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2005 DIGILAW 276 (CAL)

RADHESHYAM AGARWALA v. STATE OF WEST BENGAL

2005-04-27

P.N.SINHA

body2005
P. N. SINHA ( 1 ) THIS revisional application is aimed at quashing the proceeding in G. R. P, g. R. Case No. 89 of 2000 arising out of Shalimar GRPS Case No. 10 dated 31. 3. 2000 under Sections 341/120b/326/120b of the Indian Penal Code (I. P. C.)now pending in the Court of the learned Judicial Magistrate, 2nd Court, howrah. ( 2 ) THE aforesaid Shalimar GRPS case originated on the basis of first Information Report (FIR) lodged by Amitava Choudhury, the de facto complainant opposite party. The story as depicted in the FIR is that, the petitioner Radheshyam Agarwala, owner of Bengal Iron Corporation at ashutosh Ghosh Raod, P. S. Jagacha deployed hired criminals to murder his son Manti Choudhury @ Taraknath Choudhury. On the night of 20th March 2000, his son was brutally assaulted with sharp cutting weapon, lathi by a group of unknown persons who threatened him with a direction to instruct the informant to withdraw the cases filed by the informant against Radheshyam agarwala otherwise, he "would be buried alive. As his son refused to oblige he was attacked by one of the said criminals with a sharp cutting weapon aiming at his neck and in order to save himself from the attack the victim raised his right hand to save the blow as a result of which his little and ring finger of right hand were chopped of. Another sharp weapon blow was given on his left heal leaving the entire left heal hanging in one piece. A further sharp blow tore out the entire skin and muscle portion above his right foot which curled up like a mutton roll. In addition a large number of blood clots were still visible around the area of his buttock and entire body which are lethal weapon assaults. The miscreants left him in unconscious stage with prof used bleeding in a bush near 'jala' area (water portion) of Jagacha on the night of 20. 3. 2000. In the early hours of 21. 3. 2000 some people found the victim in unconscious state and removed him to Howrah General Hospital in a precarious condition. The FIR was received by Jagacha Police Station on 25. 3. 2000 and they forwarded the same to O. C. , Shalimar GRPS. Shalimar grps received the FIR on 31. 3. 2000 at 8. 45 A. M. and started the aforesaid rs. The FIR was received by Jagacha Police Station on 25. 3. 2000 and they forwarded the same to O. C. , Shalimar GRPS. Shalimar grps received the FIR on 31. 3. 2000 at 8. 45 A. M. and started the aforesaid rs. Case by registering the FIR. The investigation that followed ended in submission of final report as FRT. The informant was served with a notice by the learned Sub Divisional Judicial Magistrate (SDJM), Howrah and after hearing the complainant the learned Magistrate directed for further investigation. Thereafter, the police submitted charge-sheet No. 13 dated 30. 9. 2000 under sections 341/326/120b of the I. P. C. against this petitioner only. The learned sdjm transferred the case to learned Judicial Magistrate, 2nd Court, Howrah for disposal and the learned Magistrate by order dated 23. 5. 2003 framed charge under Sections 341/120b and 326/120b against the petitioner and hence, this revision assailing the order of the learned Magistrate framing charge against him. ( 3 ) MR. Sekhar Basu, learned senior Advocate appearing for the petitioner along with Mr. Sudipto Moitra and Mr. Subhasish Pachhal submitted that the FIR does not disclose name of any miscreant. In the FIR it was alleged that the informant strongly suspects that the petitioner hired dangerous criminals to murder his son Manti @ Taraknath Choudhury. The statement of the victim is not sufficient to attract elements of Sections 326/120b against the petitioner. None of the miscreants were either arrested or identified during investigation. The injured could not identify any of the alleged miscreants and statements of the injured recorded under Section 161 and under Section 164 of Cr. P. C. do not disclose name of any of the alleged assailants. In spite of that the police acted in a strange manner by filing charge-sheet against this petitioner who was not present at all at place of occurrence and his identity was not established. The statement of unidentified persons touching the name of this petitioner as transpired from statement of victim cannot be a ground to frame charge against the petitioner. In order to frame charge of conspiracy there must be plurality of persons so as to form the elements of conspiracy as question of conspiracy does not arise with the involvement of single accused. In the present matter the assailants, who caused injuries on the person of injured were not identified at all. In order to frame charge of conspiracy there must be plurality of persons so as to form the elements of conspiracy as question of conspiracy does not arise with the involvement of single accused. In the present matter the assailants, who caused injuries on the person of injured were not identified at all. Accordingly, involvement of this petitioner in the incident is nothi ig but hearsay and, that too, from the mouth of unidentified persons and such statement of unidentified person is wholly inadmissible. ( 4 ) MR. Basu further submitted that the word 'whoever1 embodied in sections 341, 326 and 120b of I. P. C. clearly indicate that there must be specified person to attract elements of the offence under aforesaid sections. The elements of the above stated offence do not arise, if person or persons are unidentified and not specified. There cannot be conspiracy by a single accused/in order to frame a charge of conspiracy there must be etimological and legal sense otherwise charge of conspiracy cannot stand. In order to frame charge provisions of Section 211 (5) of Cr. P. C. requires to be fulfilled. Statement of unidentified criminals do not attract elements of Section 341 and 326 of I. P. C. read with Section 120b of I. P. C. At the time of framing charge the learned Magistrate has to state name of the conspirator or conspirators in the charge, otherwise framing of charge would be bad in law and illegal. Utterances of unidentified persons cannot be reduced to legally admissible evidence. The