Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 61 (CAL)

Madan Mohanta v. State

2008-01-16

ASHIM KUMAR ROY

body2008
Judgment Heard the learned advocate appearing on behalf of the petitioner. Perused the impugned order as well as the other materials on record. In this criminal revision the petitioner challenged an order passed by the Learned Chief Judicial Magistrate, Dakshin Dinajpur, Balurghat in connection with G.R. Case No. 788/2006 arising out of Kumarganj P.S. Case No. 147 dated November 27, 2006 under Sections 325/304/34 of the Indian Penal Code, whereby the Learned Magistrate dismissed the protest petition of the defacto-complainant of the case, the petitioner herein, against non-submissions of the charge-sheet against two principal accuseds and for filing charge-sheet against five persons who according to the defacto-complainant were not involved in the commission of the alleged offences. Upon perusal of the impugned order it appears that the Learned Magistrate dismissed the said protest petition on the grounds, firstly, the police by filing supplementary charge-sheet included the said two accused persons who were not earlier charge-sheeted and secondly, as it transpires from the First Information Report that out of about fifteen persons involved in the alleged incident occurred at dark night, the defacto-complainant could identify only seven accuseds in the light of a torch whereas sufficient materials have been collected during the investigation as against those five persons who were not implicated in the FIR. The Learned Magistrate was of the further opinion that when the defacto-complainant could not even able to identify all the miscreants, he had no scope to say that the said five persons are not involved in the alleged incident. Mr. Anami Sikdar, the learned advocate appearing on behalf of the petitioner has not disputed the position that two FIR named accused persons who were left out in the original charge-sheet have implicated as accused in the supplementary charge-sheet. However, it is the main argument of Mr. Sikdar that no intimation was given to the defacto-complainant about the result of the investigation in terms of provisions of Section 173 (2)(ii) of the Code of Criminal Procedure by the investigating officer of the case. According to Mr. Sikdar the requirement of said provisions being mandatory in nature, non-compliance thereof vitiate the entire charge-sheet and the order of taking cognizance. In this connection, Mr. Sikdar relied on a decision relating to the case of Umanath Chowdhury Vs. Rahul Dutta reported in 2003 C. Cr. LR 481. Mr. According to Mr. Sikdar the requirement of said provisions being mandatory in nature, non-compliance thereof vitiate the entire charge-sheet and the order of taking cognizance. In this connection, Mr. Sikdar relied on a decision relating to the case of Umanath Chowdhury Vs. Rahul Dutta reported in 2003 C. Cr. LR 481. Mr. Sikdar further submitted that the investigating officer of this case motivatedly submitted charge-sheet against the aforesaid five persons who were not actually involved in the occurrence and are innocent. I have given my anxious consideration to the submissions made on behalf of the petitioner, perused the impugned order and other materials on record. Since admittedly two accused persons named in the FIR and not forwarded to the Court for trial in the first charge-sheet, subsequently included as accuseds and forwarded to the Court for their trial in the supplementary charge-sheet, the only point survives for decision whether non-sending the information to the defacto-complainant about the result of investigation in connection with the FIR lodged by him in terms of the provisions of Section 173 (2)(ii) of the Code of Criminal Procedure render the main charge-sheet liable to be interfered with. In my opinion, the object behind the provisions of Section 173 (2)(ii) of the Code of Criminal Procedure is this that the defacto-complainant ought to be communicated about the action taken by the police on the basis of the First Information Report lodged by him so as to provide him an opportunity of hearing at the time of consideration of police report. Even assuming in the instant case no such intimation was given to the defacto-complainant but when he on his own, having come to learn about the outcome of such investigation moved the Learned Court and had the reasonable opportunity of hearing it cannot be said that there is any infringement of the mandate of the provisions of Section 173 (2)(ii) of the Code more so when all the persons arraigned as accused in the FIR have been charge sheeted. I am of the further opinion when during the course of investigation police collects sufficient prima facie materials against any person, may be not named in the FIR, there is no scope to say before trial that they have been implicated in the case falsely. I am of the further opinion when during the course of investigation police collects sufficient prima facie materials against any person, may be not named in the FIR, there is no scope to say before trial that they have been implicated in the case falsely. Whether or not a person has been falsely implicated in a case is a pure question of facts and is a matter to be examined and decided on evidence in trial. Simply because a person has not been named in the FIR as accused that does not entitle him to claim a discharge from the case inspite of the facts police collected sufficient materials against him. The decision relied upon by the learned advocate of the petitioner has no manner of application in the facts and circumstances of the present case. There is a very noticeable feature in the instant case that none of those accused persons who allegedly have been falsely charge-sheeted has approached this Court. In the result I do not find any reason to interfere with the impugned order and accordingly this criminal revisional application stands dismissed with no costs.