Research › Search › Judgment

Calcutta High Court · body

2020 DIGILAW 229 (CAL)

Minati Sarkar v. State Of West Bengal

2020-02-14

JAY SENGUPTA

body2020
JUDGMENT Jay Sengupta, J. - This is an application challenging an order dated 16.11.2016 passed by the Learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas in GR Case No. 331/2013 arising out of Garfa Police Station Case No. 21 dated 12.01.2013 under Sections 380, 406, 461 of the Penal Code. 2. The petitioner appeared in person and submitted as follows. On 12.01.2013 the petitioner lodged a First Information Report alleging that she had earlier handed over the keys of her house to the accused Janardan Chakraborty, a local priest, to look after the property, but came back to find that the house was trespassed and all the jewellery and household articles were stolen away. The police did not take the complainant seriously. Upon her strong insistence, they came, inspected the place and without seizing anything, registered a First Information Report only under Section 406 of the Penal Code. Upon her further persuasion, Section 380 of the Penal Code was added to the charges. At the behest of a Superior Officer, some articles were seized from the petitioner's house. Without conducting proper investigation, a report in final form was submitted by the Investigating Officer seeking discharge of the accused. In the meantime, the accused had been giving threats to the petitioner to withdraw the case. Accordingly, she filed some GD entries with the police. During investigation no recovery had been effected. Even the husband of the present petitioner was not examined by the police. The petitioner filed a protest petition, which was allowed. During further investigation, the second Investigating Officer seized an almirah. However, even after the subsequent investigation, another similar final report was submitted seeking discharge of the accused. The petitioner filed a second protest petition. Instead of directing another further investigation, the Learned Magistrate treated the protest petition as a petition of complaint and started a complaint case on the basis of the same. The Learned Magistrate failed to appreciate that without further investigation, the real truth could not be unearthed. 3. Learned Counsel appearing on behalf of the State relied on the case diary and submitted as follows. The petitioner/de facto complainant had from the beginning tried to dictate the police about how to investigate. While lodging the First Information Report, her allegation was against the accused Janardan Chakraborty, a priest, to whom she had allegedly deposited her house keys. 3. Learned Counsel appearing on behalf of the State relied on the case diary and submitted as follows. The petitioner/de facto complainant had from the beginning tried to dictate the police about how to investigate. While lodging the First Information Report, her allegation was against the accused Janardan Chakraborty, a priest, to whom she had allegedly deposited her house keys. After a few days, she came up with another allegation and this time implicated one Ujjal Guha, a neighbour, in the case alleging that the said Ujjal had instigated the original accused Janardan to commit such crime. She did not stop at this. Subsequently, during the further investigation the petitioner tried to implicate her in-laws in the present case. During investigation it has been found that the petitioner had disputes and civil litigations with several persons. In fact, the statement of an independent witness gave out a different story about the main accused and a subsequent souring of relation with the petitioner. There was also a prior bad blood between the said Ujjal Guha and the petitioner as well as between the petitioner and her in-laws. No cogent materials could be found that would link the said Ujjal or the said in-laws with the commission of the alleged crimes. The Investigating Agency recorded statements of several witnesses including those of neighbours who could have thrown any light on the alleged incident. But, no one supported the allegations of the de facto complainant except her husband and daughter, who only gave out what they suspected. The accused Janardan was taken into police custody. But, nothing could be recovered from him or from his house after search. There is no material whatsoever to show that the purported accused committed any offence as alleged by the petitioner. The filing of the second final report was completely justified. By the impugned order, the petitioner has been given an opportunity to prove her allegations in a complaint case. 4. Learned Counsel appearing on behalf of the accused/private opposite party adopted the submissions made on behalf of the State. 5. I have heard the submissions of the petitioner appearing in person and the Learned Counsels representing the State and the private opposite party and have perused the revision petition, the applications filed in connection with it, the notes filed by the petitioner, the list of dates filed by the State and the case diary. 6. 5. I have heard the submissions of the petitioner appearing in person and the Learned Counsels representing the State and the private opposite party and have perused the revision petition, the applications filed in connection with it, the notes filed by the petitioner, the list of dates filed by the State and the case diary. 6. The only worthwhile point for the petitioner is what arises from a copy of the application for remand dated 19.02.2013 annexed in the revision petition. There it was mentioned that during custody, the accused/opposite party no. 2 admitted that the stolen articles were kept at the house of a relative. However, the statement of the accused actually recorded does not at all vindicate this. Rather, it gives a totally different picture. One would wonder why then such an application was filed. However, in the ultimate analysis, the remand application was not supported by the statement of the accused. More importantly, nothing could be recovered from the accused or pursuant to any statement of his. Even the second investigating officer could not find anything more. 7. As would be evident from the case diary, the statements of independent witnesses at best referred to an incident of shouting done by the de facto complainant claiming that her household articles had been stolen. Neither any direct evidence nor any pre or post-occurrence witness is available to establish the guilt of anyone. 8. If locks or portions of gate that hold a lock at a house are broken open it is not necessary that the person who purportedly held the keys of the house would be involved in the case, especially in the absence of any cogent material suggesting his involvement. 9. On the other hand, the accusations of the de facto complainant seemed to stray significantly. A few days after alleging that the said Janardan Chakraborty, the purported keeper of the keys of the house, was responsible for the offences, she went on to allege that the same was done at the behest of a neighbour. But, there is nothing available to support such claim. On the other hand, it appears that the petitioner had a prior dispute with the said neighbour as regards demolition of a portion of a septic tank. Subsequently, as late as in 2015, the petitioner went on to allege that her in-laws could be responsible for the offences. 10. But, there is nothing available to support such claim. On the other hand, it appears that the petitioner had a prior dispute with the said neighbour as regards demolition of a portion of a septic tank. Subsequently, as late as in 2015, the petitioner went on to allege that her in-laws could be responsible for the offences. 10. A machinery of the State like an Investigating Agency had to cater to a wide range of accusations made at different points. Yet, after patient and elaborate investigations, the investigating agency came to successive findings that final report ought to be submitted seeking discharge of the accused. I do not find any particular laxity on the part of the Investigating Agency in conducting investigation of the case. If materials are actually not available, an Investigating Officer is not supposed to create them to suit the wishes of a particular individual. 11. I have carefully scanned the case diary and have not found any cogent material to connect the purported accused with the alleged crime. It also does not appear that the Investigating Officers, especially the second officer, were deliberately trying to scuttle the investigation in any manner. As such, there is no point in directing a second further investigation. 12. By passing the impugned order, the Learned Magistrate allowed an opportunity to the petitioner to establish her case once again, this time by way of a complaint case. It was a fair thing to do. Independent of the earlier investigations, the last protest petition does provide a room, however little, to proceed with the matter as in a complaint case. The respective parties would have ample opportunity to lead evidence. The impugned order is also a reasoned one. As such, I do not find any illegality in the same. 13. In view of the above, I do not find any merit in this revisional application. Accordingly, the same is dismissed. However, there shall be no order as to costs. 14. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.