Skip to content


Md. Hasib Vs. ImamuddIn Haji and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ1530
AppellantMd. Hasib
RespondentimamuddIn Haji and ors.
Cases Referred(Abhinandan Jha v. Dinesh Mishra). The
Excerpt:
- .....no basis for proceeding against the accused opposite parties, the learned magistrate accepted the police report and discharged the accused persons. the contention of mr. dutt is that the report of the police in the instant case is not a report as contemplated under section 202 of the code. under section 202, a magistrate after taking cognizance may think it fit to postpone issue of process and make an enquiry into the case himself or direct investigation to be made by a police officer. if a report is made by the police under section 202 of the code, the magistrate will either issue process or dismiss the complaint under section 203 of the code. in the case of such dismissal under section 203 of the code, recording of the reasons by the magistrate is obligatory. mr. dutt has argued that.....
Judgment:
ORDER

S.N. Sanyal, J.

1. This Rule is directed against the order dated August 29,1980 passed by the learned Chief Metropolitan Magistrate, Calcutta in Case No. C/1918 of 1980 under sections 380/341/504/506 1. P. C. discharging the accused opposite parties Nos. 1 to 3.

2. The complainant petitioner filed a petition on 23-7-80 before the learned Chief Metropolitan Magistrate, Calcutta alleging that since 1977 the petitioner was running a betel shop at 29/1 A, Chandni Chowk Street, Calcutta and took the said shop by executing a deed of agreement along with his brother-in-law S. A. Wahid on November 25, 1979 and the said Wahid had taken the shop from Md. Osman. The petitioner and his younger brother had been running the shop and had the licence in petitioner's name. The petitioner left for Patna to appear before the Bihar Public Service Commission and his younger brother was looking after the business. On 3-5-80 the petitioner's younger brother also went to Patna for his treatment and he kept the key of the shop with the servant Sharfu. In the meantime the accused opposite party No. 1 snatched away the key from the possession of the servant. The petitioner returned on 18-6-80 and he came to know of the fact. The accused persons refused to hand over the key to the petitioner in spite of demand. The accused persons abused the petitioner in filthy language and threatened him with dire consequences if any attempt was made to open the shop. The petitioner filed a written complaint against the accused persons and lodged a general diary at the thana on 19-6-80. On 20-6-80 the petitioner complained before the Assistant Commissioner, Central Division and on his direction K. D. Tewari and Ramchandra Singh went to the spot but no action was taken against the accused. The petitioner made several attempts, but when no legal action was taken against the accused persons the petitioner went to the Police Commissioner, Calcutta and lodged a written complaint. The petitioner also prayed that the learned Magistrate would be pleased to direct the Deputy Commissioner, Detective Department, Lal Bazar to take cognizance under Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as the Code).

3. On receipt of the complaint, the learned Magistrate perused the same and sent the petition to the Deputy Commissioner, Detective Department for causing investigation to be made under Section 156(3) of the Code fixing 10-9-80 for report. In the meantime on 4-8-80 the accused opposite parties Nos. 1 and 2 made a prayer before the learned Chief Judge, City Sessions Court, Calcutta for anticipatory bail under Section 438 of the Code in the event of their arrest in connection with Case No. C/l918/80.

4. The learned Chief Judge by the order dated 4-8-80 granted them bail on certain conditions. The opposite parties Nos. 1 and 2 surrendered before the learned Chief Metropolitan Magistrate on 18-8-80. The learned Magistrate by order dated 18-8-80-called for the F, I. R. fixing 29-8-80. On 18-8-80 opposite party No. 2 also filed an application before the learned Magistrate for relaxation of the condition of the bail bond as he was going to Haj Pilgrimage from 4-9-80. The learned Magistrate fixed the application for hearing on 29-8-80. On that date a report was received from the Investigating Officer with the original petition of complaint. In the report the Investigating Officer stated that the petitioner failed to produce any document showing his bona fide possession of the shop room in his favour nor could he produce any witness. The Investigating Officer further stated that the opposite party No. 1 was a direct tenant under the landlady in respect of the hotel and the shop room. In the further report it was stated that a suit being Suit No. 1283 of 1980 was pending before the City Civil Court, Calcutta against the petitioner and others over the right of the shop in question. The learned Magistrate recorded that according to the I. O. no criminal case lies and the matter was civil in nature. The learned Magistrate accordingly discharged the accused persons and directed that the record be put up on 10-9-80. On 10-9-80 the subsequent files were tied to the record, The petitioner has challenged the order of the learned Magistrate dated 29-8-80 discharging the accused persons in the present Rule.

