Skip to content


Kanai Lal Agarwalla Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1975CriLJ1143
AppellantKanai Lal Agarwalla
RespondentThe State and ors.
Cases ReferredS. N. Sarma v. Bipin Kumar Tiwari
Excerpt:
- .....jurisdiction in passing the aforesaid order and that in effect his order resulted in stopping the police investigation which the learned magistrate had no power to do so. mr. nalin chandra banerjee, advocate appearing for the opposite parties nos. 3 and 4 submitted before us that the learned magistrate was justified in recalling his order under section 156(3), criminal procedure code inasmuch as such an order was obtained by the petitioner by a suppression of material facts. he further contended that, in any event, the impugned order was an administrative order and that as such, irrespective of the question whether the order was right or wrong, this court in the exercise of its revisional jurisdiction would not be justified in interfering with it. mr. sankardas banerjee, advocate.....
Judgment:

A.N. Banerjee, J.

1. This Rule is directed against an order dated 29-6-1973 passed by the learned Additional Chief Presidency Magistrate, Calcutta, by which he recalled his order under Section 156(3) of the Code of Criminal Procedure and discharged the accused persons.

2. What happened is as follows : On 1-5-1973 the petitioner, Kanai Lal Agarwalla, filed an application under Section 156(3) of the Code of Criminal Procedure before the learned Additional Chief Presidency Magistrate against the accused Nos. 1 to 3 and prayed for a direction for investigation by the police. On the same day the learned Magistrate directed the Deputy Commissioner of Police of the Detective Department, Calcutta, to take cognizance and to investigate. Accordingly the police took cognizance and a case was started on the basis of the petition filed by the petitioner under Sections 380/420/406/120-B Of the Indian Penal Code. In course of investigation three more persons surrendered in court and they were also shown as accused persons. The learned Additional Chief Presidency Magistrate by his order dated 18-6-1973 granted bail to all the six accused persons. In course of the investigation, an application was filed by the accused persons 1 to 3 for a recall of the order to investigate as passed by the learned Magistrate under Section 156(3), Criminal Procedure Code. The learned Magistrate by his impugned order recalled his order dated 9-5-1973 by which he directed the police to take cognizance and investigate and also discharged all the accused persons. Being aggrieved by such order, the petitioner moved this Court and obtained the present Rule.

3. Mr. Sen Gupta, Advocate appearing for the petitioner contended before us that the learned Additional Chief Presidency Magistrate acted illegally and without jurisdiction in passing the aforesaid order and that in effect his order resulted in stopping the police investigation which the learned Magistrate had no power to do so. Mr. Nalin Chandra Banerjee, Advocate appearing for the Opposite Parties nos. 3 and 4 submitted before us that the learned Magistrate was justified in recalling his order under Section 156(3), Criminal Procedure Code inasmuch as such an order was obtained by the petitioner by a suppression of material facts. He further contended that, in any event, the impugned order was an administrative order and that as such, irrespective of the question whether the order was right or wrong, this Court in the exercise of its revisional jurisdiction would not be justified in interfering with it. Mr. Sankardas Banerjee, Advocate appearing with Mr. Dilip Kumar Dutt for the other Opposite Parties supported the argument of Mr. Nalin Chandra Banerjee. Mr. Sankardas Banerjee further argued that in view of the clarification of the order staying the order of discharge as passed by the Division Bench which admitted the appeal, the matter as it stood at present was an academic one, inasmuch as the police had been allowed to continue with the investigation. Mr. Promode Rani an Roy, Junior Government Advocate who appeared for the opposite parties Nos. 1 and 2, the State and the Police Commissioner, submitted that it was correctly pointed out by the learned Public Prosecutor, Calcutta, before the learned Additional Chief Presidency Magistrate, Calcutta that after the passing of the order under Section 156(3), Criminal Procedure Code, the learned Magistrate had no jurisdiction to recall such an order which in effect would amount to an interference with police investigation,

4. Having heard the learned Advocates of the respective parties we are of the view that the learned Additional Chief Presidency Magistrate was not justified in recalling his order and in discharging the accused persons in a purported exercise of his inherent jurisdiction. Chapter XIV of the Code of Criminal Procedure deals with information to police and investigation. Section 156 of the said Chapter provides for investigation by the police into cognizable cases. Section 156(1) says that an officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry pr trial. Under Sub-section (2) no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Under Sub-section (3) any Magistrate empowered under Section 190 may order such an investigation as mentioned above. The very words occurring in Sub-section (3) indicate that the investigation which the police makes, pursuant to an order under Sub-section (3), is the same as in Sub-section (1) of Section 156. Once a Magistrate empowered- under Section 190 orders an investigation the police takes cognizance and investigates into the matter as he would have done under Sub-section (1) of Section 156. Sub-section (3) of Section 156 has not been intended to provide an alternative procedure to that laid down in Sections 200 to 203 of the Code of Criminal Procedure. We have already pointed out that Section 156 occurs in Chapter XIV of the Code of Criminal Procedure which primarily deals with in-formation to police and investigation. An order under Sub-section (3) of Section 156 is quite different and distinct from an order of enquiry or investigation by the police which the Magistrate may order in accordance with the provisions of Section 202, Criminal Procedure Code. Such an enquiry or investigation by a Police Officer is pursuant to the taking of cognizance by the Magistrate and also examination of the complainant. On receipt of a report of the enquiry or of the result of the investigation under Section 202 it is open to the Magistrate, before whom a complaint is made or to whom it has been transferred, to dismiss the complaint if there is in his judgment no sufficient ground for proceeding in accordance with the provisions of Section 203, Criminal Procedure Code. It appears that the learned Additional Chief Presidency Magistrate was quite conscious of the above position. But he thought that he had, in the exercise of his inherent power, the right to recall the order made by him under Sub-section (3) to Section 156, Criminal Procedure Code particularly when according to him fraud was practised upon the court at the time of the issue of such order. We will presently take up this aspect of the finding of the learned Magistrate but before we do so we may profitably refer to the well-settled principles of law regarding the role of the police and the Magistrate in the matter at the time of the investigation by the police. In the case of King Emperor v. Khwaia Nazir Ahmad reported in (1944) 71 Ind App 203 at P. 212 : (1945) 46 Cri LJ 413 at p. 417 (PC), Lord Porter observed as follows:

