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2002 DIGILAW 186 (CAL)

Arvind Agarwal v. State of West Bengal

2002-03-15

Sujit Barman Roy

body2002
JUDGMENT Sujit Barman Roy, J.: Heard the learned Counsel for the petitioner. None is available for the State Of course an adjournment was prayed for on behalf of the complainant/opposite-party. However, I reject such prayer for adjournment as the case is pending in this court at motion stage since long. 2. By the petitioner the petitioners have challenged certain direction issued by the learned Chief Metropolitan Magistrate, Calcutta, in Misc. Case No. C-4783 of 2001 directing the D.C., Lalbazar, to investigate the complaint of the complainant-opposite party under section 156(3) of the Code of Criminal Procedure treating the said complaint as an F.I.R. and to submit compliance report. 3. The case, in short, is that the opposite-party complainant, Dr. Om Prakash Jaiswal, lodged the aforesaid complaint before the Chief Metropolitan Magistrate. Calcutta, praying, inter alia, that this complaint be forwarded to the police for investigation. As per the said complaint the petitioners had committed offence under sections 120-B/409, I.P.C. The learned Magistrate instead of taking cognizance in the matter passed an order under sub-section(3) of section 156 of the Code directing the Deputy Commissioner, Detective Department, Lalbazar, Calcutta, to investigate the complaint of the complainant treating the same as an F.I.R. and to submit compliance report. 4. The contention of the petitioners, in brief, is that under sub-section (1) of section 156 of the Code any officer-in-charge of a police station may, without order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limit of such station would have power to enquire into or try under the provisions of Chapter XIII of the Code. Now sub-section (3) thereof further provides that any Magistrate empowered under section 190 may order an investigation as mentioned above. Therefore, sub-section (3) refers to investigation by an officer-in-charge of the police station as contemplated under sub-section (3) of section 156 of the Code. By the words "such an investigation" occurring in sub-section (3) of section 156 what sub-section (3) of the Code has referred to is as a matter of act for investigation by the officer-in-charge of the police station or any officer under him to whom the officer-in-charge of the same may make over or endorse the case for investigation. By the words "such an investigation" occurring in sub-section (3) of section 156 what sub-section (3) of the Code has referred to is as a matter of act for investigation by the officer-in-charge of the police station or any officer under him to whom the officer-in-charge of the same may make over or endorse the case for investigation. This being the position, learned Counsel for the petitioners contended that the Magistrate has no power to refer the complaint for investigation to any officer superior in rank to the officer-in-charge of a police station to investigate the complaint. It is true that the aforesaid contention of the learned counsel for the petitioners is supported by a decision of the Apex Court in C.B.I. vs. State of Rajasthan, 2000(1) C.Cr.L.R.(S.C.) 116. In that case Supreme Court held that any police officer, who is superior in rank to officer-in-charge of a police station, can exercise the same powers of the officer-in-charge of a police station and when he so exercises the power he would do it in his capacity as officer-in-charge of the police station. But when a Magistrate orders for investigation under section 156(3), he can only direct an officer-in-charge of the police station to conduct such investigation and not a superior police officer though such officer can exercise such powers by virtue of section 36 of the Code. Section 36 of the Code is not meant to substitute the magisterial power envisaged in section 156(3) of the Code. 5. That being the position of law as settled by the Apex Court, I have no option but to follow the same and accordingly the order dated 19.9.2001 passed by the learned Magistrate on .the complaint itself directing the D.C., D.D., Lalbazar, to investigate the complaint of the complainant/opposite-party treating his complaint as an F.I.R. is quashed. I further quash the investigation, if any, already conducted by the D.C., D.D. or any police officer working under him. The said complaint should be returned to the learned Chief Metropolitan Magistrate by the D.C., D.D., Lalbazar, whereupon the learned Magistrate shall apply his mind afresh and may himself take cognizance of the case or in the alternative he may direct the officer-in-charge of the concerned police station to investigate the complaint in accordance with sub-section (3) of section 156 of the Code. 6. With the aforesaid directions, this petition is disposed of. 7. 6. With the aforesaid directions, this petition is disposed of. 7. Let urgent xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible. Appeal disposed of with direction.