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2003 DIGILAW 331 (CAL)

Ushnanada Jana v. Subrata Roy

2003-07-09

S.P.TALUKDAR

body2003
JUDGMENT S.P. Talukdar, J. 1. The present case relates to an application under section 401 read with section 482 of the Code of Criminal Procedure. 2. It is directed against the order dated 18th March, 2002 passed by the learned Sub-divisional Judicial Magistrate, Hooghly Sadar in G.R. Case No.778 of 2001 arising out of Chinsurah P.S. Case No. 199 dated 24th Augush, 2001 under section 323/332/353/506/34 of the Indian Penal Code. 3. Grievances of the petitioner may briefly be stated as follows:- 4. The petitioner is an Inspector of Drugs, Government of West Bengal Opposite Parties No.1 to 4 are his office colleagues. As per instruction of O.P. No.1, the petitioner on 16.10.2000 at about 4.25 p.m. in presence of all accused persons started interviewing one pharmacist in the chamber of the O.P. No.1. The petitioner found that the person so interviewed was not duly qualified so as to entitle him to get a licence under the Drugs and Cosmetics Act, 1940 and the petitioner recorded his reasons to that effect. The petitioner thereafter submitted such report to O.P. No.1 who along with O.P. Nos.2, 3 & 4 started making illegal demands by using criminal force and wanted the petitioner to change the report. The petitioner refused to oblige. The O.P.’s No.1 to 4 became furious and started abusing the petitioner in filthy language and threatened him with dire consequences. The petitioner on the following day brought this to the notice of the higher authorities and on 18.10.2000 he lodged a written complaint to the Office-in-Charge, Chinsurah Police Station. In view of total inaction on the part of the Police Authority, the petitioner on 16.6.2001 lodged a written complaint before the learned Chief Judicial Magistrate, Hooghly at Chinsurah which was numbered as C.R. 241 of 2001 and learned C.J.M. directed the O.C., Chinsurah Police Station to investigate the matter after treating the said petition as F.I.R. under section 156(3) of the Code of Criminal Procedure. O.P’s No. 1 to 4 surrendered before the learned Court of Sub-Divisional Magistrate, Hooghly Sadar on 28.8.2001 and were granted bail of Rs. 600/- each. Police Authority, however after completion of investigation submitted final report on 5.1.2002 wherein prayer was made for discharge of the four accused persons who are O.P. Nos. 1 to 4 in this case. O.P’s No. 1 to 4 surrendered before the learned Court of Sub-Divisional Magistrate, Hooghly Sadar on 28.8.2001 and were granted bail of Rs. 600/- each. Police Authority, however after completion of investigation submitted final report on 5.1.2002 wherein prayer was made for discharge of the four accused persons who are O.P. Nos. 1 to 4 in this case. Police Authority also sought for permission to prosecute the petitioner under section 211 of the I.P.C. The petitioner filed an application on 1.3.2002 praying for further investigation whereas O.P. Nos. 1 to 4 filed an application and learned S.D.J.M., Hooghly Sadar heard all the parties on 18.3.2002 and by passing an order, discharged the O.P. Nos. 1 to 4 and permitted the Police Authority to prosecute the petitioner under section 211 of the Indian Penal Code for lodging false F.I.R. A case under section 211 of I.P.C. had already been started against the present petitioner. 5. The petitioner has categorically pointed out that the concerned Police Authority submitted final report resulting in discharge of O.P. Nos. 1 to 4 on the basis of perfunctory investigation. The order dated 18.03.2002 passed by the ld. S.D.J.M. Hooghly Sadar is, thus, bad in law in as much as the learned Court did not have any justification for initiating a case against the present petitioner under section 211 of I.P.C. 6. Being aggrieved by and dissatisfied with the said order dated 18th March, 2002, the petitioner has filed the instant application praying for setting aside of the same. 7. While assailing the impugned order dated 18th March, 2002, learned Counsel for the petitioner Mr. S. S. Haque submitted that the order under challenge suffers from inherent illegality and is based on mis-appreciation of facts. It was stated that section 195 of the Cr. P. C. clearly lays down that no Court shall take cognizance of an offence under section 211 of Indian Penal Code except on the complaint in writing of that Court or of some other Court to which that Court is sub-ordinate. In this context, he referred to the decision in the case of Gopalakrishna Menon & Anr. vs. D. Raja Reddy & Anr., reported in 1983 Crl. L. J. page 1599. Learned Counsel Mr. Haque also referred to the decision in the case of Kamalapati Trivedi vs. State of West Bengal, reported in 1979 Crl. L. J. page 679. In this context, he referred to the decision in the case of Gopalakrishna Menon & Anr. vs. D. Raja Reddy & Anr., reported in 1983 Crl. L. J. page 1599. Learned Counsel Mr. Haque also referred to the decision in the case of Kamalapati Trivedi vs. State of West Bengal, reported in 1979 Crl. L. J. page 679. The facts and circumstances of the said cases are, however, significantly different from those of the present case. Here, by the impugned order learned SDJM, Hooghly Sadar, permitted the Investigating Officer to proceed against the de facto complainant. Question of any complaint in writing of the concerned Court or of a superior Court does not arise herein. 