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Sankar Chandra Ghose Vs. Roopraj S. Bhansally - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1981CriLJ1002
AppellantSankar Chandra Ghose
RespondentRoopraj S. Bhansally
Cases ReferredSunil Majhi v. State
Excerpt:
- .....magistrate, alipore issued process against the petitioner under section 341 of the indian penal code.2. criminal revision 1501 of 1980 is for quashing a proceeding being c. case no. 750 under sections 341 and 380 of the indian penal code pending in the court of the sub-divisional judicial magistrate, alipore. in this proceeding, the learned magistrate after receipt of the report of the police officer under section 202 of the code of criminal procedure allowed the complainant's prayer for judicial enquiry and fixed 27-11-1980 for further evidence.3. we shall first take up criminal revision 1408 of 1980. the proceeding, namely, c. case no. 2050 of 1980 was started on a petition of complaint filed by the opposite party no. 1 against the petitioner complaining that the petitioner had.....
Judgment:

N.C. Mukherji, J.

1. These two applications have been filed under Sections 401 and 482 of the Code of Criminal Procedure, Criminal Revision 1408 of 1980 is for quashing proceeding being C. Case No. 2050 of 1980 under Section 341 of the Indian Penal Code. In the said proceeding by-order dated 5-7-1980 the learned Sub-Divisional Judicial Magistrate, Alipore issued process against the petitioner under Section 341 of the Indian Penal Code.

2. Criminal Revision 1501 of 1980 is for quashing a proceeding being C. Case No. 750 under Sections 341 and 380 of the Indian Penal Code pending in the Court of the Sub-Divisional Judicial Magistrate, Alipore. In this proceeding, the learned Magistrate after receipt of the report of the Police Officer under Section 202 of the Code of Criminal Procedure allowed the complainant's prayer for Judicial enquiry and fixed 27-11-1980 for further evidence.

3. We shall first take up Criminal Revision 1408 of 1980. The proceeding, namely, C. Case No. 2050 of 1980 was started on a petition of complaint filed by the opposite party No. 1 against the petitioner complaining that the petitioner had committed an offence under Section 341 of the Indian Penal Code. The details of the allegations have been narrated in paragraph 5 of the petition of complaint. It has been stated that on 25-5-1980 at about 8-30 p. m. the accused No. 1 locked one of the door leaves of the main entrance gate of the petitioner's tenanted premises thereby wrongfully restraining the petitioner and the members of his family from entering into the tenanted premises. The accused No. 2 with the servant of the accused No. 1 had been constantly standing and occasionally sitting along with the accused No. 3 and they had been wrongfully restraining the petitioner and his family members.

4. Mr. Dilip Kumar Dutt, learned Advocate appearing on behalf of the petitioner contends that on the allegations made by the complainant referred to above, it must be said, even assuming the allegations are correct, that the restraint, if any, was partial restraint. Admittedly, according to the complainant himself, one of the door leaves was closed. That being so, as the other door leaf was open, there was sufficient space for the petitioner and his family members for passing along the passage. In such circumstances, Mr. Dutt contends with much emphasis that there cannot be any wrongful restraint so as to attract Section 341 of the Indian Penal Code.

5. Mr. J.N. Ghosh, learned Advocate appearing on behalf of the opposite party on the other hand, submits that when in the petition of complaint it has been stated that one of the door leaves was closed, this position must be accepted as correct. But Mr. Ghosh contends that even then, it must be said that there was partial restraint and, according to Mr. Ghosh, partial restraint is also wrongful restraint. Every person, according to Mr. Ghosh, has right to proceed in a manner he is entitled to proceed and, as such, if there be any sort of obstruction which prevents a person from smoothly passing along a passage, then it must be said that the person who has made obstruction is guilty of an offence under Section 341 of the Indian Penal Code.

6. Considering the elements necessary to constitute an offence under Section 341 of the Indian Penal Code, we cannot accept the contention raised by Mr. Ghosh. In order to constitute an offence under Section 341. I.P.C. it must be established that the complainant was obstructed from proceeding along a particular direction. When admittedly one of the door leaves was not closed, it cannot be said that the complainant was obstructed wrongfully from passing along the passage.

7. This being the position, we are of the opinion that the complainant has failed to establish that the petitioner has committed an act which amounts to an offence under Section 341, I.P.C.

8. In the result, the application succeeds. The proceeding is hereby quashed.

9. Now we take up Criminal Revision 1501 of 1980. This case arises, as has been stated earlier, for quashing a proceeding being C. Case No. 750 under Sections 341 and 380 of the Indian Penal Code. In this proceeding, the learned Magistrate after receipt of the report of the Police Officer under Section 202 of the Code allowed the complainant's prayer for judicial enquiry and fixed 27-11-1980, for further evidence.