statement of such unidentified persons if added or subtracted would not attract any element of offence against the petitioner. Unless there is definite person or persons the petitioner cannot be implicated in this case on the basis of alleged statement of unidentified person. In order to frame charge under Section 120b of I. P. C. there must be identified conspirator or conspirators and a charge of conspiracy cannot be framed on the basis of alleged statement of unidentified conspirators. The learned magistrate could not realise the legal position in the instant matter and without applying judicial mind framed the charge blindly. As there is no material against this petitioner he should be discharged and the proceeding should be quashed. The learned magistrate could not realise the legal position in the instant matter and without applying judicial mind framed the charge blindly. As there is no material against this petitioner he should be discharged and the proceeding should be quashed. ( 5 ) THE de facto complainant O. P. Amitava Choudhury appeared in person and submitted that he went to lodge FIR at Jagacha PS. on 22. 3. 2000 but, the O. C. refused to accept it and compelled him to delete the name of subinoy Ghosh; the then Mayor of Howrah Municipal Corporation. Accordingly, he filed fresh FIR without mentioning the name of Subinoy Ghosh and, O. C. compelled him to write the words "i strongly suspect" in the body of FIR. Sri choudhury submitted that Radheshyam Agarwala in connivance with some police personnel of Jagacha Police Station and Ex-Mayor Subinoy Ghosh and their musclemen started various types of torture on him and his son and family members. Not only that, the discharge of acid effluents and some other liquid discharge of chemicals and other materials of the factory of accused was polluting environment of that area and also damaged water of his pond as his pond and house are adjoining to the factory of Radheshyam Agarwala. He has filed a public interest litigation in the High Court being W. P. No. 833 (W) of 2004 with the allegation of causing pollution in that area and the said application is pending in the Green Bench of this Court. The accused petitioner is creating trouble since 1983-84 on various ways and he is the person who is responsible for such heinous attack on his son as a result of which his son has now become almost invalid. He referred to some of the papers which cannot be considered by this Court at this stage but, it is crystal clear that at the time of investigation the Investigating Officer did not go through those papers so as to ascertain the elements of conspiracy and where lies root of conspiracy. ( 6 ) MR. Ashim Kr. Roy, learned Advocate appearing in this matter for the State submitted that the petitioner has challenged order of learned magistrate in respect of framing of charge. ( 6 ) MR. Ashim Kr. Roy, learned Advocate appearing in this matter for the State submitted that the petitioner has challenged order of learned magistrate in respect of framing of charge. The question in this matter is whether charge of conspiracy can be hatched up against unidentified persons or whether a charge of conspiracy can be framed against a person whose name transpired from unidentified persons. In a case of dacoity presence of five or more persons is required at the time of committing dacoity. In a dacoity two or three persons may be identified and others may not be identified but, the persons who were identified and were either apprehended by police or appeared before the Court can face the trial with the charge of dacoity. There in the charge it would be mentioned that they along with others who remained unidentified committed the dacoity. The statement of the injured makes out a case under Sections 341 and 326 of I. P. C. The case is now at the stage of evidence after framing of charge. At the time of framing of charge or consideration of charge a learned Magistrate is not expected to come to a finding whether the case would end in conviction. It is the settled principle of law that even a strong suspicion is sufficient to frame charge and to proceed with the trial. ( 7 ) MR. Roy submitted that in the this case provisions of Section 10 of the Evidence Act are applicable. In this matter the statement of those miscreants or unidentified persons made before the injured before assault on him may be considered from which the name of this petitioner or involvement of this petitioner transpired. Accordingly, there are materials to show at least strong suspicion against the petitioner warranting sufficient ground to frame charge against the petitioner. The learned Magistrate made no mistake by framing charge against the petitioner. Let the trial be proceeded with and, if the prosecution fail to establish its case in the trial the petitioner would be acquitted. There is no ground to quash the criminal proceeding and the revisional application should be dismissed. ( 8 ) I have duly considered the submissions of the learned Advocates of the parties and perused the revisional application and the materials on record. There is no ground to quash the criminal proceeding and the revisional application should be dismissed. ( 8 ) I have duly considered the submissions of the learned Advocates of the parties and perused the revisional application and the materials on record. In the instant matter the petitioner has challenged an order of learned magistrate framing charge against him. In such a matter where the revisional application has been preferred against an order of framing charge, the High court would be very slow to interfere. All the submissions made by Sri Basu and Sri Moitra for the petitioner are concerning elements of Sections 341, 326 and 120b of I. P. C. This Court at this stage cannot assess evidence like a trial Court and appellate Court. It is well settled that Section 161, Cr. P. C. statements are not substantive piece of evidence. What a witness says in court during trial of. either a sessions case triable by Sessions Court or a warrant procedure case and summons case triable by a Magistrate is substantive evidence. Section 161, Cr. P. C. statement can be used only to take contradictions in the substantive evidence in Court from