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2020 DIGILAW 189 (CAL)

Ratan Lal Saxena v. State Of West Bengal

2020-02-11

MADHUMATI MITRA

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JUDGMENT Madhumati Mitra, J. - Petitioners have challenged the order impugned dated 10.07.2012 passed by the Learned Additional Chief Judicial Magistrate, Serampore in connection with Uttarpara Police Station Case No.16 of 2006 dated 17.02.2006, corresponding to G.R. Case No. 60/06 under Sections 419/420/406/467/468/471/120B of the Indian Penal Code. 2. By the impugned order dated 10.07.2012 Learned Magistrate directed further investigation of the above mentioned case through the D.I.G., C.I.D., Bhawani Bhawan. 3. Facts which are essential to dispose of the Revisional Application may be narrated as under:- The land relating to the premises No.105/1, R.S. Verma Road originally belonged to one Krishna Lal Verma and Kanaklata Saxena who happened to be the father and elder sister-in-law of the present petitioners and opposite party no.2. After the death of said Krishna Lal Verma, the petitioners, opposite party no.2 and other legal heirs inherited his share in respect of the said property and became co-sharers. Apartments and one nursing home were constructed on the said land. 4. Present opposite party no.2 being the elder brother of the petitioners and son of said Krishna Lal Verma filed a petition of complaint under Section 156(3) of the Code of Criminal Procedure before the Learned Magistrate and on the basis of said petition of complaint, Uttarpara Police Station Case No.16 of 2006, dated 17.02.2006, under Sections 419/420/406/468/471/120B of the Indian Penal Code was initiated against the present petitioners. 5. At page 5 of the present application, it has been stated that in the said petition of complaint it was alleged that petitioner no.1 had hatched up a conspiracy with the other petitioners and got a Power of Attorney executed by the opposite party no.2 in favour of petitioner no.1. On the strength of said Power of Attorney, the portion of the land belonging to the opposite party no.1 appertaining to premises no.105/1, R.S. Verma Road was transferred by a registered deed of lease in favour of Smt. Preeti Saxena, the wife of the petitioner no.1 who happened to be the Director of the Nursing Home established on the said premises under the name and style Arogya Niketan (P) Limited. 6. Initially, the Magistrate had refused to direct the officer-in-charge of the Police Station to treat the same as an First Information Report. 6. Initially, the Magistrate had refused to direct the officer-in-charge of the Police Station to treat the same as an First Information Report. Then the opposite party no.2 had approached before the High Court by preferring a Revisional Application being no.3256 of 2005 and the High Court set aside that order of refusal to treat the petition of complaint as an F.I.R. The Magistrate was directed to hear the matter afresh. Thereafter, the Learned Magistrate on 08.02.2006 directed for registration of the said petition of complaint as F.I.R. and for investigation into the allegations contained in the said petition of complaint. 7. On 08.07.2006 the investigating agency submitted the report in final form. In the said report it was stated that the alleged power of attorney could not be recovered and also mentioned that the petitioner no.1 lodged a general diary stating that the said power of attorney had been lost. 8. Opposite party no.2 filed an application before the Learned Magistrate praying for further investigation of the matter. The Learned Magistrate on 19.10.2006 directed further investigation of the case. Again on 23.02.2007 the investigating agency submitted report in final form mentioning that the dispute between the parties was in civil nature. 9. Another protest petition was filed by opposite party praying for further investigation. On 08.06.2007 the Learned Magistrate directed for further investigation. On 05.10.2007 the investigating agency again submitted report in final form. Opposite party no.2 once again filed protest petition on 29.11.2008. The investigating officer this time also submitted report in final form. Again the opposite party no.2 submitted protest petition against the final report submitted by the investigating agency. The Learned Magistrate has directed D.I.G., C.I.D. to hold further investigation on the basis of the prayer made by opposite party no.2/defacto complainant. 10. The order dated July 10, 2012 passed by the Learned Magistrate giving direction to the D.I.G., C.I.D. to hold further investigation is under challenge and subject matter of the present revisional application. 11. During the course of hearing, Learned Counsel appearing for the petitioners has assailed the impugned order on the ground that the impugned order has been passed by the Learned Magistrate without application of mind and without going through the materials placed in the case diary. 