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Manohardas Babaji and ors. Vs. Khandu Dutta and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 843 of 1964
Judge
Reported inAIR1966Cal633,1966CriLJ1408
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 202
AppellantManohardas Babaji and ors.
RespondentKhandu Dutta and anr.
Appellant AdvocateAjit Kumar Dutta and ;Subhendra Nath Tagore, Advs.;Dilip Kumar Dutta, Adv.
Respondent AdvocateS.S. Mukherjee and ;Kishore Mukherjee, Advs.
DispositionApplication dismissed
Cases ReferredPramatha Nath v. Saroj Ranjan. It
Excerpt:
- .....is illegal and should be set aside. 2. the opposite party khandu dutta filed a complaint before a learned magistrate at purulia against the present petitioners alleging that the petitioners dragged the complainant's father kishori from the road to their gate and attempted to take a photograph. on kishori's protest, he was assaulted and a photograph was taken. thereafter, his signature was also taken on point of gun on a khata and ultimately, he was rescued by some neighours. the learned magistrate after examination of the complainant directed the officer-in-charge to enquire and report. on receipt of the report the learned magistrate passed the following order: 21-5-64 complt. present. seen enquiry report submitted by o. c. the report is challenged. let the complt. prove his case in a.....
Judgment:
ORDER

A.K. Das, J.

1. The short question that arises in this application under Section 439 O. P. C. is whether the learned Magistrate's order directing a second enquiry under Section 202 Cr. P. C. is illegal and should be set aside.

2. The opposite party Khandu Dutta filed a complaint before a learned Magistrate at Purulia against the present petitioners alleging that the petitioners dragged the complainant's father Kishori from the road to their gate and attempted to take a photograph. On Kishori's protest, he was assaulted and a photograph was taken. Thereafter, his signature was also taken on point of gun on a khata and ultimately, he was rescued by some neighours. The learned Magistrate after examination of the complainant directed the officer-in-charge to enquire and report. On receipt of the report the learned Magistrate passed the following order:

21-5-64 Complt. present. Seen enquiry report submitted by O. C. The report is challenged. Let the complt. prove his case in a judicial enquiry. The petitioner-accused then appeared and filed an objection challenging the learned Magistrate's order directing a fresh judicial enquiry. By his order dated 1-7-64, the learned Magistrate rejected the petition on grounds stated in the order, a copy of which has been placed on record.

3. Mr. Ajit Kumar Dutt, learned Advocate for the petitioner, has argued that after a full-fledged enquiry by the officer-in-charge under Section 202 of the Cr. P. C., a second or a further enquiry under the same section by a Magistrate or by any other agency is neither contemplated in law nor is warranted by the provisions of the Criminal Procedure Code. In this connection, he has referred to an unreported decision of this Court in Revision Cases Nos. 157 of 1961 and 223 of 1961 (Cal) Section 202 of the Criminal Procedure Code provides that any Magistrate on receipt of a complaint of an offence, may, if he thinks fit for reasons to be recorded in writing, postpone the issue of process and direct an enquiry or investigation to bo made by any Magistrate subordinate to him or by a police officer or by such other person as be thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. The clause 'direct an enquiry or investigation does not mean one enquiry or one investigation only and it would be wrong to interpret it as limiting to one such enquiry or investigation. Indeed, this enquiry and investigation in 'for the purpose of ascertaining the truth or falsehood of the complaint' and it is reasonably clear from the section itself that the legislature never intended to restrict the Magistrate's power or right to one enquiry only. Mr. Dutta argued that although on the wording of the section, no rigid rule restricting the enquiry to once only can be laid down, even so, if there is a complete enquiry--as opposed to a penfunctory or incomplete enquiry, the Magistrate cannot direct another enquiry. His argument in substance appears to be that in suitable case where the enquiry was perverse or perverted and even perfunctory or where the Magistrate thinks that the enquiry is not helpful in ascertaining the truth or falsehood of the complaint he is entitled to refer the matter to another agency mentioned in the section for the purpose of an enquiry. Indeed, it is difficult to conceive of a case where the Magistrate is not so satisfied but would even then, refer the matter for an enquiry by another agency suo motu or simply because an objection is filed by the complainant. The very fact that the learned Magistrate after having seen the enquiry report and taking note of the fact that the report is challenged, sends it to a Magistrate for judicial enquiry, clearly shows that he did not consider the report to be sufficient for the purpose of ascertaining the truth or falsehood of the complaint. There is therefore nothing wrong in the learned Magistrate's exercising the power of judicial enquiry under Section 202 Cr. P. C. in the manner he bas done.