that of earlier statement made to a police officer during investigation. Section 162 of Cr. P. C. imposes ban on the use of statements recorded by the police officer under section 161, Cr. P. C. for the purpose of corroboration or as substantive evidence. Such a statement can be used by the accused, and with the permission of the Court by the prosecution, only for the purpose of contradicting the witness. Accordingly, what a witness would state in his evidence in Court would be treated as substantive evidenced and not the statement recorded by police officer during investigation. As evidence has not yet been recorded and, only charge has been framed, it would be too premature to guess evidence or materials relating to elements of offence under Sections 341, 326 and 120b of I. P. C. in the instant matter. ( 9 ) INJURY reports of Howrah General Hospital and Medical College and Hospital, Calcutta reveal the nature of impact of attack on victim and gravity of the injuries. Fortunately, by the grace of god the victim survived. ( 9 ) INJURY reports of Howrah General Hospital and Medical College and Hospital, Calcutta reveal the nature of impact of attack on victim and gravity of the injuries. Fortunately, by the grace of god the victim survived. If the victim succumbed to his injuries out of the attack, his statement disclosing name of the accused petitioner would have been a relevant consideration under Section 32 of the Evidence Act. In the trial if the injured utters name of some person or persons as the assailant or assailants what would happen in such a situation ? The trial Court in such a situation would be empowered to summon that person whose name would transpire in evidence from the mouth of victim to face the trial in view of provisions of Section 319 of Cr. P. C. True that, the victim did not utter name of any assailant but, if he utters name of any assailant in the trial, whether his evidence would be totally rejected or not or, his evidence would be treated as wholly unbelievable or not, is a matter which the trial Court would be the best person to decide considering the facts and circumstances of the case as well as on consideration of other evidence and materials on record. ( 10 ) WHAT a Court should do at the stage of framing charge has been laid down by the Supreme Court in State of Bihar v. Ramesh Singh, reported in AIR 1977 SC 2018 . The Supreme Court observed that, "at that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. . . . . . . . . . Strong suspicion against the accused, if the matter remains in the region of suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of trail, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under section 227. " ( 11 ) IN Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic control Bureau, reported in 1999 C Cr LR (SC) 376 the Supreme Court observed that, "it is well settled that at the stage of framing charge the Court is not expected to go deep into the probative value of the materials on record. If on the basis of materials on record the Court could come to the conclusion that the accused would have committed the offence the Court is obliged to frame the charge and proceed to the trial. " ( 12 ) IN State of Delhi v. Gyan Devi, reported in AIR 2001 SC 40 the supreme Court observed that, "it is well settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully, accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In such case, there would be no sufficient ground for proceeding with the trial. ( 13 ) IN Superintendent and Legal Remembrancer of Legal Affairs, West bengal v. Anil Kumar Bhunja, reported in 1979 Cr LJ 1390 the Supreme court observed that, "it may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a every strong suspicion founded upon materials before the magistrate, which. leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged ; may justify the framing of charge against the accused in respect of the commission of that offence. " ( 14 ) IN State of A. P. v. Golconda Linga Swami, reported in 2004 SCC (Cr) 1805 the Supreme Court observed that, "at the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed, if there are materials showing possibility about the commission of the crime as against certainty. " The decisions of the Supreme Court make it clear that at the stage for consideration of charge, the Court is not expected to look into the matter as to whether there is sufficient material or ground for conviction of the accused. ( 15 ) THE aforesaid decisions make it clear that during the stage for consideration of charge, the Court is not to see whether there is sufficient ground for conviction of the accused. ( 15 ) THE aforesaid decisions make it clear that during the stage for consideration of charge, the Court is not to see whether there is sufficient ground for conviction of the accused. At this stage, the Court has to find out from the materials on record whether prima facie there is ground to proceed further and to frame charge and, if the Court finds that there are prima facie materials to frame charge, it should frame charge and proceed with the trial. It has been observed that at the stage of consideration of charge, even a very strong suspicion may be the basis of framing charge, if the materials before the Court leads him to form the presumptive opinion as to existence of ingredients constituting prima facie materials of offence. The submissions that there is nothing to implicate the petitioner and, that statement of unidentified persons are wholly admissible in evidence, and that no charge of conspiracy can be framed if there is no certain or definite another identified person are all matters of discussion on the basis of evidence which this Court cannot assess at this stage, when only charge has been framed and evidence has not been recorded. ( 16 ) I have already indicated that evidence is substantive evidence which the informant and the injured would stage or depose in their evidence in Court. Mr. Ashim Kumar Roy submitted that Section 10 of the Evidence Act would be applicable and evidence of the injured can be acted upon is a matter which can be decided in the trial and not this stage. After recording the evidence of witnesses, the learned trial Court would