The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus.

5. The above principle was followed in the case of State of West Bengal v. S.N. Basak, by the Supreme Court reported in : [1963]2SCR52 . It laid down the principle that under Sections 154 and 156 of the Criminal Procedure Code the police had . the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate could not be interfered with by the exercise of power under Section 439 or under the inherent power of the Court under Section 561-A when there was no case pending at the time excepting that the person, against whom the investigation had started, had appeared before the Court, had surrendered and had been admitted to bail. In the case of S. N. Sarma v. Bipin Kumar Tiwari, reported in : 1970CriLJ764 the Supreme Court reasserted the above principles and further laid down that the power of the police to investigate in cognizable offence was uncontrolled by the Magistrate and it is only in cases where the police decided not to investigate the case that the Magistrate could intervene and either direct an investigation or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed and inquire into the case. Eventually their Lordships referred to the use of the expression 'as he thinks fit' in Section 159, Criminal Procedure Code in interpreting the power of the Magistrate to direct an investigation in cases where the police decided not to investigate the case under the provisions of Section 157(1), Criminal Procedure Code. In this case it was further laid down that though the Criminal Procedure Code gives to the police unfettered powers to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a Writ of Mandamus restraining the police officer from . misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the. Code. We respectfully agree with the principles as laid down in the aforesaid decisions. We may point out in this context that in the present case the police did not come up to the Magistrate with a prayer for discharge of the accused persons on the ground that prior to the de facto complainant obtaining an order under Section 156(3), Criminal Procedure Code, his father, Rambilash Agarwalla, made' a similar complaint to. them and that it was ultimately dropped. It was the accused persons who moved the learned Additional Chief Presidency Magistrate and persuaded him to believe that by practising fraud upon him an order under Section 156(3) was obtained. Mr. Promode Ranjan Roy, Jr. Govt. Advocate, was fair enough to produce before us the papers relating to the earlier complaint made by Ram Bilash Agarwalla. It appears that after some preliminary enquiries the police did not proceed with the investigation. Thereafter the present petitioner filed an application before the learned Additional Chief Presidency Magistrate and prayed for an order under Section 156(3), Criminal Procedure Code, In that application the fact that an earlier application was made to the police for taking cognizance into the offence as alleged was stated. The learned Magistrate was, therefore, not justified in castigating the petitioner that he had practised fraud upon him. We have already pointed out that Section 156(3), Criminal Procedure Code gives the power to the Magistrate to direct the police to investigate a cognizable offence. Once the learned Magistrate gives such a direction under that sub-section the police takes cognizance of the offence and starts investigation. The Magistrate having directed such investigation cannot tinker with or hamper with the investigation started by the police by a subsequent order of re-call of his order under Section 156(3), Criminal Procedure Code. If he does so, as was done in the present case, he exceeds his jurisdiction and acts in a manner which is not in accordance with the procedure established by law.

6. With regard to the contention of Mr. Nalin Chandra Banerjee that the impugned order being an administrative order the same should not be revised by this Court in exercise of its jurisdiction under Section 439 or even under Section 561-A, Cri. Procedure Code. Mr. Santi Ranj an Sen Gupta, Advocate, appearing on behalf of the petitioner cited several cases where the High Court or the Supreme Court or the Judicial Committee interfered with such orders. A reference in this context may be made to the cases reported in : AIR1962Cal135 . In the last Supreme Court decision as referred to above the learned Magistrate wrongly stopped the investigation. The High Court interfered and held that such an order was wrong and the Supreme Court upheld the decision of the High Court.

7. Without entering into the question as to whether the said order is administrative or judicial, the line of cases referred to above make it abundantly clear of administrative order, wrongly interfering with the investigation the High Court can interfere in the aid of justice If this could be done this Court also sitting in revision can in the aid of justice interfere with an incorrect and improper order passed by the learned Additional Chief Presidency Magistrate. It should not be overlooked that this Court is not interfering with the investigation but is setting aside an order passed by the learned Addl. Chief Presidency Magistrate interfering with such investigation. Therefore, the order passed by this Court in exercise of its revisional jurisdiction is in the aid of justice and in conformance to the principles laid down in this behalf by the different High Court, Supreme Court and the Privy Council. The aforesaid objection of Mr. Nalin Chandra Banerjee raised in this behalf accordingly fails.

8. In the result, the Rule is made absolute; and the impugned order dated 29-6-1973 passed by the learned Additional Chief Presidency Magistrate is hereby set aside.

N.C. Talukdar, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //