non-application of mind by the learned Magistrate. Without knowing about the particulars of the documents he mechanically allowed the prayer of the I.O. In my considered view the order dated 20.4.2001 suffers from serious illegality. Accordingly I set aside the order dated 20.4.2001 passed by the learned S.D.J.M, Sreerampore. But I make it clear that this order shall not stand in the way of the investigating agency to make a fresh application under the appropriate provision of the Code before the learned Magistrate. If any such prayer is made by the investigating agency the learned Magistrate shall dispose of the same in accordance with law with utmost expedition. The present revisional application is accordingly disposed of. Revisional application disposed of.