be able to decide whether such statement of the victim regarding name of this accused petitioner as a conspirator is admissible in evidence or not in view of provisions of the evidence Act and whether Section 10 of the said Act has any relevant application in this matter. His evidence can only reveal under what circumstances he was attacked and what was the actual utterances of the assailants, whether he could identify any of them but, out of fear did not disclose their name in the FIR, or police played a part in not recording name or names of assailants or conspirators in FIR are all matters which can be decided in trial. ( 17 ) THE informant who appeared in person submitted that under the instruction of Jagacha Police Station he had to omit the name of Subinoy ghosh, the Ex-Mayor, and thereafter, only the Officer-in-Charge of Jagacha p. S. accepted the FIR and even thereafter investigation was not proper, is also a matter which can reveal the light before the Court in the trial. During trial, if the learned trial Court finds that the police officers of Jagacha P. S. were involved in the matter to hide truth he would unhesitatingly take action in the matter and, if the trial Court finds that subsequently thereafter the shalimar GRPS did not take effective steps for investigation and designedly made the investigation defective to help the accused and others he would be free to direct further investigation into the matter. ( 18 ) IT is well settled that even after taking of cognizance direction for further investigation can be made. The Supreme Court in Zahira Habibulla H. Sheikh v. State of Gujarat, reported in 2004 SCC (Cr) 999 : 2004 AIR SCW 2325 : 2004 C Cr LR (SC) 524 observed that, the Court should not be a silent spectator performing the role of a referee and later on throwing arms in despair. In that decision the Supreme Court even after trial by Sessions Court which was affirmed in the High Court directed further investigation. It is the principle of law that further investigation, if any, would be for ends of justice. If during trial, the trial Court finds that there was defective investigation and police officers of Jagacha RS. as well as Shalimar GRPS did not investigate the case properly, the Court unhesitatingly would direct further investigation. ( 19 ) IN Zahira Habibulla H. Sheikh (supra) the Supreme Court observed that, "if the investigation was faulty, it was not the fault of the victims or the witnesses. If the same was done in a manner with the object of helping the accused persons as it appears to be apparent from what has transpired so far, it was an additional ground just and reasonable as well as for accepting the additional evidence. If the same was done in a manner with the object of helping the accused persons as it appears to be apparent from what has transpired so far, it was an additional ground just and reasonable as well as for accepting the additional evidence. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of Investigating Officer if the investigation is designedly defective. (See Karnel Singh v. State of M. P. , (1995)5 SCC 518 : 1995 C Cr LR (SC)340. In Paras Yadav and Ors. v. State of Bihar, (1999)2 SCC 126 it was held that if the lapse or omission is committed by the investigating agency or because of negligence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of courts getting at the truth by having recourse to Sections 311, 391 of the code, and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence; otherwise the designed mischief would be perpetuated with a premium to the offenders and justice would not only be denied to the complainant party but also made an ultimate casualty. " the guidelines, the Supreme Court enunciated in the aforesaid decision clearly reveals that if the Court finds that the investigation was not done properly and, it was done so defective only to help the accused right from beginning, the Court must be circumspect and should adopt an active and analytical role to ensure the truth instead of throwing hands in the air in despair. ( 20 ) IT is true that the law laid down by the Supreme Court in Zahira habibullah H. Sheikh (supra) known as Best Bekary case cannot be applied to all cases against established principles of criminal jurisprudence as the decision in Best Bekary case was in connection with extra ordinary circumstances. This view has been expressed by the Supreme Court recently in Satyajit Banerjee and Ors. v. State of West Bengal and Ors. , reported in 2005 scc (Cr) 276 : (2005)1 C Cr LR (SC) 142. Even if the principles of normal criminal jurisprudence is applied in the instant case, further investigation is necessary as it is evident that the investigation made was designedly defective right from the beginning from the stage of registration of FIR. In such a situation, where the Court finds that the investigation was made defective deliberately and there was attempt to divert the matter of investigation and incident to a different angle as a railway accident, where the medical report indicated sword injury, the Court cannot remain a silent spectator and, if the court finds that investigation was defective it can direct further investigation and even can direct investigation by superior officer. In this case after considering the entire matter and the manner in which investigation was made, the only inevitable conclusion that can be arrived at is that further full thorough investigation is the only solution in this case. There is no bar to conduct further investigation and submit further report under Section 173 (8)of Cr. P. C. even after cognizance has been taken. ( 21 ) THE Supreme Court in State of Rajasthan v. Aruna Devi and Ors. , reported in (1995)1 SCC 1 :1995 C Cr LR (SC) 99 observed that even after acceptance of final report by the Magistrate, there is no bar by him from taking cognizance of the offence if on further investigation fresh materials comes to light. This decision clearly suggests that if after further investigation further action comes to light the Magistrate can take action on the basis of report submitted after further investigation. This decision clearly suggests that if after further investigation further action comes to light the Magistrate can