8. Attention of this Court was drawn to the relevant portion of the impugned order of the learned S.D.J.M., Hooghly Sadar which may be reproduced as follows:- "The Investigating Officer has duly examined all available witnesses and consulted learned Public Prosecutor. Learned P.P. in-charge has fairly opined that there is no case against the accused and the accused persons be discharged from this case." 9. Learned Counsel Mr. Haque referred to the decision in the case of R. Sarala vs. T.S. Velu & Ors., reported in 2000 CRI. L.J. page 2453, in support of his contention that consultation with Public Prosecutor or seeking his opinion cannot be a part of the investigation nor the Investigating Officer is under any obligation either to seek such opinion of Public Prosecutor or to be bound by such opinion, if any. 10. It is true that the Public Prosecutor deals with a different filed in the administration of justice and he is not involved in investigation. It is also true that the Investigating Officer is not legally obliged to take the opinion of the Public Prosecutor or any authority, except superior Police Officer in the rank as envisaged in section 36 of the Code. In the words of Lord Denning, the Investigating Officer "is answerable to the law and to the law alone." (Ref: R. vs. Metropolitan Police Commissioner). In the present case learned Magistrate has no doubt referred to the fact of consultation with the Public Prosecutor. But it cannot be said, after taking into consideration the spirit of the entire order that the learned Magistrate chose to accept the final report without examining the relevant materials in the form of result of investigation. In the present case learned Magistrate has no doubt referred to the fact of consultation with the Public Prosecutor. But it cannot be said, after taking into consideration the spirit of the entire order that the learned Magistrate chose to accept the final report without examining the relevant materials in the form of result of investigation. It cannot be said that in the matter of acceptance of the final report, such consultation with the Public Prosecutor or his opinion in the matter was of any crucial role, if any at all. 11. In the impugned order dated 18.3.2002, learned S.D.J.M., Chinsurah, Hooghly Sadar has discussed about the back drop of the present case and after examining all relevant aspects accepted the final report and discharged the accused persons. Grievance of the de facto complainant was very well taken into consideration by the learned S.D.J.M. 12. After careful consideration of the relevant facts and materials I find it difficult, if not impossible, to share the grievances as ventilated on behalf of the petitioner and in my opinion, the order of acceptance of the final report in the back drop of the relevant materials was perfectly justified. 13. Much was argued on behalf of the petitioner in regard to the permission given to the Investigating Officer to proceed against the de facto complainant. It was urged that section 195 of the Criminal Procedure Code stood in the way of taking cognizance of an offence under section 211 of Indian Penal Code. In this context reference was made to the decision in the case of Gopalakrishna Menon & Anr. vs. D. Raja Reddy & Anr., reported in 1983 Cri. L.J. page-1599. There is no doubt that no Court can take cognizance of an offence under section 211 of Indian Penal Code except on the complaint in writing of the Court or of some other Court to which that Court is subordinate. In fact, cognizance cannot be taken of an offence under section 211 of Indian Penal Code when such offence is alleged to have been committed in or in relation to, any proceeding in any Court except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. But anxiety in this regard seems to be premature. But anxiety in this regard seems to be premature. Power of the Police Authority to investigate is not controlled or circumscribed by embargo under section 195 of Cr. P. C. (Ref: State of Punjab vs. Raj Singh & Anr., reported in AIR 1998 Supreme Court page 768). The Court, however, cannot take cognizance after completion of investigation in view of embargo of section 195 of Code of Criminal Procedure. There can be no second opinion as to the fact that in absence of a complaint of the concerned Court or a Court superior to it, cognizance of an offence under section 211 of Indian Panel Code cannot be taken. But the order under challenge before this Court does not speak about taking of cognizance for an offence under section 211 of Indian Penal Code. The learned Magistrate has just given a green signal to the Investigating Authority for going ahead with investigation for the alleged offence under section 211 of Indian Penal Code and in my opinion, grievance as ventilated in this regard cannot be said to have any leg to stand upon. 14. After due consideration of all relevant facts and materials and in the back drop of the aforesaid discussion, I am inclined to hold that the order under challenge does not suffer from any such illegality or irregularity which calls for or justifies any interference by this Court. I am of further opinion that there cannot be any question of any abuse of the process of law which justifies interference in exercise of section 482 of the Criminal Procedure Code. 15. Accordingly, the instant application being C.R.R. No. 873 of 2002 be dismissed. 16. The order dated 18th March, 2002 passed by learned Sub-Divisional Judicial Magistrate, Chinsurah, Hooghly Sadar in G.R Case No. 778 of 2001 arising out of Chinsurah P.S. Case No. 199 dated 24th August 2001 stands affirmed. Interim order, if any, stands vacated. 17. Send a copy of this order along with the L.C.R. if any, to the learned Court of Sub-Divisional Judicial Magistrate, Chinsurah, Hooghly Sadar at once for information and necessary' action. 18. Xerox certified copy, if applied for, be given to the parties on payment of requisite fees on priority basis. Appeal dismissed.