10. Mr. Dilip Kumar Dutt. learned Advocate appearing on behalf of the petitioner, contends that. the expression 'either direct on enquiry or investigation' means either an enquiry or an investigation. It means only one enquiry or one investigation. The Section does not provide that after an investigation is made, it is open to the Magistrate to direct a further enquiry. In support of his contention, Mr. Dutt relies on an unreported decision in Criminal Revn. No. 157 of 1961 (Netai Sen v. J. B. Ghosh) and Criminal Revn. 223 of 1961 (J. B. Ghosh v. Nitai Charan Sen). It is a Bench decision. A. N. Ray, J., as His Lordship then was, held as follows:

The present Section 202 empowers the Magistrate either to enquire into the case himself or to allow the enquiry to be made by one of the persons mentioned in the Section. The fact that after receipt of the report a fresh enquiry was directed to be made by the same Enquiring Magistrate does not in my opinion, make any difference. It is the second enquiry which is, in my opinion, prohibited by the language of Section 202.

11. Amaresh Roy, J., in a separate judgment held as follows:

That Section (meaning Section 202) empowers the Magistrate either to enquire into the case himself or direct an enquiry or investigation to be made by a Magistrate subordinate to him or by a Police Officer by such other person as he thinks fit. The question is - can the Magistrate take recourse to all these alternatives one after the other or whether the power is limited to one or the other of four alternatives? The legislature has not used 'or a simpliciter' but has taken precaution in using the words 'either - or'. In my view, this clearly indicates that the intention is to empower the Magistrate to employ one or the other of the alternatives. He cannot employ two or more of the alternatives one after the other and he cannot employ two or more of the alternatives simultaneously.

12. In conclusion, His Lordship held:

In would, therefore, hold that there can be only one direction for an enquiry or investigation under Section 202 Cr.P.C and the second direction for further enquiry to be held by the same Magistrate cannot be held.

13. Mr. Dutt is conscious of the fact that there are some decisions of a single Judge, which have distinguished the above Bench decision. Mr. Dutt submits that with respect he disagrees with the decisions of the single Judges and fully relies on the principle laid. down by the Bench decision. In conclusion, Mr. Dutt submits that the Magistrate was wrong to pass an order for second enquiry and as such the proceeding should be quashed.

14. Mr. J. N. Ghosh, learned Advocate on behalf of the opposite party on the other hand, submits that in the three cases, namely, (i) : AIR1966Cal633 Manohardas Babaji v. Khandu Datta (ii) : AIR1967Cal114 , Kshitish Chandra Shome v. State and (iii) 0043/1968 : AIR1968Cal238 Sunil Majhi v. State the single Judges have rightly distinguished the facts of the Bench decision referred to earlier and as such it is for this Court to consider whether the principle as laid down in the Bench decision should be accepted.

15. In : AIR1966Cal633 A.K. Das, J. held that a Magistrate was not prohibited in ordering a second enquiry under Section 202. 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.

16. It is, however, seen that in paragraph 6 the learned Judge has referred to some of the findings Of the Division Bench but the concluding portion of findings of the learned Judges where they have clearly held that a second enquiry is prohibited under Section 202 of the Code has not been referred to. It is not also followed how the Bench decision was distinguished on facts.

17. In : AIR1967Cal114 it was held by A. K. Das, J.:

When a complainant files a naraji petition after the police officer submits his report on completion of enquiry on the complaint, the Magistrate can direct fresh enquiry under Section 202 Criminal P. C, for ascertaining the truth or falsehood of the complaint. Even treating the naraji petition as a fresh complaint, the Magistrate is entitled under the Section to send it for enquiry. His order directing such fresh enquiry is, therefore, valid.

18. In this case also, the learned Judge has distinguished the Bench decision. In this case also, we find that the learned Judge referred to only some portions of the observations of A, N. Ray, and Amaresh Roy, JJ. Their first conclusion was not referred to.

19. In 0043/1968 : AIR1968Cal238 T.P. Mukherjee, J., has held similarly on the question where a naraji petition is filed. His Lordship has also distinguished the Bench decision on facts, but the points of distinction have not been already stated.

20. On going through the provision of Section 202 of the Code, we are of the opinion that in a particular case if a Magistrate postpone the issue of summons then two courses are open to him. He can either make an enquiry into the case himseli or direct that an investigation be made. The Magistrate can direct an investigation to be made either by a Police Officer or by such other person as he thinks fit. If he makes an enquiry himself, he cannot direct investigation. Again, when he directs an investigation, he cannot enquire into the matter himself. This is exactly what has been found by their Lordships in the Bench decision referred to above in interpreting the provisions oi Section 202 of the Code. In view of the clear finding of the Division Bench, we cannot accept what has been laid down in the three decisions of the single Judges. In the result, it must be held that the order for second enquiry in the present case is illegal and, that being so, the impugned order must be set aside. But simply because the order for second enquiry is set aside, we are not quashing the entire proceeding. The learned Magistrate will proceed with the case on the basis of the first enquiry report and on other materials on record in accordance with law.

21. In the result, Criminal Revision 1408 of 1980 succeeds. The proceeding is quashed.

22. In Criminal Revision 1501 of 1980 the impugned order is set aside. The learned Magistrate is further directed to proceed with the case as directed above. The application is thus disposed of. Let the records go down early.

Monoj Kumar Mukherjee, J.

23. I agree.


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