take action on the basis of report submitted after further investigation. ( 22 ) IN Hasanbhai Valibhai Qureshi v. State of Gujarat, reported in 2004 AIR SCW 2063 : 2004 C Cr LR (SC) 865 the Supreme Court observed that even after taking of cognizance direction for further investigation can be made and delay in trial for further investigation is not at all a factor that requires consideration. The observation of the Apex Court is as follows-"coming to the question whether a further investigation is warranted, the hands of the investigation agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. Sub-section (8) of Section 173 of the Code permits further investigation and even de hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. " Section 173 (8) of the Code empowers police to make further investigation but, it does not debar a Magistrate to direct further investigation if the Magistrate finds that the earlier report submitted by police on the basis of investigation which was perfunctory and designedly defective. The aforesaid decision also make the position of law clear that, if there is defective investigation Magistrate can direct further investigation and direction for further investigation, if any, would be for the ends of justice and to reveal the truth. In the trial if after evidence it transpires that there were materials of Section 307 or any other Section of I. P. C. , learned Magistrate in such a situation would unhesitatingly act in accordance with law. Not only that, if after evidence learned Magistrate finds elements have been revealed to attract Section 362 of I. P. C. and elements of offence either under Section 364 or 367 of I. P. C. transpires, he would unhesitatingly alter charge, and if finds that elements of offence triable by Court of Sessions transpires would commit the case to court of Sessions in accordance with law. ( 23 ) IN Leela Das v. State, CBI, this Court in 2001 Cr LJ 2864 observed that even after submission of charge-sheet in respect of one accused, order of Magistrate directing police to further investigate into case passed after receiving report under Section 173 (2) of Cr. P. C. is proper. In State of Orissa v. Data Singh @ Rabindra Kumar Pal, reported in 2001 Cr LJ (NOC) 149 (Orissa) it was observed by the Orissa High Court that even after submission of charge-sheet and taking of cognizance of offence by learned Magistrate further investigation is permissible. In Hemant Dhasmana v. Central Bureau of Investigation, reported in 2001 Cr LJ 4190 the Supreme Court clearly indicated that further investigation after submission of report under sub-section (2) of Section 173 is permissible and after submission of report by CBI before special Judge, the Special Judge can order further investigation for ends of justice. ( 24 ) A learned Single Judge of this Court in Istakuddin Mondal alias haradhan Mondal v. State of West Bengal and Ors. , reported in (2005)1 C Cr lr (Cal) 182 observed that power of police to conduct further investigation after charge-sheet submitted and cognizance taken by Magistrate is permissible and Magistrate has power to direct further investigation after charge-sheet is submitted. The Supreme Court in Sri Bhagwan Samardha Sreepada Vallabha venkata Vishwandadha Maharaj v. State ofandhra Pradesh and Ors. , reported in 1999 Cr LJ 1661 observed that further investigation/reinvestigatiori under section 173 (8) of Cr. P. C. can be ordered by Magistrate even after receipt of first report of police. In Ram Lai Narang v. State (Delhi Administration), the supreme Court in AIR 1979 SC 1791 clearly observed that even after cognizance of offence taken by Magistrate further investigation by police is not barred. ( 25 ) IN Hasanbhai Valibhai Oureshi (supra) there was defective investigation and after registration of FIR Sections 395 and 120b of I. P. C. were deleted by the prosecution agency. However, in the said matter the court of the Additional Sessions Judge, 10th Fast Track Court at Veraval framed charge against three of the accused persons under Section 120b of i. P. C. At that stage the ate facto complainant filed an application for further investigation disclosing that there were lapses in investigation. However, in the said matter the court of the Additional Sessions Judge, 10th Fast Track Court at Veraval framed charge against three of the accused persons under Section 120b of i. P. C. At that stage the ate facto complainant filed an application for further investigation disclosing that there were lapses in investigation. The High Court of Gujarat observed that further investigation is necessary and further investigation can be carried out under the supervision of the trial Court. The de facto complainant moved the Supreme Court against that order and the hon'ble Supreme Court did not interfere into the order of the learned Sessions judge relating to framing of charge and the charge was not set aside. The supreme Court indicated that further investigation even after Court takes cognizance of offence on earlier report submitted by police is permissible and further investigation cannot be ruled out merely on the ground that it may delay the trial. In the instant case this decision of the Hon'ble Supreme Court is squarely applicable. The learned Magistrate has already framed charge against the petitioner and the charge cannot be quashed in view of the observations made above in the earlier paragraphs. ( 26 ) IT appears that investigation was not conducted in a fair manner and right from the registration of FIR the police officers tried to conceal the truth and tried to twist the actual incident in a different direction in the way as if the victim sustained injuries due to train accident by fall from a running train. The allegation of de facto complainant O. P. No. 2 Amitava Chowdhury that he submitted typed FIR before the O. C. , Jagacha P. S. and the O. C. , jagacha P. S. forced him or rather compelled him to write with a pen supplied by the O. C. himself the words 'i strongly suspect' also requires proper investigation. It appears that when the injured Manti Chowdhury @ Taraknath was proceeding on the night of 20. 3. 