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2013 DIGILAW 154 (CAL)

Shankarlal Patel v. STATE OF WEST BENGAL

2013-03-14

MURARI PRASAD SHRIVASTAVA, PRANAB KUMAR CHATTOPADHYAY

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JUDGMENT Re: C.A.N. 9213 of 2012 1. This appeal has been preferred from the judgment and order dated 22nd June, 2012 whereby and whereunder a Learned Judge of this Court dismissed the writ petition on the ground of maintainability. The Learned Single Judge upon considering the submissions of the respective parties arrived at the conclusion that the appellant/petitioner herein has been perusing a parallel remedy by filing a writ petition. From the records, it appears that the learned Magistrate is considering the prayer of the appellant/petitioner for transferring the investigation to the Criminal Investigation Department, West Bengal. As a matter of fact, the Investigating Officer has submitted the final report which was not acceptable to the appellant/petitioner herein and, therefore, on the prayer of the appellant/petitioner herein the learned Magistrate directed further investigation by the Inspector-in-Charge, Uttarpara Police Station. 2. The Inspector-in-Charge, Uttarpara P.S. submitted a report which, according to the appellant/petitioner, cannot be said to be a proper report in relation to further investigation. 3. From the records, we find that the learned Magistrate instead of taking final decision on the basis of the aforesaid report filed by the Inspector-in-Charge, Uttarpara P.S. has repeatedly adjourned the hearing of the case. 4. The learned Magistrate, in our opinion, should have taken a decision in the matter upon considering the report of the Inspector-in-Charge, Uttarpara P.S. The learned Magistrate should not have adjourned the hearing of the matter repeatedly. 5. It is not in dispute that pursuant to the objection of the appellant/petitioner herein on the final report submitted by the concerned investigating officer, learned A.C.J.M. Serampore directed reinvestigation of the case by the Inspector-in-Charge, Uttarpara P.S. and the appellant/petitioner did not raise any objection to such reinvestigation by the I.C., Uttarpara. 6. We are therefore, of the opinion that the said Inspector-in-Charge, Uttarpara P.S. should be allowed to complete the reinvestigation pursuant to the earlier direction passed by the learned A.C.J.M., Serampore. 7. We are not clear whether the report submitted by the Inspector-in-Charge, Uttarpara P.S. before the learned A.C.J.M. on 27th January, 2011 is the report of the Investigating Officer after reinvestigation. It also appears that Inspector-in-Charge, Uttarpara P.S. filed an application on 31st January, 2012 before the learned Magistrate for fixing up a date to complete the inquiry and to submit a report before the learned Court. It also appears that Inspector-in-Charge, Uttarpara P.S. filed an application on 31st January, 2012 before the learned Magistrate for fixing up a date to complete the inquiry and to submit a report before the learned Court. Therefore, it is difficult to believe that on 27th January, 2011 formal report was filed by the Inspector-in-Charge, Uttarpara P.S. before the learned Magistrate after reinvestigation of the case. 8. From the certified copies of various orders passed time to time by the learned A.C.J.M., Serampore we find that Inspector-in-Charge, Uttarpara P.S. submitted an application before the learned A.C.J.M. praying for time and did not appear before the Court with case diary. 9. In this process the matter is pending for a considerable period and the learned A.C.J.M., Serampore has not taken any final decision in the matter. 10. Having heard the learned Advocate appearing for the parties and considering the facts of the case, we are of the opinion that further investigation of the aforesaid G.R. case as directed earlier by the learned A.C.J.M., Serampore should be completed and a report should also be submitted by the Inspector-in-Charge, Uttarpara P.S. without any further delay. 11. In the aforesaid circumstances, we direct the learned A.C.J.M. Serampore to ensure completion of reinvestigation by the Inspector-in-Charge, Uttarpara Police Station and filing of the formal report of such reinvestigation at an early date but positively on or before 30th April, 2013. 12. Needless to mention that after submission of the reinvestigation report by the Inspector-in-Charge, Uttarpara P.S. Ld. A.C.J.M. Serampore will take appropriate decision in accordance with law. 13. With regard to the maintainability, we are not in agreement with the Learned Single Judge as we are of the opinion that a citizen is entitled to approach the Writ Court in the event proper investigation has not been conducted by the investigating agency under the supervision of the Criminal Court notwithstanding the fact that the learned Magistrate is in seisin of the matter. 14. The agony of a citizen for conducting fair and proper investigation cannot be ignored by the Writ Court. 15. In the event the Writ Court is satisfied that for the sake of proper investigation, the investigating agency should be changed and a proper investigating agency should be engaged, then appropriate order in this regard can be passed by the Writ Court. 16. 15. In the event the Writ Court is satisfied that for the sake of proper investigation, the investigating agency should be changed and a proper investigating agency should be engaged, then appropriate order in this regard can be passed by the Writ Court. 16. The Constitution Bench of the Hon'ble Supreme Court in the case of State of West Bengal vs. Committee for Protection of Democratic Rights reported in (2010) 3 SCC 571 has considered the aforesaid issue and affirmed the earlier decision of the Hon'ble Supreme Court in the case of Minor Irrigation & Rural Engg. Services U.P. vs. Sahngoo Ram Arya reported in (2002) 5 S.C.C. 521 . 17. The relevant extracts from the aforesaid decision of the Hon'ble Supreme Court in the State of West Bengal vs. Committee for Protection of Democratic Rights (supra) are set out hereunder: 71. In Minor Irrigation & Rural Engg. Services, U.P. vs. Sahngoo Ram Arya this Court had said that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose prima facie case calling for an investigation by CBI or any other similar agency. We respectfully concur with these observation. 18. With the aforesaid observations and directions, we dispose of both the application as well as the appeal upon treating the said appeal as on day's list by setting aside the impugned order under appeal passed by the Learned Single Judge. 19. However, we also make it clear that all allegations levelled against the respondents No. 6 and 7 herein should not be deemed to be admitted since no affidavit-in-opposition has been filed on behalf of the said respondents. 20. In the facts of the present case, there will however, be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the parties as early as possible.