5. Miss Saha, learned Advocate for the petitioner, has contended that the learned Magistrate has not followed the procedure laid down in Section 200 of the Code. It has been argued that the learned Magistrate should have examined upon oath the complainant and the witnesses present. Miss Saha has further contended that before dismissing the complaint the learned Magistrate ought to have given reasons. The provisions under section 203 of the Code have not been complied with and the order of the learned Magistrate should be set aside and the case should be sent back to the learned Magistrate for proceeding in accordance with law. In support of her contention Miss Saha has referred to the case of Jeoomal Tikamdas v. Emperor 183 Ind cas 449 : 1939-40 Cri LJ 807. She has also referred to the cases of Govinda Pillai v. State 1972 Cri LJ 987 (Ker) and Debendra Nath Bhattacharya v. State : 1972CriLJ1037 . Another case referred to by Miss Saha is D. L. Reddi v. V. N. Reddi : 1976CriLJ1361 .

6. Mr. Dutt, learned Advocate appearing for the opposite parties 2 and 3, and Mr. Chowdhury, appearing for the opposite party No. 1, have contended that there was no irregularity or illegality in the procedure of the learned Magistrate in dealing with the case. It has been argued that the learned Magistrate did not take cognizance and he sent the petition of complaint to the Deputy Commissioner, Detective Department under section 156(3) of the Code. The police investigated into the case as the allegation disclosed the commission of a cognizable offence and the police submitted final report. Mr. Dutt has argued that the said report is under Section 173 of the Code and as there was no basis for proceeding against the accused opposite parties, the learned Magistrate accepted the police report and discharged the accused persons. The contention of Mr. Dutt is that the report of the police in the instant case is not a report as contemplated under Section 202 of the Code. Under Section 202, a Magistrate after taking cognizance may think it fit to postpone issue of process and make an enquiry into the case himself or direct investigation to be made by a police officer. If a report is made by the police under section 202 of the Code, the Magistrate will either issue process or dismiss the complaint under Section 203 of the Code. In the case of such dismissal under Section 203 of the Code, recording of the reasons by the Magistrate is obligatory. Mr. Dutt has argued that if the Magistrate takes cognizance, he is to proceed under Chapter XV of the Code and he cannot send a petition of complaint under Section 156(3). Mr. Dutt has referred to H. S. Bains v. The State : 1980CriLJ1308 . He has also referred to two other decisions of the Supreme Court, namely : 1978CriLJ8 (Tularam V. Kishore Singh) and : 1968CriLJ97 (Abhinandan Jha v. Dinesh Mishra). The submission of Mr. Dutt is that the learned Magistrate acted within his competence and in accordance with law and there is no reason for this Court to accept a revision petition.

7. The decisions referred to by Miss Saha deal with the dismissal of complaint under Section 203 of the Code. In Debendra Nath Bhattachary's case 1972 Cri LJ 1037 (SC) it has been held that an order of dismissal of a complaint under Section 203 has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It has been further held that if a bare perusal of a complaint or the evidence led in support of it shows that essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature, or that there are such patent absurdities in the evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203 of the Code. In Jeoomal's case 1939 40 Cri LJ 807 (Sind) (supra) it has been held that a Magistrate, when there is a complaint before him, will deal with it according to Section 200 and the following sections of the Code. If he wishes to postpone the issue of process under Section 202, he must comply with the provisions of that section and if as a result of a preliminary enquiry he wishes to dismiss the complaint, then he must do so according to the provisions of Section 203. In Govinda Pillai's case 1972 Cri LJ 987 (Ker) (supra) it has been held that a protest petition cannot be disposed of without examining the complainant, but the Magistrate is expected to restore the complaint petition and to give an opportunity to the complainant to cite his witnesses and establish his case. The fact that. the report of the police was called for under Section 156(3) and not under Section 202 is not of much consequence.

8. In the instant case the petitioner did not file any protest petition before the learned Magistrate when the accused persons were discharged on the basis of the report made on an investigation ordered under section 156(3) of the Code. In Govinda Pillai's case the complaint was forwarded to the police under section 156(3) of the Code and the police after investigation filed a reported charge. Against this notice was issued to the complainant by the Magistrate. On receipt of the notice the complainant of that case filed a protest petition requesting the Court to ignore the final report of the police and take the case to file. The learned Magistrate without even examining the complainant accepted the report of the police. The facts of the present case are different from those which gave rise to the decision in Govinda Pillai's case.

9. In D. L. Reddy's case 1976 Cri LJ 1361 (SC) (supra), it has been held by the Supreme Court that section 156(3) is independent of section 202. This decision also lays down that an order made under Section 156(3) is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 and ends with a report or charge sheet under section 173. On the other hand, section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter TV, but the same is, deemed insufficient to take decision as to the next step in the prescribed procedure. The object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. In the instant case the learned Magistrate did not proceed under section 202 of the Code and as such the question of dismissal of the complaint would not arise.