2000 some persons encircled him and restrained him from proceeding towards his direction, and thereafter, the said persons told him to kill his father if he does not withdraw the case filed against the present petitioner in the High Court. It appears that when the injured Manti Chowdhury @ Taraknath was proceeding on the night of 20. 3. 2000 some persons encircled him and restrained him from proceeding towards his direction, and thereafter, the said persons told him to kill his father if he does not withdraw the case filed against the present petitioner in the High Court. Thereafter, the said unknown miscreants dragged him away to a great distance near railway track and attacked him with sharp cutting weapon and also blunt weapon and when he became unconscious near railway area, the said miscreants fled away. It appears that the first part of incident took place at a different place where the injured was first encircled and restrained by the miscreants and that place was whether within Jagacha P. S. or whether within the railway area giving jurisdiction to Shalimar G. R. P. S. to investigate the case requires first part of investigation and, where the victim was found lying by the side of pond was within jurisdiction of which P. S. requires to be ascertained to find out which police station had jurisdiction of investigation in this case. The original FIR is lying in Court which was typed, and it would indicate that right from beginning the Officer-in-Charge of Jagacha P. S. Tarak Nath Masanta tried to twist the case in a different way and, if proper investigation is made it may point chain of circumstances that Officer-in-Charge of Jagacha P. S. himself was a member of the conspiracy behind the incident and took steps to keep some persons and anti socials behind the curtain who were actually involved in the conspiracy. ( 27 ) A sapling grows into a tree and takes a massive shape after several years by the process of germination from a small seed. A conspiracy cannot be hatched up suddenly. It takes several years or at least several months depending upon different facts and circumstance's to form the conspiracy. Parts of incidents, if linked together, may reveal before the Court how a conspiracy was formed and from where root of conspiracy originated. If investigation was made properly it would have revealed how conspiracy was made by some interested persons against the de facto complainant amitava Chowdhury and in that process made attempt to eliminate his son manti Chowdhury. Parts of incidents, if linked together, may reveal before the Court how a conspiracy was formed and from where root of conspiracy originated. If investigation was made properly it would have revealed how conspiracy was made by some interested persons against the de facto complainant amitava Chowdhury and in that process made attempt to eliminate his son manti Chowdhury. It appears that the informant filed a case in the High Court under Green Bench for pollution control against Radheshyam Agarwala. In terms of direction of a Division Bench of this Court enquiries were made by the West Bengal Pollution Control Board. Thereafter, the West Bengal Pollution control Board vide order No. 13/wpb-H (V)/98 dated 26. 4. 2000 passed order of closure of M/s. Bengal Iron Corporation located at Ashutosh Ghosh Raod, jagacha, Howrah owned by this petitioner and, there was direction to close down its manufacturing process for the reasons which were mentioned in the said closure order. Before that this petitioner tried to encroach on the land of the de facto complainant and with the assistance of Howrah Municipal corporation a drain was constructed over the land of the informant and according to informant the drain was constructed quite illegally. At the time of excavation or digging of earth into complainant's land for construction of the drain the then O. C. , Jagacha P. S. and some other officers of that P. S. took active steps in the matter. For this reason the informant in the FIR wanted to implicate Subinoy Ghosh, the then Mayor of Howrah Municipal Corporation but the O. C. , Jagacha P. S. refused to take that FIR. The informant then had to type fresh FIR and over that he was compelled by the O. C. , Jagacha P. S. Tarak Nath Masanto to right down with pen over the typed FIR the words "i strongly suspect" Radheshyam Agarwala. The informant then had to type fresh FIR and over that he was compelled by the O. C. , Jagacha P. S. Tarak Nath Masanto to right down with pen over the typed FIR the words "i strongly suspect" Radheshyam Agarwala. The injury reports of Medical College and Hospital clearly indicates that the injuries on the victim were caused by sword injury but, it is unfortunate, that the Jagacha P. S. and the Shalimar grps tried to make it out as a case of accident due to fall of the injured from a running train and in that process right from beginning the investigation was defective, perfunctory and the investigation was designedly made defective to hide the real persons or to conceal the presence of real culprits who are behind the incident. ( 28 ) IT appears that in connection with W. P. No. 17371 (W) of 1998 west Bengal Pollution Control Board submitted a report dated 28. 10. 98 after inspection on 8. 10. 98 in this Court. In W. P. No. 22492 (W) of 1999 by order dated 2. 5. 2000 a Division Bench presided over by the Hon'ble the Chief justice directed steps for treatment of son of this petitioner. There was no investigation at all by police that attempt of petitioner to encroach over land of de facto complainant was seriously protested by filing writ applications in this Court. De facto complainant also filed writ against pollution created by factory of petitioner as a result of which there was closure order of the factory by West Bengal Pollution Control Board. If all these matters were investigated the chains or tract of conspiracy and persons behind such conspiracy including police officers who helped the petitioner in the matter could have been detected. It is clear that police officers of Jagacha P. S. would not investigate into the matter purposefully to save their skin. The germ or seed of conspiracy how formed and took such a colossal shape that there was attempt to bring an end to the life of son of the de facto complainant. Unfortunately, there was no investigation