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Calcutta High Court · body

2007 DIGILAW 293 (CAL)

Aditi Sarkar v. STATE OF WEST BENGAL

2007-04-16

S.P.TALUKDAR

body2007
Judgment :- (1.) THE petitioner, Aditi sarkar, as complainant approached the learned Court of Additional Chief Metropolitan Magistrate, Calcutta with a petition of complaint praying for direction upon the concerned police authority for investigation after treating the said petition as F. I. R. under section 156 (3) of the Criminal Procedure Code. (2.) LEARNED Court initially directed d. C. D. D. , Calcutta to investigate. Subsequently, the matter referred to Jadavpur police Station and thereafter. C. I. D. , West bengal, took up investigation of the case and submitted charge-sheet. (3.) LEARNED Court by its order dated 15. 12. 2003 took cognizance of the offences under Sections 328/197/344/120-B of the indian Penal Code on the basis of the charge-sheet and the accompanying materials. (4.) THOUGH the case was started against five accused persons, learned Court after taking cognizance directed issuance of process upon four accused persons without mentioning anything about another F. I. R. named accused person, namely, S. K. Chakraborty. The investigating authority did not also make any prayer for discharge of the said accused person. While considering the police papers as submitted by the investigating authority, learned Court did not even choose to issue any notice upon the de facto complainant though one of the F. I. R. named accused persons was so left out. One of the charge- sheeted accused persons expired thereby leaving opposite parties Nos. 2 to 4 as the accused persons in the case. (5.) THEREAFTER, in compliance with the legal formalities, copies were supplied and the case was committed to the Court of Sessions. (6.) THE case was then transferred to the learned XI Court of Additional Sessions judge for disposal. Learned Court by order dated 28th February, 2006 framed charge against opposite party Nos. 2 to 4 under sections 328/197/344/ 120-B of the Indian penal Code. (7.) PETITIONER in the instant case alleged that all such developments took place behind the back of the petitioner/cfe facto complainant. As she came to know about all these, a petition was filed before the learned court praying for direction for further investigation. (8.) IT was alleged that the manner in which one of the accused persons, S. K. Chakraborty, had been left out demands further investigation. Inconsistencies with regard to the medical opinion need be removed by directing such further investigation. (8.) IT was alleged that the manner in which one of the accused persons, S. K. Chakraborty, had been left out demands further investigation. Inconsistencies with regard to the medical opinion need be removed by directing such further investigation. Materials collected in course of investigation may not be sufficient to unearth the truth and the prosecution also did not choose to stand in the way. (9.) IT was claimed that learned Trial Court failed to appreciate the matter in its proper perspective and by the impugned order dated 25. 7. 2006 rejected the prayer made on behalf of the de facto complainant. (10.) BY filing this application under Sec-tion 482 of the Code of Criminal Procedure, the petitioner prayed for such direction for further investigation. (11.) MR. Bagchi on behalf of the petitioner submitted that mere fact that the trial of the case has commenced in view of framing of charge does not prevent the Court from giving direction for further Investigation. (12.) RELYING upon the decision in the case of Bhagwant Singh v. Commissioner of Police and another,1 it was submitted that the court while considering the report forwarded under sub-section (2) of Section 173 of Cr. P. C. was under legal compulsion to issue notice and thereby give an opportunity of hearing to the de facto complainant before leaving out one of the F. I. R. named accused persons at the time of taking of cognizance. (13.) IN fact, the Apex Court in the case of union Public Service Commission v. S. Papaiah and others,2 referring to the case of Bhagwant Singh (supra) held that issuance of a notice by the Magistrate to the informant at the time of consideration of final report is a must. (14.) IT is well settled principle of law that when law requires a particular thing to be done in a particular manner, it must be done in that manner and in no other manner. (15.) THERE is no doubt that the power of the police to go ahead with further investigation can be triggered at the instance of the Court. Ref: Hemant Dhasmana v. Central Bureau of Investigation and another. (15.) THERE is no doubt that the power of the police to go ahead with further investigation can be triggered at the instance of the Court. Ref: Hemant Dhasmana v. Central Bureau of Investigation and another. 3 the said decision was referred to by the apex Court in the case of State oforissa v. Mahimananda Mishra and others,4 while observing that a plain reading of the language itself suggests that the power of the police to conduct investigation cannot possibly be restrictive in nature and it is of widest possible amplitude. (16.) MR. Bagchi referred to a few other decisions of various learned Single Bench of this Court in course of submission but the facts and circumstances of the said cases are distinctly separate from those of the present case. (17.) IT was categorically submitted by learned Counsel for the petitioner that Section 173 (8) of the Code gives ample power to police for proceeding with further investigation and learned Court may also direct such further investigation as and when necessary. Mere fact that cognizance had already been taken does not stand in the way of further exploration in the interest of justice. (18.) ON the other hand. Mr. Asis Sanyal, learned Counsel for the opposite party Nos. 2 to 4 cautiously reminded this Court that the present case stands on an entirely different footing. Charge having already been framed, trial of the case has commenced. He submitted that at this stage there is neither any scope, nor any justification, for a backward movement. According to him, the opposite party Nos. 2 to 4/accused persons would be highly prejudiced if the case is now allowed to proceed in the opposite direction. (19.) MR. Sanyal relied upon the decision in the case of Ranjit Singh v. State of