4. The learned Magistrate's order dated 1-7-64 however explains the whole position. It appears that after the learned Magistrate passed the order for judicial enquiry by a Magistrate, the petitioners appeared and filed an objection. Their right to intervene at that stage is not clear. No summons was as yet issued and it was at the stage of judicial enquiry under Section 202 and the accused persons had no right to participate or intervene in the proceeding at that stage. The learned Magistrate however heard them and then passed a comprehensive order which discloses the grounds why the learned Magistrate thought fit to have a second judicial enquiry by a Magistrate for the purpose of ascertaining the truth or falsehood or the complaint. It is not for this Court to go into the question of facts to decide as to whether the learned Magistrate should or should not accept the report of the officer-in-charge. I may however point out that there is enough material justifying the learned Magistrate's action. It appears that the officer virtually held a full dress trial and permitted the accused persons to participate. Apparently, he forgot that the enquiry was not for the purpose of ascertaining whether the accused persons are lively to be convicted but only for the purpose of deciding whether summons should issue. So far as the question regarding the participation of the accused during an enquiry under Section 202 Cr. P. C. is concerned, the position now seems to be settled after the Supreme Court decision reported in : AIR1962SC876 , Pramatha Nath v. Saroj Ranjan. It has been held that in Sections 203, 204 Cr. P. C., the expression 'sufficient ground for proceeding' really means ground for proceeding with the complaint. Sufficient ground for proceeding with the complaint is one matter and sufficient ground for conviction of the accused is another matter. The Magistrate therefore goes wrong where he proceeds, as if he was trying the case himself. It is therefore illegal to allow the accused persons to participate or to be examined as witnesses or to argue that the complaint should be dismissed.

5. The learned Magistrate's order therefore discloses that the order for a judicial enquiry by a Magistrate was not passed as a matter of routine but the learned Magistrate not only looked into the report by the officer-in-charge and heard the complainant's lawyer but also took into consideration other aspects. He then proceeded to hear an objection raised later by the accused and after hearing both sides he maintained this earlier order.

6. In the Division Bench cases earlier referred to, the learned Judges deprecated the idea of a second or third or fourth enquiry. It was held that 'if the learned police Magistrate did not find that the report was not to his liking it was not in my opinion, open to him to order a second enquiry'. It was also held that 'it is not usually accepted that a cognizance Magistrate after receipt of a report by the enquiring Magistrate shall attempt a second or a third or a fourth enquiry according to his liking or choice'. The recommendation under Section 202 Cr. P. C. of the enquiring authority is not however binding on the Magistrate and he may pass any order he chooses, either accepting the recommendations or rejecting it. There is therefore no necessity for attempting to fashion the report to his liking by several enquiries. The decision referred to does not lay down any rigid rule that an order for a second or subsequent enquiry is illegal or prohibited by law; indeed, looking at the purpose for making the enquiry viz. ascertainment of the truth or falsehood of the complainant, no such rigid rule can be laid down. Every case however is decided on the facts of that case. On the facts of the case before the Division Bench, It came to hold the view that a second enquiry was not justified but it did not lay down anygeneral principle of law barring a second enquiry, hat decision was not intended to lay down a general principle of law.

7. Mr. Mukherji raised a question of the petitioner's locus standi to appear before this Court in support of the petition under Section 439. Section 440 of the Cr. P. C. provides that no party has any right to be heard either personally or by a pleader before any court when exercising its power of revision but the court if it thinks fit may hear any party either personally or by a pleader. Therefore, the question raised does not really arise for decision.

In the result, this application should fail and the Rule is discharged.


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