at all to unearth the conspiracy and to detect the persons behind the conspiracy by police making the investigation designedly incomplete and defective. The germ or seed of conspiracy how formed and took such a colossal shape that there was attempt to bring an end to the life of son of the de facto complainant. Unfortunately, there was no investigation at all to unearth the conspiracy and to detect the persons behind the conspiracy by police making the investigation designedly incomplete and defective. Even de facto complainant was not property examined and I. O. did not verify relevant papers from the de facto complainant to investigate properly "where lies root of conspiracy. ( 29 ) IN State of Bihar v. J. A. C. Saldanna, reported in AIR 1980 SC 326 : 1980 Cr LJ 98 the Supreme Court discussed the scope and object of sections 36, 156 and 173 of the Cr. P. C. The Supreme Court in that decision held that,"the use of the word 'rank' in Section 36 of the Code comprehends the hierachy of police officers. It is equally clear that Inspector-General of police will have jurisdiction over the whole of the State. Division of work, but not demarcating any local area indicates that Inspector-General, Vigilance, will have jurisdiction over the whole of the State and this equally becomes clear from the Notification dated June 6,1973 issued by the State Government in exercise of the power under clause (s) of sub-sec (1) of Section 4 of the 1898 Code declaring that in respect of certain offences the Vigilance department shail be deemed to be a police station having its jurisdiction throughout the whole State of Bihar. Even apart from this, Inspector-General appointed by the State Government has jurisdiction over the whole of the state unless the contrary in indicated. If he is thus an officer superior in rank to an officer in charge of a police station he could in view of Section 36 exercise the powers of an officer in charge of a police station throughout the local area to which he was appointed meaning thereby the whole of Bihar state as might be exercised by an Officer-in-Charge of a police Station within the limits of his police station. It was to him that the investigation of the case was ordered to be handed over by the State Government. It was to him that the investigation of the case was ordered to be handed over by the State Government. " ( 30 ) IN the said decision the Supreme Court also made it clear that there is no conflict between Section 3 of the Police Act and Section 173 (8)of the Code. The Supreme Court observed that, "power to direct investigation or further investigation is entirely different from the method and procedure of investigation and the competence of the person to investigate. . . . . . . . . . . . . . . An officer superior in rank to an Officer-in-Charge of a police station could as well exercise the power of further investigation under Section 173 (8) in view of the provisions embodied in Section 36 of the Code. If that be so, such superior officer could as well undertake further investigation on his own and it is immaterial and irrelevant that he does it at the instance or on the direction of the State Government. Such a direction in no way corrodes his power to further investigate on his own. ( 31 ) THE power of the Magistrate under Section 156 (3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the learned Magistrate under Section 156 (3) can be exercised by the Magistrate even after submission of a report by the Investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the Investigating Officer and direct further investigation. This provision does not in any way affect the power of the Investigating officer to further investigate the case even after submission of the report as provided in Section 173 (8 ). Therefore; the High Court was in error in holding that the State Government in exercise of the power of superintendence under section 3 of the act lacked the power to direct further investigation into the case. " ( 32 ) THE above position of law would be very fruitful, if the facts and circumstances of the present case are considered. Therefore; the High Court was in error in holding that the State Government in exercise of the power of superintendence under section 3 of the act lacked the power to direct further investigation into the case. " ( 32 ) THE above position of law would be very fruitful, if the facts and circumstances of the present case are considered. It is evident that the investigation by the Officer-in-Charge of Jagacha P. S. or Officer-in-Charge of shalimar G. R. P. S. would not improve the fate of the investigation and, the real picture can be brought before the Court, if investigation is conducted by a superior police officer not below the rank of Special Superintendent of Police. Previously it was indicated that learned Magistrate or trial Court would be free to direct further investigation, but considering the entire matter I think that for ends of justice interference by this Court to direct further investigation is necessary to reveal the truth. This is a fit case where this Court should direct further investigation into the case and the higher rank officer who would investigate into the case by order of this Court should exercise his powers under Sections 36 of Cr. P. C. read with all other provisions of Cr. P. C. relating to investigation and submission of report after completing investigation under section 173 (8) of the Code. Accordingly, I direct the Director General of police, West Bengal who has jurisdiction over the whole of the State of West bengal to take steps for investigation into the matter for proper investigation by an officer not below the rank of Special Superintendent of Police and to direct such officer of higher rank to submit report before the learned Magistrate in accordance with law after completing further investigation. The report that would be submitted after further investigation would be treated as supplementary report. The investigation by higher rank officer exercising powers under Section 36 of Cr. P. C. read with Section 173 (8) of Cr. P. C. including all powers of investigation after registration of FIR can only unfold the mystery behind the incident and it is expected