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2019 DIGILAW 109 (CAL)

NOOR ALAM KHAN @ GUDDU v. STATE OF WEST BENGAL

2019-01-22

MD MUMTAZ KHAN

body2019
JUDGMENT : MD. MUMTAZ KHAN, J. 1. This is an application under Section 482 of the Code of Criminal Procedure filed by the petitioner/accused person assailing the order of dismissal of Criminal Revision No.57 of 2018, dated July 30, 2018 passed by the learned Additional Sessions Judge,3rd Court, Asansole preferred against the order dated May 4, 2018 passed by the learned Additional Chief Judicial Magistrate, Asansol in G.R. Case No. 469 of 2016 arising out of Asansol (South) Police Station Case No. 83 of 2016 dated February 20, 2016 under Sections 419/420/467/468/ 471/120B IPC thereby allowing the prayer of the investigating officer to take photograph of the petitioner/accused person. 2. The facts leading to the instant revision is that on February 20, 2016 one written complaint was submitted by the Branch Manager, Canara Bank, Asansol Branch before the officer in charge, Asansol (South P.S.) against one Pappu Singh and Balaram Dutta, Account holders, for making fraudulent transactions by using different names and wrong telephone calls. Accordingly, FIR was drawn up under Sections 419/420/467/468/ 471/120B IPC against them and investigation was taken up by the CID, West Bengal. During investigation it was found that the petitioner in the name of Pappu Singh opened the account in question, some documents, like account opening forms etc. were seized. Petitioner who was detained in custody in connection with offence of similar charges was taken into custody in connection with this case as being the accused Pappu Singh. On May 4, 2018 investigating officer made a prayer before the learned ACJM, Asansol praying for permission for taking photograph of the petitioner/accused person for comparison with the seized affixed photograph of the account opening form in the name of Pappu Singh by the expert of CFSL, Kolkata to ascertain as to whether the said Pappu Singh and this petitioner Noor Alam Khan @ Guddu are the same person or not. Accordingly, learned Magistrate allowed the said prayer of the investigating officer and directed the sureties to produce the accused before the investigating officer for the above purpose. 3. Being aggrieved by the same, petitioner preferred revision being criminal revision no. 57 of 2018 before the court of Sessions which was dismissed on July 30, 2018 by the impugned order. 4. Mr. 3. Being aggrieved by the same, petitioner preferred revision being criminal revision no. 57 of 2018 before the court of Sessions which was dismissed on July 30, 2018 by the impugned order. 4. Mr. Avik Ghatak, learned advocate appearing for the petitioner submitted that the learned Magistrate without granting any opportunity of hearing to the accused allowed the prayer of the I.O. for taking photograph of the petitioner which has caused prejudice to the accused/petitioner. According to Mr. Ghatak petitioner has the right to refuse to give his photograph and can not be compelled to give his photograph. He further submitted that police has the ample authority to take the photograph without making any such prayer before the Magistrate as per the provisions of Section 4 of the Identification of the Prisoners Act, 1920 but when he has approached the Magistrate for such purpose, then the Magistrate having power to order taking photograph of the accused, as per provisions of Section 5 of the said Act, in doing so must record his satisfaction and indicate the time and place for the photograph to be taken but the order of the Magistrate is completely silent in this regard. According to Mr. Ghatak, when the statute has given power to do certain things in certain manner it has to be done in that way. But the learned Magistrate has not complied that mandatory provisions of law and the learned Sessions Judge has also overlooked that aspect as such the both the orders passed by the learned Sessions Judge as also the Magistrate are liable to be quashed. 5. Mr. Ghatak relied on the decisions of Hussein Ghadially and Ors. Vs. State of Gujarat reported in, (2014) 8 SCC 425 , Dhanajaya Reddy Vs. State of Karnataka reported in, (2001) 4 SCC 9 , Rakesh Bisht Vs. Central Bureau of Investigation reported in, (2007) 1 ILR(Del) 223 and Thavaraj Pandian and Ors. Vs. State (Madras High Court) reported in, (2003) CriLJ 2642 in support of his submissions. 6. Learned advocate appearing for the state Mr. State of Karnataka reported in, (2001) 4 SCC 9 , Rakesh Bisht Vs. Central Bureau of Investigation reported in, (2007) 1 ILR(Del) 223 and Thavaraj Pandian and Ors. Vs. State (Madras High Court) reported in, (2003) CriLJ 2642 in support of his submissions. 