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Akshoy Kumar Dutta and ors. Vs. Jogesh Chandra Nandy - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 518 of 1955
Judge
Reported inAIR1956Cal76,60CWN345
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 156(3), 170, 190 and 202; ;Indian Penal Code (IPC) - Sections 147, 323, 354 and 380
AppellantAkshoy Kumar Dutta and ors.
RespondentJogesh Chandra Nandy
Appellant AdvocateNikhil Chandra Talukdar, Adv.
Respondent AdvocatePrafulla Kumar Roy (Jr.), Adv.
Cases ReferredPulin Behari Ghosh v. The King
Excerpt:
- .....that on 18-1-1955, the complainant, jogesh chandra nandy, filed a petition of complaint before the police magistrate at seai-dah, charging the petitioners with offences under ss. 147, 354, 323 & 380, penal code. the case made in the petition of complaint was that, on the previous day, an assistant sub-inspector of police had been making an inventory of certain articles in a room of a house which was the common dwelling house of both parties in connection with a previous case under section 403, penal code instituted by the complainant.while the' inventory was proceeding, the complainant heard a shout and on hearing the same, he went into the room and found two of the petitioners assaulting his wife with fists and blows and pulling her by the hair, while two of the other petitioners were.....
Judgment:

Chakravartti, C.J.

1. This is a Rule on behalf of certain accused persons, calling upon the State and the complainant to show cause why certain orders made in the course of the proceedings should not be set aside and why the proceedings themselves should not be quashed.

2. It appears that on 18-1-1955, the complainant, Jogesh Chandra Nandy, filed a petition of complaint before the Police Magistrate at Seai-dah, charging the petitioners with offences under Ss. 147, 354, 323 & 380, Penal Code. The case made in the petition of complaint was that, on the previous day, an Assistant Sub-Inspector of Police had been making an inventory of certain articles in a room of a house which was the common dwelling house of both parties in connection with a previous case under Section 403, Penal Code instituted by the complainant.

While the' inventory was proceeding, the complainant heard a shout and on hearing the same, he went into the room and found two of the petitioners assaulting his wife with fists and blows and pulling her by the hair, while two of the other petitioners were trying to denude her of her clothing. The petition proceeded to state that the complainant's wife had been rescued by his relations, the Police Officer and himself. It was also alleged that certain articles had been removed, of which a list would be furnished afterwards.

3. Both parties are refugees from East Bengal and have taken shelter In a house situated at 16 Munshipara Lane in the Maniktala area of the city. There has been much litigation and there seems to be considerable unpleasantness between them.

The present petition to this Court refers to certain dealings of the complainant in respect of the house which are alleged to Save been fraudulent and it also refers to a series of proceedings started by him against the petitioners, all of which are said to have ended in failure. These matters, however, are not relevant to the decision of the present case.

4. The sole ground on which the present petition has been pressed is that the learned Police Magistrate at Sealdah did not seem to know how to deal with the case and that he had adopted a confused procedure by means of which he had not succeeded in bringing into existence any valid proceeding at all. That ground is sought to be made on the basis of the following facts.

5. On receipt of the petition of complaint, the Magistrate did not examine the complainant on path, but what he did was to pass the following order:

'Heard petitioner. O/C Section 'O' to treat the petition as P.I.R., and take up investigation, and if the facts as alleged appear to be correct, take cognisance, arrest the accused persons, and submit challan in the usual course.'

6. It will be noticed that the direction in the aforesaid order was that the Officer-in-Charge, Section 'O' was to make the investigation direct-ed.

7. There appears to have been some objection before the learned Magistrate to the investigation being held by the Officer-in-Charge, Section 'O'. The order-sheet contains an order, and indeed that is the very next order, passed on 26-2-1955. That order recites that the learned Magistrate had withdrawn the investigation from the Manicktolla Police Station and transferred it to 'D. C. D. D. for investigation'.

Having recited that fact, the order states that the proceedings had been stayed for some time by the Sessions Judge, but the order for stay having been vacated, the investigation would now be held by the 'D. C. D. D.'

8. The investigation so directed was held and the report made by the Investigating Officer was that the complainant's case was false. Thereupon the complainant appears to have filed a naraji' petition and on receipt of that petition, the learned Magistrate passed an order on 2-4-1955, of which the material portion reads thus:

'Narazi petition had been filed on behalf of the prosecution. Let there be a judicial enquiry. Shri T. P. Ghosh Magistrate, First Class, will please hold Judicial enquiry, and report by 3-5-1955. The accused persons who surrendered, and are on ball are discharged.'

9. After the aforesaid order had been passed, the matter could not proceed further, because the present Rule was taken out and an order for a stay of the proceedings obtained.