that a true and fair investigation by higher rank police officer as indicated above would reveal the truth which earlier did not see the light of the day. P. C. read with Section 173 (8) of Cr. P. C. including all powers of investigation after registration of FIR can only unfold the mystery behind the incident and it is expected that a true and fair investigation by higher rank police officer as indicated above would reveal the truth which earlier did not see the light of the day. During further investigation the higher rank officer who would conduct further investigation should try to find out the assailants as well as the conspirators who were behind the incident in forming the conspiracy and also try to find out the officers of the two police stations namely Jagacha P. S. and Shalimar G. R. P. S. who were responsible in trying to direct the investigation in a wrong direction. If after investigation it is revealed that officers of Jagacha P. S. right from registration of FIR tried to direct investigation designedly in a perfunctory way, it is expected that the authorities concerned should take appropriate action against such police officers, if it is found that there was attempt or device in concealing truth and directing the investigation in different way so that real picture does not come to light before the Court. ( 33 ) COMING back to our main point in issue whether at this stage this court would interfere into the order of the learned Magistrate in framing charge, I am of opinion that, the discussion made earlier in the previous paragraphs referring to some of the authorities in the matter, the position is very much clear that at this stage this Court would not interfere into the matter. It is well settled that a strong suspicion is sufficient to frame charge. If in the trial the prosecution fails to lead sufficient evidence to establish the charge, the petitioner is entitled to an order of acquittal. The above discussion make it clear that there is no ground to interfere with the impugned order passed by the learned Magistrate. It is well settled that the High Court would interfere into the matter of framing charge only in rarest of rare cases. The above discussion make it clear that there is no ground to interfere with the impugned order passed by the learned Magistrate. It is well settled that the High Court would interfere into the matter of framing charge only in rarest of rare cases. This is not such a case which can be regarded as rarest of rare case so that this court would interfere into the matter and set aside the order of the learned magistrate, more particularly when there is reasonable suspicion of parts of police to make the investigation defective right from beginning compelling informant to remove name of other suspects in FIR and forcing him to submit another FIR, and in view of the above direction for further investigation. In hasanbhai Valibhai Qureshi (supra) charge framed under Section 120b of i. P. C. by the learned Trial Court remained intact and was not set aside and even thereafter, there was direction for further investigation. This principle is squarely applicable in the instant matter. The aforesaid discussion make it clear that the revisional application has no merit and it accordingly fails and is dismissed. ( 34 ) AS this Court has directed further investigation to be conducted by an officer not below the rank of Special Superintendent of Police further proceeding of the case, shall remain suspended till the learned Magistrate receives report of further investigation. If report of further investigation reveals more fight and more ingredients as well as more names of accused persons before the learned Magistrate, the learned Magistrate would act in accordance with law and would alter charge, if report of further investigation reveals new materials of offence and would summon other accused persons, if further investigation report reveals or discloses names of other accused persons and conspirators. ( 35 ) I make it clear that whatever I have stated above or observed should not be considered as opinion regarding merit of the case and the learned Magistrate at appropriate stage would act in accordance with law and would arrive at his own conclusion and would not be guided by the observations made by this Court in this revisional application. ( 36 ) INTERIM order of stay, if any, passed earlier stands vacated. ( 36 ) INTERIM order of stay, if any, passed earlier stands vacated. ( 37 ) LEARNED Registrar General, High Court shall send a copy of this order to the Director General of Police, West Bengal and another copy to him by name for information and necessary action who in his turn shall direct concerned higher rank officer as directed in the order to take up further investigation and submit report before learned Magistrate as expeditiously as possible and preferably within six months from starting of further investigation. If further time is required to complete the investigation necessary prayer should be made before learned Magistrate in accordance with law before expiry of time. ( 38 ) CONSIDERING urgent nature of the case and in view of direction of further investigation the records of G. R. P. G. R. Case No. 89 of 2000 now pending in the Court of learned Judicial Magistrate, 2nd Court, Howrah is transferred to the Court of learned Chief Judicial Magistrate, Howrah for information and necessary action. He will proceed with the trial after receiving report of further investigation and would act in accordance with law as indicated above. The learned Magistrate would keep in mind his jurisdiction regarding application of Sections 311, 319 of Cr. P. C. as well as Section 156 of the evidence Act in the trial, if scope of application of the said sections become relevant. ( 39 ) SEND a copy of this order to the learned Chief Judicial Magistrate, howrah and learned Judicial Magistrate, 2nd Court, Howrah for information and necessary action. Learned Judicial Magistrate, 2nd Court, Howrah shall transmit the records of G. R. P. G. R. Case No. 89 of 2000 now pending in this court to the Court of learned Chief Judicial Magistrate, Howrah. ( 40 ) URGENT xerox certified copy be given to the parties, if applied for, expeditiously.