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2016 DIGILAW 221 (CAL)

Sayantan Chatterjee v. State of West Bengal

2016-02-29

RANJIT KUMAR BAG

body2016
JUDGMENT : RANJIT KUMAR BAG, J. 1. The petitioner has preferred this revision under Article 227 of the Constitution of India read with Section 401 and Section 482 of the Code of Criminal Procedure challenging the order dated August 24, 2015 passed by learned Chief Judicial Magistrate, Barasat in connection with New Town Police Station Case No. 332 of 2014 under Sections 279/304A/337/427 of the Indian Penal Code and also under Section 304 of the Indian Penal Code. 2. It appears from the materials on record that the opposite party no. 2 filed a written complaint before the Inspector-in-Charge of New Town Police Station on the basis of which New Town Police Station Case no. 332 of 2014 under Sections 279/304A/337/427 of the Indian Penal Code came into existence. It further appears from record that on February 5, 2015 the Investigating Officer submitted charge-sheet against the petitioner on completion of investigation. On June 25, 2015, learned Magistrate gave direction for further investigation on the basis of prayer of defacto complainant, that is the opposite party no. 2. On August 24, 2015, learned Magistrate granted permission to the Investigating Officer to add Section 304 of the Indian Penal Code along with the original penal Section of the Code. This order is under challenge in this revision. 3. Mr. Sekhar Kumar Basu, learned senior counsel appearing on behalf of the petitioner contends that the order of the Magistrate is not supported by reasons and the order is non-speaking order, which is against the judicial propriety. Mr. Basu specifically submits that permitting the Investigating Officer to add aggravated penal Section is a threat to the personal liberty of the petitioner, because the scope of investigation is widened and the Investigating Officer may arrest the petitioner at any time during further investigation of the case. The gist of submission made by Mr. Basu is that learned Magistrate has passed the order in a mechanical way without proper application of mind and without considering the materials available in the case diary and thereby the petitioner is highly prejudiced. 4. Mr. Ayan Basu, learned counsel for the State contends that the accused has no right to assail the order of adding charge under Section 304 Part II of the Indian Penal Code by learned Magistrate on the basis of prayer of the Investigating Officer. 4. Mr. Ayan Basu, learned counsel for the State contends that the accused has no right to assail the order of adding charge under Section 304 Part II of the Indian Penal Code by learned Magistrate on the basis of prayer of the Investigating Officer. He further argues that the Investigating Officer need not take permission from the Magistrate to proceed against the petitioner for any aggravated penal offence during further investigation of the case. He also submits that the materials available in the case diary justify the action on the part of the Investigating Officer to proceed against the petitioner for aggravated penal offence punishable under Section 304 of the Indian Penal Code. He has relied on the decision of the Supreme Court in Alister Anthony Pareira vs. State of Maharashtra, (2012) 2 SCC 648 in support of his contention that Section 304 of the Indian Penal Code can be added in some exceptional cases of rash and negligent driving causing death. 5. Mr. Phiroze Edulji, learned counsel for the opposite party no. 2 has supported the submission made by learned counsel for the State and submits that the Investigating Officer may proceed against the petitioner for the offence under Section 304 of the Indian Penal Code during further investigation of the case. 6. On perusal of the impugned order under challenge in the revision, I find that learned Magistrate has granted permission to the Investigating Officer to add Section 304 of the Indian Penal Code along with original penal Section of the Code without assigning any reason. I fully agree with the submission made by Mr. Basu, learned senior counsel for the petitioner that every judicial order must be supported by reasons. Now, the question for consideration of this Court is whether the order passed by learned Magistrate is liable to be set aside for not disclosing the reasons for adding Section 304 of the Indian Penal Code along with original penal Section of the Code. Before making any observation in connection with the order passed by learned Magistrate I would like to point out that rash and negligent driving of a vehicle on public road may attract the penal provision of Section 304 Part II of the Indian Penal Code depending on facts and circumstances of a particular case. Before making any observation in connection with the order passed by learned Magistrate I would like to point out that rash and negligent driving of a vehicle on public road may attract the penal provision of Section 304 Part II of the Indian Penal Code depending on facts and circumstances of a particular case. It is relevant to quote paragraph 41 of Alister Anthony Pareira vs. State of Maharashtra, (2012) 2 SCC 648 , which is as follows: “41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law - in view of the provisions of the IPC - the cases which fall within the last clause of Section 299 but not within clause “Fourthly” of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and my entail punishment under Section 304 Part-II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.” It is also relevant to quote paragraph 47 of the said Report, which is as follows: “47. