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Asoke Chatterjee Vs. Sm. Manisha Mukherjee - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1976CriLJ876
AppellantAsoke Chatterjee
RespondentSm. Manisha Mukherjee
Excerpt:
- .....up before sri r. n. kali, metropolitan magistrate, who was dealing with the file of the learned chief metropolitan magistrate, calcutta. the police had in the meantime submitted a report which did not support the complaint. the complainant then made an application for transfer of the case to some other magistrate for favour of disposal, sri kali directed the records to be placed before the learned chief metropolitan magistrate, calcutta. on february 18, 1975 the records were put up before the learned chief metropolitan magistrate who perused the police report and also the petition filed by the complainant. the learned chief metropolitan magistrate thereafter on a consideration of the application allowed time to the complainant until february 21, 1975 to produce certain documents and.....
Judgment:

P.C. Borooah, J.

1. On December 23, 1974 Sm. Manisha Mukherjee, the Opposite Party in this Rule, filed a complaint before the Chief Metropolitan Magistrate, Calcutta, alleging commission of offences by the petitioner Asoke Chatterjee under Sections 417 and 493 of the Indian Penal Code. The learned Magistrate examined the complainant and her mother Sm. Pratima Mukherjee but thought that further probe would be necessary and accordingly directed the Deputy Commissioner of Police, Central, to make a personal enquiry and submit a report. On January 27, 1975 the record was put up before Sri R. N. Kali, Metropolitan Magistrate, who was dealing with the file of the learned Chief Metropolitan Magistrate, Calcutta. The police had in the meantime submitted a report which did not support the complaint. The complainant then made an application for transfer of the case to some other Magistrate for favour of disposal, Sri Kali directed the records to be placed before the learned Chief Metropolitan Magistrate, Calcutta. On February 18, 1975 the records were put up before the learned Chief Metropolitan Magistrate who perused the police report and also the petition filed by the complainant. The learned Chief Metropolitan Magistrate thereafter on a consideration of the application allowed time to the complainant until February 21, 1975 to produce certain documents and the said date was also fixed for hearing. On February 21, 1975 the Chief Metropolitan Magistrate heard the complaint and directed the documents filed on her behalf to be kept on record and fixed March 1, 1975 for orders. On March 1, 1975 the learned Magistrate rejected the enquiry report filed by the police and directed Sri G. C. Dey, Metropolitan Magistrate, 6th Court, Calcutta, to make an enquiry into the allegations of the complaint and submit a report. The learned Metropolitan Magistrate, 6th Court, Calcutta, held an enquiry and recorded evidence and submitted a report recommending issue of process against the petitioner under Sections 417 and 493 of the Indian Penal Code. The learned Chief Metropolitan Magistrate after considering the records and the report of the learned Magistrate, 6th Court, Calcutta, by his order dated April 19, 1975 ordered issue of process against the petitioner under Section 493 of the Indian Penal Code and on May 19, 1975 transferred the case to Sri R. N. Kali, Metropolitan Magistrate, 11th Court, Calcutta, for disposal.

2. On July 2, 1975 the petitioner filed an application before Sri Kali submitting, inter alia, that the issue of process was in violation of the provisions of Section 202 of the Code of Criminal Procedure, 1973 and the whole proceeding was as such illegal and prayed that the proceeding may be dropped. The learned Magistrate by his order dated July 21, 1975 rejected the contention of the petitioner and fixed August 7 and 8, 1975 for further evidence. The order passed by Sri R. N. Kali on July 21, 1975 has been impugned in this Rule.

3. It is the contention of Mr. Balai Chandra Ray, learned Advocate appearing on behalf of the petitioner, that the order passed by the learned Chief Metropolitan Magistrate, Calcutta, on March 1, 1975 directing a further enquiry by a learned Magistrate under Section 202 of the Code of Criminal Procedure, 1973 was without jurisdiction and has vitiated the issue of pro-cess based on such a report. Mr. Sudhir Gopal Poddar, learned Advocate appearing on behalf of the State, has supported Mr, Ray, Mr. Nalin Chandra Banerjee, learned Advocate appearing on behalf of the complainant opposite party, very fairly conceded that the order of the learned Chief Metropolitan Magistrate Calcutta, ordering an enquiry by a learned Magistrate cannot be supported in view of the language of Section 202 of the Code of Criminal Procedure, 1973.

4. Section 202(1) of the Code of Criminal Procedure, 1973 is in the following terms:

Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process agains the accused, and either inquire' into the case himself or direct an investigation to be made by a poJice offl-eer, or by such, other person as he thinks the, foe the purpose of deriding whether e not tbece is sufficient ground for proceeding.

5. On reading the said section it to apparent that a Magistrate on receding . complaint may, if he thinks fit defer the issue of process and if he does sc he can enquire into the- case himself or direct an investigation to be made by a police officer or by any other person as he thinks fit. The question is whether the investiga-titm by any other person which the learned Magistrate thinks fit includes a Magistrate as well.

6. Section 2(h) of the Code defines 'investigation' to include all proceedings under the Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is .authorised by a Magistrate in this 'behalf. It is thus clear that a Magistrate, when he postpones the issue of process, cannot direct a further enquiry by another Magistrate, He can make a further enquiry into the case himself or send it for investigation to a police officer or to any other person. In the present case, when the learned Chief Metropolitan Magistrate was- not satisfied with the report submitted by the Deputy Commissioner of Police, Central, he could have made a fresh enquiry himself or ordered a further investigation by the police.

7. That it was the intention of the legislature to rule out a further enquiry by another Magistrate is borne out by the fact that Section 202 of the old Code permitted a Magistrate when he thought it necessary to postpone tihe issue of process to enquire into the case himself or direct an enquiry or investigation to be made by any Magistrate subordinate, to him or by a police officer or by any other person.

8. We must accordingly hold that the order dated: March 1, 1975 passed by the Chief Metropolitan Magistrate, Calcutta, directing an enquiry to he made by the Magistrate,. 6th. Court, Calcutta, is beyond the scope of Section 202 of the Code of Criminal Procedure, 1973 and as such was in excess of his jurisdiction. We accordingly set aside the order dated March 1, 1975 and all orders passed subsequent thereto and direct the learned Magistrate to proceed afresh from the stage reached prior to the passing of the order dated March. 1, 1975 in accordance with law and in the light of the observations made in this judgment.

9. The Rule is accordingly disposed of. Let the records be sent down as expeditiously as possible

H.N. Sen, J.

10. I agree.


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