11. During the course of hearing, Learned Counsel appearing for the petitioners has assailed the impugned order on the ground that the impugned order has been passed by the Learned Magistrate without application of mind and without going through the materials placed in the case diary. According to his contention before issuance of direction to the D.I.G., C.I.D. for further investigation the Learned Magistrate ought to have considered the factual aspects of the present case. It has been strongly contended by the Learned Counsel for the petitioners that prior to impugned order, on four occasions the investigating agency had submitted report in final form. He has laid emphasis on the facts that on each and every occasion the report submitted by the investigating agency had been challenged by filing protest petition and prayed for further investigation by the opposite party no.2/defacto complainant. According to his contention the allegations contained in the FIR had been thoroughly investigated by the investigating agency on four occasions and the allegations contained in the FIR were not substantiated during investigation. As a result on each occasion the investigating agency had no other alternative but to submit report in final form. 12. The Learned Counsel appearing for the petitioners has challenged the legality of the impugned order passed by the Learned Magistrate on the ground that the Learned Magistrate has no authority to pass an order for further investigation of a case under Section 173(8) of the Code of Criminal Procedure as such power is only vested in the investigating agency. He has strongly argued that the Court cannot direct the investigating agency for further investigation on the basis of a prayer made by the defacto-complainant. It has been forcefully contended by the Learned Advocate appearing for the petitioners that the impugned order directing the D.I.G., C.I.D. for further investigation is not sustainable in law and liable to be set aside. He has further contended that the investigating agency had thoroughly investigated into the allegations made in the petition of complaint and opined that the allegations regarding forging of the power of attorney and transfer of the property on the basis of the said alleged forged power of attorney were purely civil in nature and moreso the original power of attorney was not traced out by the investigating agency. He has further submitted that in absence of original power of attorney the petitioners cannot be prosecuted for the alleged offence of forgery. In support of his contention the Learned Counsel appearing for the petitioners has placed his reliance on the decision of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & Ors., 2017 4 SCC 177 and cited the Judgment of Title Suit No.74 of 2013 passed by the Learned Civil Judge, (Junior Division), 4th Court, Serampore, Hooghly. 13. On the other hand the Learned Advocate appearing for the State has contended that the Learned Magistrate by the impugned order has directed further investigation of the case by D.I.G., C.I.D. He has further contended that the Learned Magistrate has no authority to direct D.I.G., C.I.D., Bhawani Bhawn for further investigation of a case. In support of his contention the Learned Counsel has placed his reliance on the decision of Chandra Babu @ Moses Vs. State through Inspector of Police & Ors., 2015 8 SCC 774 . 14. Learned Counsel appearing for the defacto-complainant/opposite party no.2 has contended that the defacto-complainant was compelled to file protest petition as the investigating agency in spite of specific direction did not investigate the case properly. He has contended that the lease deed was executed on the basis of forged power of attorney and that was not properly inquired into and investigated by the investigating agency. He has vigorously contended that the investigating agency submitted report in final form without investigation of the allegations contained in the complaint properly in a mechanical manner and that is why on each and every occasion the defacto complainant had to file protest petition for further investigation. He has drawn the attention of the Court to the order impugned and submitted that from the impugned order it has been reflected that there is justification for further investigation of the case. Learned Counsel for the opposite party no.2 has also contended that the Learned Magistrate has every right to direct for further investigation into the allegations made in the petition of complaint under Section 173(8) of the Code of Criminal Procedure. 15. I have considered the submissions and rival submission made by the Learned Counsel appearing for the parties. I have carefully gone through the materials placed on record and the decisions cited at Bar. 16. Learned Magistrate has directed the D.I.G., C.I.D., West Bengal to hold further investigation. 15. I have considered the submissions and rival submission made by the Learned Counsel appearing for the parties. I have carefully gone through the materials placed on record and the decisions cited at Bar. 16. Learned Magistrate has directed the D.I.G., C.I.D., West Bengal to hold further investigation. The impugned order has been assailed by the Learned Counsel for the petitioners on the score that Magistrate has no power to direct further investigation under Section 173(8) of the Code of Criminal Procedure. In support of his contention he has placed his reliance on the decision of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & Ors., 2017 4 SCC 177 . 17. Impugned order has also been assailed by the Learned Counsel for the State on the ground that the Magistrate has got no authority to direct D.I.G., C.I.D. for further investigation. Learned Counsel for State has cited a decision of our Apex Court reported in the decision of Chandra Babu @ Moses Vs. State through Inspector of Police & Ors, 2015 8 SCC 774 . 