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Calcutta High Court · body

2008 DIGILAW 57 (CAL)

Bijoy Yadav v. The State of West Bengal

2008-01-16

ASHIM KUMAR ROY

body2008
Judgment 1. In the instant criminal revisional application the petitioner prays for quashing of the charge-sheet relating to an offence punishable under Section 33-A of the Calcutta Suburban Police Act, 1966 in connection with the U.R. No. 31/06, now pending before the Learned Chief Judicial Magistrate, Alipore arising out of Alipore Police Station (Sec. VI) Part II Case No. 2 dated June 1, 2006 and the order of taking cognizance of commission of such offence in connection therewith. 2. The background of this case is that on June 1, 2006 at about 4.00 P.M. in the afternoon, while the complainant, who happened to be a Sub-Inspector attached to the Alipore Police Station, was on round move with the force, found the petitioners passing through the Diamond Harbour Road with copper cable, two spades, two gaieties, two knifes and one hammer in their possessions. It is further alleged on being intercepted by the police as they could not give any satisfactory explanation or produced any valid document in support of such possession, the police arrested them and seized the said articles. Thereafter a suo motu First Information Report was lodged with the Alipore Police Station by the said police officer which gave rise to the Alipore Police Station (Sec. VI) Part II Case No. 2 dated June 1, 2006 under Section 379/114 of the Indian Penal Code read with Section 41 of the Code of Criminal Procedure. However, after completion of investigation police finally submitted charge-sheet under Section 33 A of the Calcutta Suburban Police Act, 1966 against the petitioners. 3. Mr. Rajdeep Mazumdar, the learned advocate appearing on behalf of the petitioners submitted before this Court that the present petitioners are employed by M/s. Prabir Enterprise, an authorized contractor of BSNL for carrying out site works. He further submitted that during investigation, the Investigating Officer of this case also informed the Divisional Engineer, Alipore Telephone Exchange about such recovery and requested him to make necessary complaint in this regard but inspite of receipt of such notice no allegation has been made by the BSNL Authority alleging the same are stolen articles. Mr. Mazumdar further submitted from perusal of the charge-sheet it would appear that there is no evidentiary materials collected by the police during investigation, to prima facie establish that articles seized from the possession of the petitioners are stolen articles. Mr. Mr. Mazumdar further submitted from perusal of the charge-sheet it would appear that there is no evidentiary materials collected by the police during investigation, to prima facie establish that articles seized from the possession of the petitioners are stolen articles. Mr. Mazumdar relying on a decision reported in 1976 (1) CLJ 213 in the case of Tapan Kumar Ghosal Vs. State of West Bengal and further submitted that in view of the fact the offence punishable for which charge-sheet has been submitted, being a non-cognizable offence and there being no compliance with the provisions of Section 155 of the Code, the order of taking cognizance became wholly illegal and invalid. On the other hand, Mr. Rabi Sankar Chatterjee, the learned advocate appearing on behalf of the State produced the Case Diary and did not oppose the contention of Mr. Mazumdar that in the instant case since the provisions of Section 155 (2) of the Code has not been complied with the order of taking cognizance is not valid but opposed the prayer for quashing. 4. Heard, the learned advocates appearing on behalf of the parties. Perused the materials on records as well as the evidentiary materials collected during the course of investigation. 5. It is beyond controversy when in course of investigation of cognizable offences the police found that a case of non-cognizable offence punishable under Section 33 A of the Calcutta Suburban Police Act, 1966 has been made out it was incumbent upon the police to proceed in terms of the provisions of Section 155 (2) of the Code of Criminal Procedure and thus in the instant case noncompliance thereof renders the order of taking cognizance invalid and illegal. 6. Be that as it may, having carefully gone through the Case Diary and more particularly the report submitted under Section 173 of the Code, I found that the accuseds were arrested for alleged commission of the offences punishable under Section 379/114 of the Indian Penal Code as they failed to give any satisfactory answer or produce any valid documents in support of possession of the seized articles. It further appears that during investigation none came forward claiming the ownership of the seized article or alleging that the same are stolen. The necessary enquiry was also made at the neighboring police stations but from there also no information was received that the same are stolen property. It further appears that during investigation none came forward claiming the ownership of the seized article or alleging that the same are stolen. The necessary enquiry was also made at the neighboring police stations but from there also no information was received that the same are stolen property. Thus, there was no evidentiary materials collected by the police to prima facie establish that those articles in question are stolen, still charge-sheet has been submitted concluding that in absence of anything to establish the articles are stolen articles, the accused may face a trial for an offence under Section 33 A of the Calcutta Suburban Police Act, 1966. 7. Having regards to the position of law I am of the opinion when in course of investigation of any case relating to the offence punishable under Section 379/114 of the Indian Penal Code read with Section 41 of the Code of Criminal Procedure if the police found the materials collected during investigation fail short of proving that the goods are stolen property still he was competent to submit a report before the Learned Magistrate to say that the goods that were found in the possession of the accused were reasonably believed to be stolen or fraudulently obtained and to pray for prosecution of the accused under Section 33 A of the Calcutta Suburban Police Act, 1966. However, in the instant case, I do not find anything to show that the articles in question are stolen articles nor there is any allegation that the goods which were found in the possession of the accuseds were reasonably believed to be stolen or fraudulently obtained which is one of the basic ingredients of an offence punishable under Section 33 A of the Calcutta Suburban Police Act, 1966. I further found no complaint has been lodged by the Divisional Engineer, Calcutta Telephone Exchange, BSNL in response to the information given to him by the Investigating Officer, which fact has not been disputed by the learned advocate of the State. Thus, in absence of any materials in the charge sheet that the goods that were found in the possession of the accuseds were reasonably believed to be stolen or fraudulently obtained no prosecution under Section 33 A of the Calcutta Suburban Police Act, 1966 is legally maintainable as against the accused persons. 8. Thus, in absence of any materials in the charge sheet that the goods that were found in the possession of the accuseds were reasonably believed to be stolen or fraudulently obtained no prosecution under Section 33 A of the Calcutta Suburban Police Act, 1966 is legally maintainable as against the accused persons. 8. In the result the instant criminal revision stands allowed and the impugned proceedings stands quashed.