10. I have referred to an order for stay by the learned Sessions Judge. That order was passed in connection with an application made before him for a reference to this Court against the very first order passed on 18-1-1955, on the ground that there having been a petition of complaint, no order for a police Investigation without, the examination of the complainant could be legally made.

The learned Additional Sessions Judge dealt with the point urged before him, but in the view that there was no substance in it and that the procedure followed by the learned Magistrate was perfectly legal, refused to make a reference.

11. It is contended in the present Rule that the view taken by the learned Additional Sessions Judge was incorrect and the contention has been urged on broadly two grounds.

12. The first of the grounds urged before us is the old ground urged before the learned Additional Sessions Judge. It has been contended that since there was a petition of complaint, there was no room for a recourse to Section 156(3), Criminal P. C., and the learned Additional Sessions Judge, in holding that Section 156 (3) contained ample authority for making an order of the kind the learned Magistrate had made, had been in error.

It appears that the objection taken before the learned Judge was sought to be supported by the authority of the decision in -- 'A.C. Samaddar v. Suresh Chandra Jana' AIR 1949 Cal 197 (A), but the learned Judge was able to get clear of that decision by referring to the later decision in the case of -- 'Superintendent and Remembrancer of Legal Affairs v. Abani Kumar Banerjee' : AIR1950Cal437 , where the earlier decision had been considered.

In the later case, it was held that when a petition of complaint was filed before a Magistrate, he had two alternative courses open to him and could follow either of them at his option. He might examine the complainant on oath and proceed under Chap. 16 or he might simply direct an investigation by the police under Section 156 (3) of the Code and proceed under Chap. 14.

The learned Additional Sessions Judge pointed out that the trying Magistrate had not examined the complainant on oath in the present case and therefore he could not be said to have mixed up the procedure prescribed by Chap. 18 of the Code with the procedure prescribed by Chap. 14.

Mr. Talukdar, who appears on behalf of the petitioners, contended that the view taken by the learned Additional Sessions Judge was wrong, because there was a still later case -- 'Pulin Behari Ghosh v. The King' 53 Cal WN 653 (C), where it had once more been laid down that a Magistrate, receiving a petition of complaint, could not proceed under Section 156 (3), Criminal P. C., and pass an order of a hybrid character.

It appears to me that Mr. Talukdar missed the point of the decision cited by him. It is quite true that the order passed in that case bears a remarkable resemblance to the order passed in the present case, but the reason why the order was called a hybrid order was that the learned Magistrate had, before directing investigation by the police, actually examined the complainant on oath and therefore before he resorted to Chap. 14, he had already proceeded some way under Chap. 16.

In the present case, as I have already pointed out, the learned Magistrate did not commit the initial error of examining the complainant on oath and directing police investigation under Section 156 (3) thereafter. The first point taken by Mr. Talukdar must on the authorities, be decided against him.

13. I am free to confess however, with the greatest respect to the learned Judges who have held to the contrary, that the view taken In the first of the cases cited, namely, 'AIR 1946 Cal 197 (A)', appears to me to be more in conformity with the provisions of the Code and more readily adjustable to the scheme of the procedure there prescribed. Section 156 (3) refers to 'any Magistrate empowered under Section 190' and Magistrates empowered under Section 190 are Magistrate empowered to take cognizance of offences.

Such cognizance can be taken in one or other of three ways specified in the section. The first is upon receiving a complaint, the second is upon a report in writing made by a Police Officer and the third is upon information received from any person other than a Police Officer or upon the Magistrate's own knowledge or suspicion.

It is true that the language of Section 156 (3) is general and speaks of 'any Magistrate empowered under Section 190', but it seems to me that when the sub-section says that any such Magistrate may order an investigation or the kind provided for by the section, it can have reference only to Clause (c) of Section 190, that is to say, to cases where the Magistrates may take cognizance upon information received from persons other than police officers or upon his own knowledge or suspicion.

How a Magistrate will proceed, if there is a petition of complaint before him, has been specifically provided for in the Code and I must take the liberty of doubting whether it is at all intended that even when a petition of complaint is filed before a Magistrate, he can disregard the procedure which the Code enjoins for casea where there is a petition of complaint and proceed in another way.

In the case of : AIR1950Cal437 , the learned Judges were invited to refer the point to a Pull Bench, but they did not find it necessary to do so. Probably, a reference will have to be made some day. It is not necessary to make one in the present case, because, in my view, we can dispose of it on another ground.

14. The second point urged by Mr. Taluk-dar was that assuming that the learned Magistrate had acted legally in directing investigation by the 'police when he received the petition of complaint on 18-1-1955, he was clearly wrong when, upon receipt of the police report, he entertained a 'naraji' petition and proceeded to direct a judicial enquiry. In my opinion, that contention is well-founded and it is fatal to the proceedings which are now pending.

