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2011 DIGILAW 1429 (CAL)

Nimai Kalindi v. State Of West Bengal

2011-11-21

KANCHAN CHAKRABORTY

body2011
JUDGMENT : - The applicant, i.e., Nimai Kalindi, the sole accused in Purulia G. R. Case No.549 of 2009 (Manbazar Police Station Case No.31 of 2009 dated 7.7.2009) has filed two revisional applications under caption. 2. By filing revisional application being C.R.R.4271 of 2009, the petitioner has challenged the legality, validity and propriety of the order dated 30.7.2009 passed by the learned Chief Judicial Magistrate, Purulia wherein the prayer of the I.O. of the case to add Section 376 of the I.P.C. on the basis of statement under Section 164 of the Code of Criminal Procedure of the victim girl was allowed. 3. The challenge in another revisional application being C.R.R.4272 of 2009 is legality, validity and propriety of the order dated 22.10.2009 passed by the learned Chief Judicial Magistrate, Purulia whereby bail granted to the petitioner earlier was cancelled. 4. Since the applications have been filed by the same person and the orders challenged in these revisional applications are arising out of same criminal prosecution, this Court proposes to dispose of both the applications by this common order. 5. On 7.7.2009 at about 6.30 hours, Manbazar Police Station received one F.I.R. from Sandhya Mahato. It was alleged therein that on 1.7.2009 at about 11.00 P.M. when she had been to attend nature’s call, the petitioner herein applied force on her and laid her on the ground. At that time one Kartick, the elder brother of husband of Sandhya appeared in the scene and the petitioner left the place. She lodged the F.I.R. on 7.7.2009 because her husband returned home on that date. On the basis of the said F.I.R., the Manbazar Police Station Case No.31 of 2009 was started under Section 354 of the I.P.C. The petitioner surrendered in Court on 13.7.2009 and he was enlarged on bail on the very date. On 24.7.2009, i.e., about 17 days after lodging of the F.I.R., the I.O. wanted to record the statement of the victim girl under Section 164 of the Cr.P.C. and, as such, made a prayer to that effect and that prayer of the I.O. was allowed by the learned Chief Judicial Magistrate. On 30.7.2009, the I.O. made another prayer for adding Section 376 of the I.P.C. to Section 354 of the I.P.C. on the basis of materials collected by him and the statement of the victim girl recorded under Section 164 of the Cr. On 30.7.2009, the I.O. made another prayer for adding Section 376 of the I.P.C. to Section 354 of the I.P.C. on the basis of materials collected by him and the statement of the victim girl recorded under Section 164 of the Cr. P. C. The learned Court allowed that prayer and Section 376 of the I.P.C. was added for the purpose of investigation. This order has been challenged in C. R. R.4271 of 2009. 6. Before investigation could conclude, the investigating officer also prayed for cancellation of bail and medical examination of the accused. That prayer was made on 6.8.2009. The learned Magistrate upon hearing of the learned Assistant Public Prosecutor appearing on behalf of the State of West Bengal and the learned Counsel for the petitioner was pleased to cancel the bail on 22.10.2009. That order has been challenged in C.R.R.4272 of 2009. 7. Mr. Sukanta Chakraborty, learned Counsel appearing on behalf of the petitioner contends that the learned Magistrate did not apply his judicial mind while passing the order dated 30.7.2009. Had the learned Magistrate applied his judicial mind, it would not have allowed the prayer for adding Section 376 of the I.P.C. to Section 354 of the I.P.C. for the purpose of investigation. 8. Mr. Ghosh, learned Counsel appearing on behalf of the State of West Bengal contends that since charge sheet has not been filed and the matter is still under investigation, no Court has any power to poke its nose into the matter of investigation. Therefore, the order dated 30.7.2009 cannot be said to be illegal and incorrect. 9. To be stated precisely, I find no substance in the contention of Mr. Chakraborty, learned Counsel appearing for the petitioner as far as the order dated 30.7.2009 is concerned. Question of applying judicial mind in such a case does not arise simply because Court cannot come in the way of the investigating officer in the matter of proper investigation of a case. It is true that the investigating officer could file charge sheet under Section 376 of the I.P.C. on conclusion of investigation on the basis of F.I.R. as the offence under Section 354 of the I.P.C. which is also cognizable offence. It is true that the investigating officer could file charge sheet under Section 376 of the I.P.C. on conclusion of investigation on the basis of F.I.R. as the offence under Section 354 of the I.P.C. which is also cognizable offence. But there is nothing wrong on the part of the I.O. to pray for adding the section in course of investigation for the purpose of collecting more evidence, such as, medical examination of the victim girl, medical examination of the accused, recording statement under Section 164 of the Cr. P. C., collecting wearing apparels and sending those for chemical examination. Therefore, when such a prayer is made, the learned Court allowed the prayer and in doing so, it did not commit any illegality and incorrectness. Therefore that order dated 30.7.2009 cannot be said to be passed illegally and incorrectly and, thus, is not required to be upset. 10. The revisional application being C.R.R.4271 of 2009 is dismissed. 11. However, the order dated 22.10.2009 appears to be a peculiar one. A Magistrate of First Class is lacking jurisdiction to exercise any power provided under Section 439 (2) of the Cr. P. C. That power has been given exclusively to the Court of the Sessions or a High Court. No doubt, the learned Magistrate exceeds its jurisdiction in canceling the bail by the order dated 22.10.2009. The learned Magistrate while canceling the bail passed earlier by it taken support the decisions as mentioned in the order itself. This Court find that the learned Magistrate misread or misused the principles laid down in those decisions. These decisions are relating to cases where a bail granted earlier is to be cancelled, of course, under Section 439 (2) of the Cr. P. C. The principles set out therein obviously are applicable in the matter of exercising power under Section 439 (2) of the Cr. P. C. by High Court or a Court of Sessions not by a Magistrate, First Class. 12. The order ex-facie shows that it was passed by a Court having no jurisdiction to pass such an order and the petitioner has rightly challenged the propriety and legality of the order dated 22.10.2009. 13. Mr. Ghosh, learned Counsel appearing on behalf of the State of West Bengal contends that this power can only be exercised by High Court or Court of Sessions. So, the learned Magistrate has made an error. 13. Mr. Ghosh, learned Counsel appearing on behalf of the State of West Bengal contends that this power can only be exercised by High Court or Court of Sessions. So, the learned Magistrate has made an error. He concedes to the submissions of Mr. Chakraborty, learned counsel appearing on behalf of the petitioner in this respect. 14. In the premises above, the order dated 22.10.2009 is set aside. The criminal revisional application being C.R.R.4272 of 2009 is allowed. 15. Both the revisional applications are disposed of. 16. There will be no order as to costs. 17. In view of the above order, no further order is required to be passed in the application being C.R.A.N.1750 of 2011. 18. The application being C.R.A.N.1750 of 2011 is also disposed of. 19. Urgent photostat certified copy of this order, if applied for, be given to the learned Counsel of the petitioner upon compliance of necessary formalities.