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304-A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrongdoer to cause death, offence may be punishable under Section 302 IPC.” 7. I would like to make it clear that I have not gone into the merit to decide whether the petitioner can be indicted for the offence under Section 304 Part II of the Indian Penal Code in the instant case. I would like to make it clear that I have not gone into the merit to decide whether the petitioner can be indicted for the offence under Section 304 Part II of the Indian Penal Code in the instant case. The trial court will ultimately decide on conclusion of investigation whether the petitioner will be prosecuted for the offence under Section 304 Part II of the Indian Penal Code. I refrain myself from making any observation whether the petitioner is liable to be prosecuted for the offence under Section 304 Part II of the Indian Penal Code at this stage of further investigation of the case. 8. In the instant case, the investigation commenced for the offence under Sections 279/304A/337/427 of the Indian Penal Code on the basis of the written complaint filed by the opposite party no. 2, who happens to be the father of the deceased. On June 25, 2015 learned Magistrate gave direction for further investigation of the case. If the Investigating Officer has collected sufficient materials during further investigation to proceed against the petitioner for the offence under Section 304 Part II of the Indian Penal Code, it is the duty of the Investigating Officer to inform learned Magistrate of the subsequent development to justify the action of proceeding against the petitioner for the offence punishable under Section 304 Part II of the Indian Penal Code. There is no requirement of law to obtain permission from learned Magistrate by the Investigating Officer for proceeding against the accused person in connection with aggravated penal offence during course of further investigation. This Court is not oblivious of the fact that the investigation is the exclusive domain of the police. It is true that the order of learned Magistrate is not supported by reasons. Since there is no requirement of law to obtain permission of learned Magistrate by the Investigating Officer to proceed against the petitioner for the offence under Section 304 Part II of the Indian Penal Code, I am not inclined to set aside the order on the ground that the said order is not supported by reasons. 9. Since there is no requirement of law to obtain permission of learned Magistrate by the Investigating Officer to proceed against the petitioner for the offence under Section 304 Part II of the Indian Penal Code, I am not inclined to set aside the order on the ground that the said order is not supported by reasons. 9. With regard to the submission made on behalf of the State that the accused has no right to assail the order of adding any penal Section by Investigating Agency during investigation of the case, I am of the view that the accused may not have any right of audience before the court of learned Magistrate during course of investigation of the case, but the accused can very well challenge any order of learned Magistrate before higher forum if the said order curtails the liberty of the accused without following the procedure of law. In view of my above findings, I would like to hold that the petitioner has right to challenge the order passed by learned Magistrate by adding Section 304 Part II of the Indian Penal Code during course of further investigation of the case. 10. In view of the observations made by me hereinabove, I would like to modify the order passed by learned Magistrate. It is pertinent to point out that I have gone through the materials available in the case diary, but I refrain from making any observation on the materials available in the case diary at this stage of further investigation of the case, because the same may cause prejudice to either of the parties. However, the impugned order dated August 24, 2015 passed by learned Chief Judicial Magistrate, Barasat in connection with New Town Police Station Case no. 332 of 2014 is modified to the extent that the Investigating Officer is at liberty to proceed against the petitioner for the offence under Section 304 Part II of the Indian Penal Code during further investigation of the case. With the above modification of the order under challenge in the revision, the criminal revision is disposed of. 11. It is brought to the notice of this Court by learned counsel for the opposite party no. With the above modification of the order under challenge in the revision, the criminal revision is disposed of. 11. It is brought to the notice of this Court by learned counsel for the opposite party no. 2 that learned Magistrates usually grant permission to the Investigating Officers to add any penal section during investigation of the criminal case, though it is decided by this Court that it is the duty of the Investigating Officer to inform learned Magistrate of the subsequent development of investigation to justify the action of proceeding against any person for higher penal section during investigation of the case. Accordingly, learned Registrar General is requested to circulate copy of this judgment to all courts of learned Chief Judicial Magistrates, learned Additional Chief Judicial Magistrates and learned Judicial Magistrates of West Bengal and Andaman and Nicobar Islands for favour of information and guidance.