Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 448 (CAL)

SANTOSH BHATTACHARJEE v. STATE OF WEST BENGAL

2001-07-26

P.K.BISWAS

body2001
P. K. BISWAS, J. ( 1 ) THIS revisional application is for quashing the proceeding being G. R. Case No. 1536/95 under section 143/342 of the Indian Penal Code pending before the learned Sub-Divisional Judicial Magistrate. Barrackpore arising out of Dum Dum Police Station case No. 153, dated 17. 5. 1995 under section 143/432 of Indian Penal Code. ( 2 ) ONE Mr. R. K. Banerjee, District Engineer, Northern District of CESC, filed one written information before the Officer-in-Charge, Dum Dum Police Station alleging commission of offence under sections 143/342 of Indian Penal Code and on receipt of the same, Dum Dum Police Station started the P. S. Case No. 153 dated 17. 5. 1995 under section 143/342 and subsequently after completion of investigation, charge-sheet was submitted before the learned Sub-Divisional Judicial Magistrate at Barrackpore when by his order dated 4. 9. 98, the learned Sub-Divisional Judicial Magistrate, Barrackpore took cognizance and issued W. P. A. against the accused persons of the concerned case including the present revisionist before us. ( 3 ) IN the instano application, the objection has been taken by the revisionist that on 4. 9. 95. the learned Sub-Divisional Judicial Magistrate, Barrackpore mechanically took cognizance relying only on charge-sheet without considering other documents or relevant extracts and statements as contemplated in section 173 (5) of the Code of Criminal Procedure and issued warrant of proclamation and attachment against the petitioner and others fixing 7. 6. 96 for ER further, it has been contended in the petition that the learned Sub-Divisional Judicial Magistrate, Barrackpore failed to record his satisfaction to ascertain as to whether there are sufficient materials against the petitioner and others for committing offence under sections 143/342 of the Indian Penal Code at the time of taking cognizance. It has further been contended that the taking of cognizance by the learned Magistrate is not in accordance with law, and, therefore, the subsequent proceeding has become void and further continuation of the aforesaid proceeding is certainly a gross abuse of the process of law. It has further been contended that the taking of cognizance by the learned Magistrate is not in accordance with law, and, therefore, the subsequent proceeding has become void and further continuation of the aforesaid proceeding is certainly a gross abuse of the process of law. ( 4 ) WHILE arguing this case before us, the learned Advocate appearing for the petitioner, in addition to the ground taken in the petition itself, has taken a new ground alleging that the information lodged with the police station which was treated as FIR in this case shows that the earlier telephonic information was given over this matter and Dum Dum police on receipt of the same, rescued the victim, Sri Ganesh Mukherjee, Sr. Grade Inspector of Northern District and as such the FIR accepted in this case by the police as also by the Court is hit by provisions of section 162 of the Criminal Procedure Code. ( 5 ) PLACING their reliance on a decision reported in AIR 1967 Calcutta, page 478, it has been submitted on behalf of the petitioner that it is a matter of law whether an information is the first information or not, and it is not open to the officer-in-charge of the Police Station to treat an information as such or not, according to his discretion. There is not provision in the Criminal Procedure Code for any preliminary enquiry prior to the investigation or prior to the lodging of the information within the meaning of section 154 of the Criminal Procedure Code, if, circumstances indicate that after receiving some information, however incomplete, the police officer has commenced investigation any subsequent information given to him about the commission of the offence by any other person cannot be regarded as First Information Report in the case and would not be admissible under section 154 of the Criminal Procedure Code read with section 157 of the Evidence Act, being hit by section 162 of the Criminal Procedure Code. ( 6 ) IT has been further submitted on behalf of the petitioner that in the instant case it is also quite apparant that on receipt of telephonic information about the commission of offence, Police already initiated action and rescued the victim and, therefore, some sort of investigation has been made by the police in this case on receipt of the telephonic information and as such the subsequent written information over the self-same offence will be clearly hit by the section 162 of the Criminal Procedure Code. ( 7 ) IT has, therefore, been submitted on behalf of the petitioner that on both the grounds, the present proceeding cannot be allowed to be continued and it would be only gross abuse of the process of law. Hence, they pray for quashing of the present proceeding. ( 8 ) THE learned Additional P. P. while opposing the claim of the petitioner has submitted before me the inherent jurisdiction of the High Court under section 482 of the Criminal Procedure Code can be exercized to quash the proceding, either to prevent the abuse of the process of any Court or other- wise to secure the ends of justice. He has further submitted that it is also a well settled law that ordinarily criminal proceeding instituted against the accused persons should be tried and the High Court would be slow and reluctant to interfere with the proceeding at the interlocutory stage. As regards the objection regarding taking of cognizance by the learned Magistrate, it has been submitted by Sri Moitra, learned Additional p. p. that section 190 of the Criminal Procedure Code empowers the Magistrate for taking cognizance of an offence and not to deal with offenders. The offenders may or may not be known or named when complaint is made and taken cognizance of as their names may transpire during investigation or afterwards. He has further submitted that in the instant case upon a police report as contemplated under section 173 (2) of Criminal Procedure Code, setting out facts, constituting offence, the learned Magistrate has taken cognizance under section 191 (b) of the Criminal Procedure Code and case becomes one instituted in the Magistrate's Court on a police report. And for taking cognizance, the Magistrate need not write any speaking order. And for taking cognizance, the Magistrate need not write any speaking order. So, it has been submitted that in the instant case, absolutely there is no reason for holding that the cognizance taken in this case was bad in law and there is also no materials whatsoever to hold that the continuation of the subsequent proceeding of this case was mere abuse of the process of law. ( 9 ) LOOKING into the materials with meticulous care, I also find that there is much force in his argument and accordingly, I hold that there is absolutely no reason to hold that the cognizance taken in this case is bad in law and the continuance of the subsequent proceeding of this case was a mere abuse of the process of law. ( 10 ) NOW, turning to the second phase of the argument, I find that the petitioner has claimed that the FIR of this case is hit by section 162 of the Criminal Procedure Code alleging that there was prior information over the self-same incident with the police. With regard to the above matter, it has been contended on behalf of the opposite party/state that this point was not taken by the petitioner earlier in his application and as such it would be difficult for the state to meet this point and according to Mr. Moitra for deciding this issue some evidence has to be taken to assess whether really such information was received at the Police Station or not earlier by calling for the G. D. etc. ( 11 ) TRUE it is that even if the aforesaid ground was not taken by the petitioner in his application, yet, they are authorized to take such plea when it concerns with only law point. But being in agreement, with the views expressed by the learned Additional p. p. , I think that this issue as to whether the FIR was hit by the section 162 of the Criminal Procedure Code or not cannot be gone into at this stage merely as a legal point and it has to be decided on evidence being a mixed questions of law and facts. So, on this point also, I find no justification in quashing the present proceeding at this stage as claimed by the petitioner. So, on this point also, I find no justification in quashing the present proceeding at this stage as claimed by the petitioner. ( 12 ) NOW, upon consideration of all the facts and circumstances, and in view of my findings in the preceding paragraphs, I find no merit in the revisional application and the case cited above by the petitioner does not come to any aid to the petitioner in the instant case. In the result, I find no merit in the revisional application and the same, is therefore, rejected. Application rejected