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2012 DIGILAW 384 (CAL)

Rangina Bewa v. STATE OF WEST BENGAL

2012-04-30

PRASENJIT MANDAL

body2012
Judgment Prasenjit Mandal, J. 1. THIS application is at the instance of the de facto complainant and is directed against the Order dated June 9, 2011 passed by the learned Additional Chief Judicial Magistrate, Alipore in respect of Maheshtala Police Station Case No.723(11)10 under Section 326/34 of the Indian Penal Code thereby dismissing an application under Section 173(8) of the Code of Criminal Procedure, 1973. 2. THE petitioner lodged an ejahar with the Maheshtala Police Station on November 10, 2010 to the effect that on November 6, 2010 at about 10 A.M. when Sk. Gahar was returning from nature's call, accused Sk. Saidul and others attacked him over the dispute of the daily rate of masons. Such dispute was raised on the previous day and as a consequence of November 6, 2010 the accused persons attacked Sk. Gahar with 'Sword' and 'Tangi', etc. causing injury on his back. When Sk. Yasin and others rushed to the spot to save Gahar, they were also attacked and Yasin was also injured on his head by the accused persons. Over such incident, the petitioner lodged an ejahar with the Police Station. Accordingly, Police started the aforesaid Police Station case and upon completion of the investigation, submitted charge-sheet under Section 341/324/506/34 of the IPC. Accordingly, the concerned Magistrate took cognizance of the offence and thereafter, the petitioner filed an application for re-investigation of the case under Section 173(8) of the Criminal Procedure Code (in short, 'Cr. P.C.') and that application was rejected by the learned Trial Judge. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained or an order for further investigation should be directed. 3. UPON hearing the learned Counsel for the parties and on perusal the materials-on-record, I find that the above facts are not in dispute. The learned Trial Judge has taken cognizance of the offence under the aforesaid Sections over the ejahar of the petitioner. Now, as per provisions of the Cr. P.C, the concerned Magistrate is to proceed with the trial of the said case being renumbered as BGR 6234 of 2010. The ground of rejection as recorded by the learned Magistrate is that the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8). P.C, the concerned Magistrate is to proceed with the trial of the said case being renumbered as BGR 6234 of 2010. The ground of rejection as recorded by the learned Magistrate is that the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8). The concerned Magistrate has also recorded that if the de facto complainant is not satisfied with the charge-sheet filed, there is a provision for proceeding against other persons appearing to be guilty of an offence and the concerned Magistrate can proceed against such person for the offence which he appears to have committed an offence. 4. MR. Mainak Bakshi, learned Counsel appearing for the petitioner has contended that the learned Magistrate did not apply his mind properly as to the provision of Section 173(8) of the Cr. P.C. Though, the charge-sheet had been submitted earlier but investigation had not been done properly. Even the victims have not been examined and they have not been shown as witness in the charge-sheet and as such, the concerned Court was within its competence to order for further investigation in respect of the offence as per complaint. On the other hand, Mr. Suman Sankar Chatterjee, learned Counsel appearing for the accused persons has submitted that since further investigation is not initiated by the Investigating Agency but the de facto complainant according to the decision of Reeta Nag v. State of West Bengal and Ors. reported in (2009)2 C. Cr. L.R. (SC) 820 reinvestigation cannot be directed at the instance of the de facto complainant. 5. MR. Chaterjee has also referred to the decision of Adalat Prasad v. Rooplal Jindal and Ors. reported in 2004(7) Supreme Court Cases 338 and thus, he submits that since there is no such provision for further investigation at the instance of the de facto complainant, the prayer should be rejected. He has also stated that the said decision, the decision in Mathew case, (1992)1 SCC 217 has been over-ruled holding that the said decision does not lay down the correct law. 6. HE has next referred to the decision of Bhagwant Singh v. Commissioner of Police and Anr. He has also stated that the said decision, the decision in Mathew case, (1992)1 SCC 217 has been over-ruled holding that the said decision does not lay down the correct law. 6. HE has next referred to the decision of Bhagwant Singh v. Commissioner of Police and Anr. reported in 1985(2) Supreme Court Cases 537 and thus, he submits that if the Court takes cognizance on the basis of the report submitted the police after investigation under Section 173(2)(i) and if no notice is given to the de facto complainant at the time of taking cognizance, the order passed by the concerned Court will not be invalid when the report has been properly considered by the Court. Lastly, Mr. Chatterjee has also referred to the decision of Shanker Raju v. Union of India reported in 2011(2) Supreme Court Cases 132 and thus, he submits that the judgment which has been held the field for a long time should not be unsettled, the logic of the doctrine is to maintain consistency and avoid uncertainty. Therefore, the guiding principle which has been followed for a long time should not be disturbed only because another view is possible. Thus, Mr. Chatterjee supports the impugned order. 7. HAVING considered the above facts and circumstances and the decisions referred to, I am of the view that the decision of Reeta Nag(supra) governs the field when the charge-sheet has been filed by the Investigating Agency and cognizance thereon has been taken up by the concerned Court. In order to appreciate the ratio of the decision of Reeta Nag(supra), the paragraph No.26 and 27 of the said decision which were quoted by the concerned Court are also quoted herein for proper appreciation of the matter. "26............... In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de-facto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigating on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant. 27. ............... As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigating on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant. 27. ............... Since no application has been made by the investigating authorities for conducting further investigating as permitted under Section 173(8), Cr. P.C., the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the examination of the witnesses during the trial." 8. THE other decisions referred to are also involved accepting the ratio decided in Reeta Nag case (supra) as discussed above. In that view of the matter, I am of the opinion that the learned Court is perfectly justified in rejecting the prayer for further investigation in the matter. THE impugned order does not suffer from perversity, illegality or impropriety. Accordingly, there is no scope of interference with the impugned order. THE application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.