punjab in support of his contention that once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. (20.) IT cannot be denied that in the present case, no notice was served or intimation was given to the de facto complainant by the learned Magistrate while considering the report submitted under Section 173 (2) of the Criminal Procedure Code. (20.) IT cannot be denied that in the present case, no notice was served or intimation was given to the de facto complainant by the learned Magistrate while considering the report submitted under Section 173 (2) of the Criminal Procedure Code. The fact that one of the F. I. R. named accused persons was left out did not find any proper mention in the order of taking cognizance. And, this serious lapse seems to be the architect of the present controversy. True, the case thereafter proceeded to some extent. It was committed to the learned Court of Sessions and, in fact, charge had also been framed. But the grievance that the de facto complainant was denied an opportunity of hearing cannot be brushed aside. Can such grievance be at all redressed even accepting that the learned sessions Court has ample power under Section 319 of the Code to summon an accused person? (21.) IT cannot be disputed that certain matters need thorough and effective investigation and evidence adduced at the stage of trial may not always be sufficient to unevil the mystery. The Court can very well summon any person as an accused if there is evidence on record. But such evidence may not necessarily heal up any latent wound, intentionally or otherwise left out unattended, at the time of investigation. (22.) CAN it be said that in such circumstances the Court is helpless. When indisputably no notice was served upon the de facto complainant while taking cognizance on the basis of the report under Section 173 (2) of the Criminal Procedure Code, leaving out an F. I. R. named accused person, there is, perhaps, need for a detailed analysis. Learned Trial Court did not find any provision in the Code which could enable it to direct such further investigation in the manner as sought for, after commencement of trial. But what about inherent power of this court under section 482 of Cr. P. C. ? section 482 of the Code reads as follows: "saving of inherent powers of High court--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. (23.) SECTION 482 of the Criminal Procedure code is similar to Section 151 of the Civil procedure Code. But whereas every Civil court has also inherent power under Section 151 of the Civil Procedure Code, the power under Section 482 of the Criminal procedure Code vests with the High Court. This reflects the concern and anxiety of the legislature and impliedly indicates that this power is required to be exercised with restraint and caution. (24.) THE nature of the power is undoubtedly enormous and wide. It is said that hands of law are long enough. Essentially, the inherent power under Section 482 of the code can always be exercised when there is no provision, nor any prohibition in the code. (25.) IT certainly cannot be the intention of the Legislature to make this Court a passive onlooker when it finds interference is necessary in order to secure the ends of justice. (26.) AS indicated earlier, a cautious and discreet approach is required to be taken while taking recourse to section 482 of the criminal Procedure Code. It is not meant to be used and exercised in a casual or indifferent manner. The position of the accused persons and the possibility of causing any prejudice to the accused persons cannot also be lost sight of. But the ultimate aim is to arrive at the truth and to do justice. (27.) IN fact, the Apex Court in the case of ranjit Singh (supra), as cited on behalf of the opposite party Nos. 2 to 4, held that the high Court can in its inherent powers or revisional powers direct the committing. Magistrate to rectify the committal order by issuing process to such left out accused. (28.) AFTER hearing learned Counsel for all the parties including the opposite party no. 1/state and taking into consideration all relevant facts and materials, it cannot be denied that non-service of notice upon the de facto complainant by the learned Magistrate at the time of taking of cognizance and leaving out one of the F. I. R. named accused persons has been a serious wrong committed in this case. Such initial vice persists. Taking recourse to Section 319 of the Code is not necessarily a proper and effective substitute for further investigation. Truth is not necessarily visible on the surface. Such initial vice persists. Taking recourse to Section 319 of the Code is not necessarily a proper and effective substitute for further investigation. Truth is not necessarily visible on the surface. Sometime it is to be dug out, otherwise there may be a possibility of missing the wood for the trees and there Section 482 of the Code comes into play. (29.) IN view of the peculiarity of the case, i think interest of justice would be best served if steps are taken for undoing the wrong. After all, it is better late than never. (30.) IN such circumstances, the present application being C. R. R. 2823 of 2006 be disposed of with the following directions: the order of taking cognizance being the order dated 15. 12. 2003 passed by the learned Court be set aside. (31.) SUBSEQUENT orders like order of commitment of the case to the Court of Sessions and the orders passed in connection with the said Sessions case are vacated. (32.) SINCE the de facto complainant is now present before this Court as petitioner, she be directed to file appropriate application and ventilate her grievance before the learned Court of Magistrate within a period of eight weeks from this date. Learned Magistrate will thereafter consider the report submitted by the police authority under section 173 (2) of the Criminal Procedure code afresh and pass appropriate order in accordance with law-of course, after giving opportunity of hearing to all parties. (33.) NEEDLESS to add, the learned Magistrate will also have ample authority to direct further investigation, if so considered necessary as the case now goes back to the pre-cognizance stage. Interim order, if any, naturally stands vacated. This disposes of C. R. R. 2823 of 2006. Criminal department is directed to give xerox crtified copy to the parties as expeditiously as possible. Petition allowed.