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2002 DIGILAW 716 (CAL)

Nasir Akhan v. State of West Bengal

2002-12-03

Malay Kumar Basu

body2002
Judgment Malay Kumar Basu, J. This revisional application is directed against the Baruipur P.S. Case No. 242 dt. 10th August, 1995 under sections 363 and 366 of the I.P.C. The case of the petitioner is that on 29th January, 1995 one Sarif Noor Islam lodged a complaint before the Baruipur Police Station being G.D. No. 1503/95 and in consequence thereof Nasiruddin Akhan, the petitioner No.1 was arrested as an accused and was forwarded before the Court of S.D.J.M. where he was granted bail. Thereafter, the Investigating Police Officer carried on investigation into the allegations and submitted a final report before the ld. S.D.J.M. who accepted the same and passed an order discharging the said accused (petitioner No.1) on 23rd March, 1995. But the said complainant subsequently lodged another complaint on the self-same allegations before the O.C. Baruipur Police Station and on the basis of that complaint Baruipur P.S. Case No. 242 dt. 10.8.1995 under sections 363 and 366 of the IPC was started in connection with that case the Investigating Police Officer made a prayer before the Court of Magistrate for a search warrant against the accused-petitioner No.1 and the ld. Magistrate allowed the prayer under section 41 of the Cr. P.C. and the petitioner was directed to be produced. However the petitioner obtained an order of anticipatory bail from the Court of ld. Sessions Judge. The petitioner has preferred this revisional application on the ground that filing of a second complaint on the self-same facts is an abuse of the process of Court and is illegal and cannot be tenable and the Police Officer is debarred under the law from starting a fresh investigation, when once there was an investigation before hand into the very same allegations and the police submitted final report which was accepted by the Court and no Naraji Petition was filed against that final report by the de facto-complainant and the accused was discharged. Hence this revisional application for quashing the said police case being Baruipur P.S. Case No. 242 dt. 10.8.1995 under sections 363 and 366 of the I.P.C. otherwise the petitioner will be subjected to double jeopardy. 2. Mr. Alquadri, ld. Hence this revisional application for quashing the said police case being Baruipur P.S. Case No. 242 dt. 10.8.1995 under sections 363 and 366 of the I.P.C. otherwise the petitioner will be subjected to double jeopardy. 2. Mr. Alquadri, ld. Advocate, appearing on behalf of the O.P.-State has argued that since it was a case of discharge of the accused and not acquittal, there is no legal bar in proceeding against him afresh and holding investigation on the second complaint particularly when the final report submitted by the police at the first instance was of suspicious nature. 3. Mr. Rahaman, the ld. Advocate, for the petitioners has relied upon a recent decision of the Apex Court reported in AIR 2001 SC 2637 . In this judgment their Lordships have held as follows : "Apart form a vague information by a phone call or cryptic telegram; the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report-F.I.R. postulated by section 154 of Cr. P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 of Cr. P.C. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P.C. The scheme of the Cr. P.C. is that an officer in charge of a Police Station has to commence investigation as provided in section 156 or 157 of Cr. P.C. on the basis of entry of the First Information Report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under section 169 or 170 of Cr. P.C., as the case may be, and forward his report to the concerned Magistrate under section 173(2) of Cr. On completion of investigation and on the basis of evidence collected he has to form opinion under section 169 or 170 of Cr. P.C., as the case may be, and forward his report to the concerned Magistrate under section 173(2) of Cr. P.C. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of subsection (8) of section 173, Cr. P.C. Under the scheme of the provisions of sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr. P.C. only the earlier or the first information in regard to the commission of a cognizable offence satisfied the requirements of section 154 Cr. P.C. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequently information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offence. On receipt of information about a cognizable offence or incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer-in-charge of a police station has to investigate not merely the cognizable offence report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in section 173 of the Cr. P.C. Ram Lal vs. State, 1979(2) SCC 322 , Disting and Expln. (Paras 18, 19). If the gravemen of the charges in the two FIRs-the first and the second-is in substance and truth the same, registering the second FIR and making fresh investigation and forwarding report under section 173 Cr. P.C. will be irregular and Court cannot take cognizance of the same. Their Lordships further observed in this ruling that a just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. P.C. will be irregular and Court cannot take cognizance of the same. Their Lordships further observed in this ruling that a just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of section 173 Cr. P.C. empowers the police to make further investigation obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under section 173(2) Cr. P.C. It would clearly be beyond the purview of sections 154 and 156 Cr. P.C. may, a case of abuse of the statutory power of investigation in a given case." 4. In the present case what has happened is that a missing Diary being G.D. entry No. 1565 dt. 28.1.1995 was made on the basis of verbal information given by the father of the girl who was found missing and on the basis of that the police made enquiries and searches and recovered the girl from the custody of the accused person. After that the Investigating Police Officer without submitting any report in final form as required under section 173(2)(i), clauses (a) to (g) filed a petition dt., before the ld. Magistrate stating that the girl Nurnehan Khatoon went to the house of the accused and took shelter there on her own as she had been beaten by her parents and the informant, Saif Nur Islam tried to take her away therefrom, but she refused and in such circumstances finding no other alternative he lodged the Diary. The I.O. has further stated that during his inquiry he could ascertain that the local Panchayat and the respectable persons intervened and settled the matter and there was no more any tension or disturbance and both the families were residing side by side peacefully and under the circumstances no material