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2016 DIGILAW 1074 (CAL)

Mira Halder v. State of West Bengal

2016-12-23

DEBI PROSAD DEY

body2016
Debi Prosad Dey, J. : 1. The complainant being one of the partners of M/s. New Southern Electric, having its office and place of business at 184A, Shyama Prasad Mukherjee Road, Police Station- Tollygunge, Kolkata-700026, has filed a petition of complaint against the present petitioner and others on the ground that the present petitioner in collusion with the petitioner nos.2 to 6 broke open the padlock of the said room situated at 184A, Shyama Prasad Mukherjee Road, Police Station-Tollygunge, Kolkata-700 026 and took away one Generator, 50 pieces of ceiling fan valued at Rs.75,000/- without consent and knowledge of the complainant and taking advantage of absence of the complainant from Kolkata. The alleged occurrence took place on 25th March, 2009. The complainant lodged a petition of complaint before the Learned Chief Judicial Magistrate at Alipore on such allegation and the matter was taken up by Learned Judicial Magistrate, 3rd Court at Alipore. After examination of the complainant and his witnesses the learned trial Court directed that the matter should be investigated by the Police under Section 202 of the Code of Criminal Procedure and after having such report from the Police the learned Magistrate issue summon under Section 379/406/34 of the Indian Penal Code against all the petitioners. 2. Challenge in this revisional application is the entire complaint case being C. Case No.2538/2009. Learned advocate appearing on behalf of the petitioners-submitted that in fact no offence could be made out from such report of the Police and he handed over the certified copy of such report to the Court for perusal. On careful scrutiny of such report it transpires that the Investigating Officer did not find any case under Section 379 of the Indian Penal Code in view of the fact that the petitioner no.1 is the partner of the said firm and that the local witnesses did not support the case of the complainant regarding removal of such properties from the tenanted premises. On the other hand, the tenanted premises stands in the name of the husband of the petitioner no.1. In that view of this case the report of the Police Officer clearly established that Police did not find any case under Section 379 of the Indian Penal Code. On the other hand, the tenanted premises stands in the name of the husband of the petitioner no.1. In that view of this case the report of the Police Officer clearly established that Police did not find any case under Section 379 of the Indian Penal Code. It transpires from such report that the Investigating Officer took leave of the Court for further investigation to find out if any case under Section 406 has been made out by such petition of complaint. At the time of hearing learned advocate appearing on behalf of the opposite party no.2 fairly submitted that the petition of complaint is bereft of any ingredients under Section 406 of the Indian Penal Code. Accordingly, such leave of the Investigating Officer to investigate about the case under Section 406 of the Indian Penal Code appears to be misnomer. Learned Magistrate by his order dated 16.12.2009 issued summon against all the petitioners stating, inter alia, that a prima facie case has been made out by such report of the Investigating Officer under Section 379/406/34 of the Indian Penal Code against all the petitioners. It is apparent from such report that no case has been made out under Section 379 of the Indian Penal Code and the Investigating Officer has prayed for leave for further investigation with regard to the offence under Section 406 of the Indian Penal Code. 3. Learned Advocate appearing on behalf of the petitioner submitted that the petitioner being one of the partners of such company cannot be roped in a case under Section 379 of the Indian Penal Code and accordingly the petitioner shall not be made liable for any offence under Section 406 of the Indian Penal code. It is further submitted that learned Magistrate did not look into the case of the petitioner at the time of issuance of summons and learned Magistrate did not even consider properly the report of the police officer submitted in terms of the direction of learned Magistrate. It is further submitted that learned Magistrate did not look into the case of the petitioner at the time of issuance of summons and learned Magistrate did not even consider properly the report of the police officer submitted in terms of the direction of learned Magistrate. Learned Advocate appearing on behalf of the petitioner further contended that learned Magistrate ought to have dismissed the case under Section 203 of the Code of Criminal Procedure since the police officer did not find any materials under Section 379 of Indian Penal Code at the time of investigation and the police officer had only prayed for leave of the Court to further investigate with regard to the offence under Section 406 of the Indian Penal Code. Therefore the entire case ought to be quashed only on the ground that learned Magistrate did not adhere to the report of the police officer at the time of issuance of summons. 4. Learned Advocate appearing on behalf of the opposite party/complainant contended that the factual aspect and the disputed facts cannot be looked into by the High Court at the time of deciding a case under Section 482 of the Code of Criminal Procedure in view of the law laid down by the Hon’ble Supreme Court. It is further contended that High Court should not assume the role of a trial Court and embark upon an enquiry to ascertain reliability of the evidence and sustainability of the accusation on a reasonable appreciation of such evidence. In support of his contention learned Advocate appearing on behalf of the complainant/opposite party has relied on the decision reported in (2015) 14 SCC 559(S. Krishnamoorthy Vs. Chellammal) and (2002) 3 SCC 89 (State of Karnataka Vs. N. Devendrappa & Anr.). 5. It is true that in view of such decision of the Hon’ble Supreme Court, the High Court cannot look into the factual scenario as well as the disputed facts at the time of deciding matter under Section 482 of the Code of Criminal Procedure. It is equally true that the High Court cannot take the role of a trial Court and sift the evidences on record in order to come to a finding that the case is maintainable or not maintainable in view of the evidences on record adduced by the complainant. It is equally true that the High Court cannot take the role of a trial Court and sift the evidences on record in order to come to a finding that the case is maintainable or not maintainable in view of the evidences on record adduced by the complainant. The main thrust in the instant case is the discretion exercised by the learned Magistrate at the time of issuance of summons against the present petitioners. It is needless to say that once the Magistrate being dis-satisfied with the materials produced by the complainant decided to send the matter to police or any other agency for investigation in order to find out the veracity/ truthfulness in the case of the complainant, the Magistrate is bound to respect the result of such investigation conducted by the police or any other agency. In the case under reference, it is apparent from the report of the police officer that the police officer did not find any material under Section 379 of Indian Penal Code against the present petitioners. It is also apparent from the report of the police officer that the police officer prayed for leave of the Court for further investigation in order to find out any material for the offence under Section 406 of the Indian Penal Code. I fail to understand as to how learned Magistrate was satisfied on the basis of such report of the police officer and thereafter issued summons under Section 379/406 of the Indian Penal Code against all the petitioners on the strength of such report of the police officer. It is apparent on the face of the record that the materials produced by the complainant were not sufficient in the estimation of learned Magistrate so as to issue process against the petitioners. Thereafter the learned Magistrate sent the matter for investigation by the police officer and the police officer also did not find any material against the present petitioner under Section 379/406 of Indian Penal Code. That goes to show that the order of issuance of summons against the present petitioner is not in consonance with the merit of the report submitted by the investigating officer and as such I find sufficient merit to quash the entire petition of complaint which is the outcome of malafide intention and wreaking vengeance against another person. Accordingly, the petition of complainant being C case no. 2538 of 2009 is quashed. Accordingly, the petition of complainant being C case no. 2538 of 2009 is quashed. The consequential orders passed in such C case no. 2538 of 2009 are accordingly quashed. Petition under Section 482 read with Section 401 of the Code of Criminal Procedure is allowed. 6. Let the reports submitted by the investigating officer in connection with C case no. 2538 of 2009 be kept on the record. 7. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.