15. When a Magistrate directs an investigation under Section 156 (3), one or other of two things may follow. The police, after holding the investigation directed, may find the case to be true and may make a report to that effect under Section 170, If such a report is received by the Magistrate, he may proceed to issue process against the accused persons.

If, on the other hand, the police finds the case to be false and reports accordingly, which report also, it appears, is to be made under Section 170, the Magistrate has nothing further to do in the chain of that proceeding. He is in seisin of nothing and neither the police, nor anybody else is complaining before him and insisting that a proceeding should be started or any further enquiry held.

When a police enquiry or investigation is directed under Section 202, Criminal P. C., and the police report is against the complainant, there is a practice of entertaining what are called 'naraji' petitions.

Even Section 202 does not contain any express provisions that such petitions can be filed, but they are always filed and entertained, presumably on the basis that since the Magistrate has taken cognizance upon examination of the complainant on oath, he is in seisin of the case and an application to a Court which is in seisin of a case can always be made.

The position under Section 156 (3) or to be more correct Section 170 is far different. It is true that if the complainant is dissatisfied, he may come even at that stage to file a petition embodying his dissatisfaction. But such a petition can be acted on only if it is treated as a fresh petition of complaint. If it is so treated, then the complainant will have to be examined on oath before any further action is taken on the petition.

16. It is not disputed that the complainant in the present case was not. examined on oath on his 'naraji' petition. His learned Advocate contended before us that omission to examine a complainant on oath was a mere irregularity which would not vitiate a proceeding and in support of that contention wanted to rely on a Patna case. The decisions of this Court, however, are all in the opposite sense and it is not possible for us to proceed on the Patna view.

The learned Advocate conceded that if the law as laid down by this Court was the law to be followed and was the correct statement of the law, he could not contend that the procedure followed by the learned Magistrate was correct or that the proceedings initiated or authorised thereby could be sustained.

17. Mr. Talukdar took a third point and a new point today and pointed out that the actual order passed by the learned Magistrate directing police investigation could not be treated as an order under Section 156 (3), even assuming that he had authority to direct police investigation instead of proceeding under Chap. 16.

It was pointed out that although the order passed on the 18th January was an order directing investigation by the Officer in Charge of Section 'O', the next order of 26th February was an order transferring the investigation to the hands of an Officer described as 'D. C., D. D.' Mr. Talukdar referred to the decision in '53 Cal WN 653 (C)', which dealt with an order expressed in precisely the same terms and where it was held that an order directing investigation by the 'D. C., D. D.' could not possibly be an order under Section 156 (3).

We indicated to Mr. Talukdar when he attempted to urge this point that if he wished to take it, he ought to have given proper notice to the opposite party, because this point had not been taken in the petition. It seems to me, however, that pursuit of this point would avail Mr. Talukdar's clients nothing, because the point would be of consequence to him only if the police report was against his clients.

If the police report had been adverse to the petitioners and the Magistrate had proceeded against them on the basis of that report, it might be useful to argue that the investigation which had resulted in the production of the report had not been legally directed and therefore the consequential proceedings could not be maintained. The police report In the present case, however, was in favour of the petitioners and it seems to me that they would gain nothing by establishing that the investigation which had led to the submission of the report was not an investigation with any legal basis:

18. But the new point indicated by Mr. Talukdar is not altogether without a bearing on the question before us, for it shows that in whichever way one may look at the proceedings now pending before the learned Magistrate, they must be held to be bad and therefore liable to be quashed. If the learned Magistrate was proceeding under Chap. 14, he did not make a proper order under Section 156 (3), because he directed an Investigation by the 'D. C., D, D.' and not by the offi-cer-in-charge.

If it be said that the direction for investigation by the 'D. C., D. D.' showed that the learned Magistrate had not proceeded under Chap. 14, but had proceeded under Chap. 16, then the proceedings would be bad, because the complainant was not examined on oath. The proceeding, therefore, could not be supported either on the basis of Chap. 16 or on the basis of Chap. 14.

19. For the reasons stated above, it appears to us that it is impossible to allow the proceedings, now pending before the learned Magistrate at Sealdah, to continue. As they are now, they have 110 legal origin and it may be that they had no such origin at any time.

In view of the fact that the judicial enquiry directed upon the 'naraji' petition without an examination of the complainant on oath was wholly unwarranted by law, it appears to us that after the police report in favour of the petitioners, the Magistrate never came to be and is not now, in legal seisin of anything and therefore the proceedings directed by him under some purported authority are misconceived.

20. The Rule is accordingly made absolute and the proceedings pending before the learned Police Magistrate at Sealdah against the petitioners are quashed.

21. We desire to add that nothing said in this Judgment will prevent the complainant from proceeding on a fresh complaint, if he is so advised and the learned Magistrate from dealing with such complaint on its merits and in accordance with law.

Lahiri, J.

22. I agree.


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