6. Learned advocate appearing for the state Mr. Ayan Basu submitted that this petitioner used to operate several fake on the bank account in different names affixing his photographs in account opening forms which were seized during investigation and as such for the purpose of comparison of his photographs with the photographs affixed on the accounts opening form were very much required and as such the I.O. made a prayer for taking photographs of the accused petitioner. According to Mr. Basu, it is the discretion of the investigating officer to proceed with the investigation in his own way and the accused petitioner has no right to say in the matter of investigation and as such question of prejudice to the accused does not arise. He further submitted that the learned Magistrate after considering the prayer of the investigating officer and on being satisfied passed the order for taking photograph of the accused and directed the sureties to produce the accused before the I.O. for the purpose of taking photograph and there was no irregularity in the same. According to Mr. Basu, the Sections of the Identification of Prisoners Act, 1920 referred to by the learned advocate for the petitioners are all enabling sections and are not necessarily to be followed in toto and further that non-mentioning of the place and the time by the learned Magistrate will not render the order invalid. According to Mr. Basu the decisions relied on by the petitioner are not applicable in the facts and circumstances of the case. 7. I have considered the submissions of the learned advocate appearing for the respective parties and gone through the materials on record including the order impugned. 8. Admittedly, FIR was lodged by Branch Manager, Canara Bank, Asansol Branch against A/c holders Pappu Singh and another for making fraudulent transactions by using different names. 7. I have considered the submissions of the learned advocate appearing for the respective parties and gone through the materials on record including the order impugned. 8. Admittedly, FIR was lodged by Branch Manager, Canara Bank, Asansol Branch against A/c holders Pappu Singh and another for making fraudulent transactions by using different names. Evidently, during investigation account opening form having photograph in the name of the Pappu Singh was seized and as such for the purpose of comparison of the photograph appearing on the seized account opening form in the name of Pappu Singh with the photograph of the petitioner to be taken prayer was made by the investigating officer before the Magistrate. No doubt, the allegation made in the FIR is of a very serious in nature and the case is at the investigation stage. It is evident from the copy of the application (Annexure P/2 at page-6 of the Supplementary Affidavit) that the investigating officer duly assigning the reason for which the photograph of the accused was required to be taken made the prayer before the learned Additional Chief Judicial Magistrate, Paschim Burdwan which was allowed by the Additional Chief Judicial Magistrate on May 5, 2018. The plea of prejudice as claimed by the accused in not giving him an opportunity of hearing has no leg to stand as accused has no right of say in the matter of investigation nor even the court can interfere in the investigation as it is the statutory right of the police how and in what manner to investigate a cognizable offence. 9. Section 5 of The Identification of Prisoners Act, 1920 empowers the Magistrate of 1st class to order any person, who must at some time been arrested in connection with such investigation or proceeding, to be photographed for the purpose of any investigation or proceeding under the Code of Criminal Procedure if he is satisfied that it is expedient and in that case the person so ordered shall be produced or shall attend at the time and the place specified in the order. 10. The order allowing prayer of the investigating officer for taking photograph of the accused is conspicuously silent with regard to recording of satisfaction by the Magistrate as also the date/time and place the accused shall attend. 10. The order allowing prayer of the investigating officer for taking photograph of the accused is conspicuously silent with regard to recording of satisfaction by the Magistrate as also the date/time and place the accused shall attend. Furthermore, the prayer of the investigating officer was for direction upon the surety of the accused to produce him before court on the date fixed for taking his photograph by the expert photographer of CID, West Bengal in presence of the Magistrate but the order speaks of direction upon the surety to produce the accused before the I.O. which is contrary to the prayer. This has escaped the attention of the learned Sessions Judge. It is settled principles of law that when the statute has given power to do certain things in certain manner it has to be done in that way. The order of the Magistrate seems to have been passed mechanically without application of judicial mind. There is irregularity in the order of the Magistrate which has occasioned a failure of justice. As such the same is liable to be set aside. 11. Accordingly, the instant revision stands allowed. 12. The impugned order dated May 4, 2018 passed by the learned Additional Chief Judicial Magistrate, Asansol in G.R. Case No. 469 of 2016 is, therefore, set aside. 13. Learned Magistrate is directed to consider the prayer of the investigating officer afresh and dispose of the same in accordance with law as early as possible. 14. Copy of this judgment along with the lower court records be sent down to the trial court immediately by special Messenger for information and taking necessary action. 15. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.