evidence could be collected against the accused persons and hence he made a prayer before that Court for an order discharging the accused and filing the case. 5. Such a petition of the I.O. has no legal basis. Sections 156 to 173 of the Cr. P.C. spell out the procedure which an Investigating Police Officer is to follow in the matter of holding investigation into a cognizable offence. There is no scope for him to effect settlement between the parties and pray for an order of discharge of the accused persons in such a serious offence of kidnapping of a young girl from the lawful custody of her parents and that too the I.O. cannot do it without informing the de facto-complainant. Moreover, the I.O. does not appear to have produced any scrap of paper like the 161 statements or the like in support of his claim that there has been any such amicable settlement between the parties through the intervention of the Panchayat members as alleged. Curiously, the I.O. could not remain satisfied by filing such a petition once, i.e., on 16.3.1995. While that petition was pending for order of the Court, he appears to have filed another identical application again on 22.3.1995. On neither occasion he informed the informant, the father of the victim girl, by serving a copy of such application or otherwise. Such overzeal on the part of the I.O. for getting the accused of such a heinous offence discharged raises grave suspicion about his honesty. 6. What is more surprising, in the present revisional application the petitioners (who are the accused persons in the concerned criminal case) have stated (vide paragraph 2 of the petition) that the ld. Magistrate passed an order on 23.3.1995 discharging the petitioner No.1-accused in view of a prayer made by the I.O. But on a careful examination of the order-sheets of the Court below no such order is noticed. It appears that on 16.3.1995 the report of the I.O. was placed before the ld. Magistrate, but since the I.O. was not present, he shifted the date to 20.4.1995 for personal appearance of the I.O. and orders. But on that date also and on successive three dates the I.O. was not present and on 3.6.1995 the ld. Magistrate passed an order expressing his annoyance over the conduct of the I.O. who having filed a prayer for discharge of the accused by his petition dt.22.3.1995 violated the procedural law and for his "lackadaisical attitude" the investigation was suffering. He (ld. Magistrate passed an order expressing his annoyance over the conduct of the I.O. who having filed a prayer for discharge of the accused by his petition dt.22.3.1995 violated the procedural law and for his "lackadaisical attitude" the investigation was suffering. He (ld. Magistrate) directed the O.C. Baruipur P.S. to cause the investigation of the case to be done by another officer than this I.O. and fixed 15.6.1995 for appearance of that new I.O. before him. Since then dates were being fixed for personal appearance of that I.O. with the C.D. Subsequently on 8.4.1996 the I.O. made a prayer for recording of the statement of the victim girl under section 164 Cr. P.C. In this way, the investigation of the case was going on. The contention of petitioners is totally false that the accused (petitioner No.1) was discharged by an order of the Magistrate dt.23.3.1995 or that any final report was accepted by the Court. While the investigation of the case was in progress, the father of the victim girl filed a complaint. There is thus no reason for saying that there have been two sets of investigation or that once an investigation having been completed and the final report having been accepted or the accused having been discharged a fresh investigation has been taken up again. No such things have been done here. Neither the investigation was ever completed, nor any FIR was submitted, nor any accused has been discharged. What was submitted at one point of time was a prayer of the I.O. for discharge of the accused on the ground that there has been an amicable settlement of the disputes through the intervention of the Panchayat Members and the accused might be discharged. But, as I have pointed out above, the I.O. has no scope for making any such prayer or submit any such report in such a cognizable offence under the relevant provisions of the Cr. P.C. The ld. Magistrate also took exception to such prayer and gave strictures. 7. The question of quashing the proceeding as prayed for by the petitioners does not arise at all. Investigation of the case was continuing. In its midst, the father of the victim girl filed a written complaint before the police. It should be noted that the G.D. Entry is not, strictly speaking, a complaint. It does not bear any signature of the complainant. Investigation of the case was continuing. In its midst, the father of the victim girl filed a written complaint before the police. It should be noted that the G.D. Entry is not, strictly speaking, a complaint. It does not bear any signature of the complainant. Moreover, it will be wrong to say that in the present case the contents of the G.D. Entry and the allegations levelled in the subsequently filed, complaint are the same. In the latter there is the allegation of a more serious offence, viz., allegation that rape was committed on the girl. Even if for the sake of argument, it is assumed that it is to be treated as the real FIR in point of time, even then the complaint which has been filed by the informant will be, at the most, treated as a statement under section 161 Cr. P.C. 8. Since there was no final report or no order of discharge, the contention of the petitioner that the informant's remedy lay in filing a Naraji Petition has no legs to stand upon. There is no question of the accused persons' suffering double jeopardy since one and the same investigation has been continuing and the contention that the investigation was once over and due to the filing of the subsequent complaint it has been started again for the second time is totally wrong. The ruling of the Apex Court referred to by Mr. Rahaman, ld. Advocate for the petitioners, will have no application to this case since the facts and circumstances are altogether different and the conditions under which such a proceeding is to be quashed are conspicuous by their absence. 9. In view of the foregoing discussion I am constrained to hold that there is no merit in the revision petition and the same be dismissed. Learned Magistrate shall direct the I.O. of the case to file report in final form by a date to be specified by him. 10. A copy of this judgment be sent to the S.P. concerned for contemplating appropriate action against the Investigating Officer at fault as indicated in the body of the judgment. 11. Interim order, if any be vacated. 12. Xerox certified copies, if applied for by any party, may be supplied without delay. Revision petition dismissed.