10. In Abhinandan Jha's case 1968 Cri LJ 97 (SC) (supra) it has been held that there is no power expressly or impliedly conferred under the Code of Criminal Procedure, 1898 on a Magistrate to call upon the police to submit a charge sheet when they have sent a report under section 169 that there is no case made out for sending up an accused for trial. The functions of the Magistrate and the police are entirely different and though the Magistrate may or may not accept the report and take suitable action according to law he cannot impinge upon the jurisdiction of the police compelling them to change their opinion, so as to accord with his view. It has been further held that the submission of either a chargesheet or a final report is dependent on the nature of the opinion formed by the police. The formation of the said opinion by the police is the final step in the investigation and that final step is to be taken only by the police and by no other authority.

11. In Tularam's case 1978 Cri LJ 8 (supra), the Supreme Court laid down that where a Magistrate orders before taking cognizance under section 156(3) of the Code and receives the final report from the police, he has power to issue notice to the complainant, record his statement and issue process under section 204 of the Code. It has been further held that a Magistrate can order investigation under section 156(3) only at a pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14, he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 202 of the Code. In H. S. Bain's case : 1980CriLJ1308 the decisions reported in : 1978CriLJ8 were considered. It has been held that a Magistrate who on receipt of a complaint orders an investigation under Section 156(3) and receives a report from the police under Section 173(1) may thereafter do one of three'' things:

(1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under S. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an enquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be.

12. Having regard to the principles of law laid down in the decisions of the Supreme Court referred to above it cannot be said that there was dismissal of complaint under Section 203 of the Code, The argument of Miss Saha that there was a dismissal of complaint under Section 203 and the learned Magistrate was required to give reasons for dismissing the complaint is not at all relevant. It has been seen that the learned Magistrate directed investigation under Section 156(3) before taking cognizance. The said report of the police is a report under Section 173 of the Code and not a report under Section 202 of the Code. The learned Magistrate considered the report of the police and he accepted the report and dropped action by discharging the accused persons. It is true that the learned Magistrate might have disagreed with the police report and could have proceeded with the original petition of complaint. The learned Magistrate did not think it fit to do the same as he accepted the police report. Having regard to the circumstances of the case, it cannot be said that the learned Magistrate acted illegally or with material irregularity.

13. Miss Saha has argued that while sending the original application to the police under Section 156(3) the learned Magistrate recorded that the case should be put up on 10-9-80 for report towards the progress of investigation. The grievance of Miss Saha is that before the said date of 10-9-80 the learned Magistrate on 29-8-80 discharged the accused persons. Mr. Chowdhury has argued that the report of police reached the learned Magistrate on 29-8-80 and there was no irregularity on the part of the learned Magistrate in disposing of the case on 29-8-80 as he decided to accept the police report. It is true that the learned Magistrate might have waited till 10-9-80, the date originally fixed for receiving the report. As the report was received earlier, the learned Magistrate did not find any reason to disagree with the same in discharging the accused persons on the basis of the police report on 129-8-80. It is not such a matter on which the revision petition should be allowed. The fact remains that a report was submitted by the police on an application sent to the police under Section 156(3). The investigation is to be done by the police and the learned Magistrate cannot have any say in regard to the result of the investigation. He may proceed in any of the ways mentioned in H. S. Bain's case : 1980CriLJ1308 (supra). In the instant case, the learned Magistrate has taken up the first way mentioned in the said judgment, i.e., he accepted the report and did not think it fit to proceed further and he discharged the accused persons.

14. There is no satisfactory reason to challenge his action in the present Rule.

15. It appears that the complaint was made against the opposite parties 1, 2 and 3 and in the said complaint the only prayer made was that the complaint might be sent to the Deputy Commissioner, Detective Department to take cognizance under Section 156(3) for investigation. The learned Magistrate has thus granted the prayer of the petitioner. Anticipatory bail was obtained by opposite parties 1 and 2, They surrendered before the learned Magistrate and they were released on bail. So far as the accused opposite party No. 3 is concerned, he did neither pray for anticipatory bail nor did he appear before the learned Magistrate. The question is whether the discharge is in respect of two accused persons who appeared before the learned Magistrate or held that the order of the learned Magistrate that accused persons be discharged would also include the opposite party No 3 The complaint was against all the three accused persons and investigation was made on that basis. The police report related to all of them. It would appear that the learned Magistrate did not want to proceed further and he dropped action and the order of discharge thus includes the accused opposite party No. 3 as there was no case against him also.

The revision application thus fails and the Rule is discharged. Let the records be sent below forthwith.


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