18. Annexure P-5 is the final report submitted by the investigating officer on 27.01.2011 in connection with Uttarpara Police Station Case No.16 of 2006 dated 17.02.2006. On perusal of the said annexure it transpires that the investigating officer prayed for discharge of the accused for want of evidence. In the said final report it was mentioned that alleged forged power of attorney was not traced out by the investigating officer as the same had been lost. 19. It is well settled that when the investigating officer after completion of investigation submits report in final form, the Magistrate should scrutinize the said report along with accompaniments properly and to decide either to accept the said final report or not. At the same time the complainant should be served a notice of submitting final report by the investigating officer. Complainant has the right to file a protest petition. 20. In the present case, after completion of investigation, the investigating officer had submitted report in final form on previous four occasions and on each and every occasion the defacto complainant filed protest petition. Learned Magistrate directed further investigation. Complainant has the right to file a protest petition. 20. In the present case, after completion of investigation, the investigating officer had submitted report in final form on previous four occasions and on each and every occasion the defacto complainant filed protest petition. Learned Magistrate directed further investigation. Submission of final report on various occasions in respect of same alleged facts after further investigation as per the direction of the Magistrate on the prayer of the defacto complainant does not ipso facto take away the right of the defacto complainant to file protest petition once again. The defacto complainant has a right to question the fairness of investigation and demand further investigation in that case, the Magistrate can direct further investigation even after a charge-sheet or a closure report is submitted prior to taking of cognizance. If the Magistrate takes cognizance and the accused appears before court in pursuance of process issued by court or where the accused is discharged, the Magistrate cannot direct further investigation unless the Magistrate is approached under Section 173(8) of the Code of Criminal Procedure. 21. In the present case the investigating officer submitted final report on each and every occasion and as such the question of taking cognizance by the Magistrate does not arise. Moreso, from the submissions made by the Learned Counsel for the parties it is clear that, the accused were not discharged by the Learned Magistrate on the basis of the final report submitted by the Investigating Officer. As such it cannot be said that the order of further investigation is beyond the scope, authority or power of Learned Magistrate. 22. By the impugned order Learned Magistrate has directed the D.I.G., C.I.D., West Bengal for further investigation. Admittedly, the investigation was conducted by the police and the defacto complainant was not satisfied with the investigation conducted by the police. The defacto complainant sought for an order of investigation by D.I.G., C.I.D., West Bengal to unearth the truth. Learned Magistrate has assigned reasons for directing further investigation by D.I.G., C.I.D. From the final report submitted by the investigating officer it appears that alleged forged power of attorney was not traced out. From the impugned order it reveals that the executor did not execute the alleged power of attorney in presence of Advocate, Pradip Bhattacharjee, who drafted and signed on the power of attorney as an advocate. Investigation initiated in the year 2006. From the impugned order it reveals that the executor did not execute the alleged power of attorney in presence of Advocate, Pradip Bhattacharjee, who drafted and signed on the power of attorney as an advocate. Investigation initiated in the year 2006. On several occasions the police was directed to conduct further investigation. Further investigation did not appear to be satisfactory. Accordingly the Learned Magistrate has directed the D.I.G., C.I.D. to hold further investigation. 23. Now the question comes whether change of investigating agency to hold further investigation is tenable in law. In this connection, our Apex Court in Chandra Babu @ Moses Vs. State through Inspector of Police & Ors. (supra) has held that the Magistrate has authority to direct further investigation and that by same agency. That means the change of agency to hold further investigation by the Learned Magistrate is not sustainable in law. 24. In the impugned order the Learned Magistrate has elaborately stated as to why further investigation is required to find out the truth. I do not find any good ground to interfere with the observations of the Learned Magistrate regarding further investigation of the case, but the change of investigating agency by the Learned Magistrate to hold further investigation requires to be interfered with. 25. Accordingly, the impugned order is modified to the effect that the further investigation will be conducted by the same investigating agency under the supervision of the superintendent of police concerned and the said further investigation must be complied with in a period of six months from the date of communication of the order. 26. Thus the criminal revisional application is disposed of. 27. Certified copy of the case diary be handed over to the Learned Advocate for the State immediately. 28. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.