JUGAL KISHORE DHANDHANIA Vs. STATE

JUDGEMENT

(1.) THIS Rule is at the instance of the complainant-petitioner, Jugal Kishore Dhandhania, against an order dated the 21st March, 1970 passed by Shri S. C. Roy. Additional Chief Presidency Magistrate, Calcutta, dismissing the petition of complaint under section 203 Criminal Procedure Code in case No. C/36 of 1970, instituted under section's 217, 221 I. P. C, and 13b (c) and (d) of the Calcutta Police Act, 1866 read with section 34 I. P. C.

(2.) THE facts leading on to the Rule are short and simple. On the 9th February, 1970 a petition of complaint was filed in the court of Shree S. C. Roy, Additional Chief Presidency Magistrate, Calcutta by the complainant, Jugal Kishore Dhandhania, under sections 217, 221 I. P. C, and 13b (c) and (d) of the Calcutta Police Act, 1866 read with section 34 I. P. C, against three accused persons viz. , Ajit Kumar Chatterjee, O. C Jorasanko P. S. , S. I. , P. Chakraborty and S. I. S. Ghosh, both attached to the said P. S. The prosecution case as made out inter alia is that on 7. 11. 69 at about 9-30 p. m. about 25 men who came to the complainant's residence at No. 203, Chittaranjan Avenue, Calcutta made attempts on his life by hurling at him bombs which exploded with loud bangs but the complainant luckily escaped. Before the bombs were thrown the complainant, apprehending serious troubles, had already telephoned the lalbazar Headquarters for help but the police did not turn up. Immediately after the bombing, the petitioner telephoned again and was told by the officer on-duty that he had already informed the Jorasanko P. S. to send forces to the spot immediately. Some time after the incident, the accused No. 2, S. I. , P. Chakraborty came to the place of occurrence and collected some bombs or their parts but neither the splinters of the bombs hurled were collected nor were the statements of the witness to the occurrence were recorded. On 8. 11. 69 the complainant wrote a letter to the accused No. 1, O. C. , Jorasanko P S. relating to the abovementioned incident and requested him to take up the case and on 9. 11. 69 at about 11-15 p. m. one of the offenders, who had thrown bombs on the complainant, was arrested by the accused No. 3, S. Ghosh on identification by the complainant and taken to the accused No. 1. Repeated attempts how ever made by the complainant thereafter to ascertain the progress of the investigation brought no response and ultimately he had to move before the Joint commissioner of police on 20. 11. 1969 a petition addressed to the Commissioner of Police stating the facts of the incident and praying for orders for a proper investigation. Orders were passed there upon by the Joint Commissioner of police but inspite of the same there was no progress and on 27. 11. 69 the complainant again wrote to the Joint Com missioner of Police, Calcutta to see that justice was done and the police were not influenced by influential persons. A petition was also moved by him on 3. 12. 69 before the then Deputy Chief minister complaining that some persons having influence over the police were bent on having the case hushed up and he was assured of necessary orders. There was again no progress and being encouraged by the police inaction, some offenders threw bombs on another premises belonging to the complainant at 138, Ramdulal Sarkar Street Calcutta, causing some damages but no case was started by the O. C. , Burtollah police or the accused No. 1. On 2. 1. 70 a petition was moved before the Additional chief presidency Magistrate, Calcutta praying for direction on the B. C. , D. D. to hold an investigation into the case of bomb throwing. Orders were passed by the court accordingly and the D. C. , D. D. directed S. I. , A. K. Ganguly, attached to the Anti-Rowdy Department, Calcutta police, to hold an investigation. The complainant came to know from S. I. A. K. Ganguly that the person arrested on 9. 11. 1969 on the complainant's identification was set free by the accused No. 3 on the same night under the orders of the accused No. 1, without taking a recognition bond for his appearance before the Magistrate in violation of section 76 of the Calcutta Police Act, 1866 and the corresponding provisions of the Criminal Procedure Code, committing thereby offences under sections 221 i. P. C. and 13b of the Calcutta Police act, 1866. It was further alleged by the complainant that the accused Nos. 1 and 2, in collusion with each other, are further guilty of dereliction of duty as laid down under sections 10a (1) (a)and (d) of the Calcutta Police Act, 1868 by refusing to obtain intelligence concerning the commission of the said cognizable offence and to arrest the other offenders, committing there by offences under sections 217 and 221 i. P. C. as also under section 13b of the calcutta Police Act, 1866. It was also alleged that all the accused persons had a common intention to save the offenders referred to above from legal punishment. It was prayed ultimately that in the circumstances, process as prayed for may be issued against the accused. The additional Chief Presidency Magistrate, calcutta examined the complainant and by his order dated 9. 2. 70 sent the matter to Shri P. C. Chakraborty, Presidency magistrate, 4th Court, Calcutta for holding a judicial enquiry and to report by the 24th February, 1970. The transferee magistrate thereafter examined six witnesses, including the complainant, during the judicial enquiry. A number of documents or their copies were also produced by the witnesses and marked as exhibits 1 to 18 and a report of investigation by S. I. , A. Mazumdar, attached to the Jorasanko P. S. purported to have been submitted by the said Sub-Inspector to the Officer-in-Charge, Jorasanko Police Station was also filed and marked Id. 4. The enquiring magistrate submitted his report on the 20th March, 1970, recommending the dismissal of the complaint on the ground that no prima facie case was made out against any one of the accuse j under the offences as alleged. The complainant filled a petition against the said report before the Additional Chief Presidency Magistrate on the same date viz. , 20. 3. 70 praying inter alia for a process also against the Sub-Inspector A. Mazumder, as being an active participant in the conspiracy to hush up the case. The additional Chief Presidency Magistrate on hearing the learned lawyer for the complainant fixed 24th March, 1970 for orders. On 24. 3. 70, on a perusal of the report of the judicial enquiry as also the petition of objection filed by the complainant and on a consideration of the submissions made by the learned lawyer for the complainant in support of the petition, the Additional Chief presidency Magistrate ultimately dismissed the petition of complaint under section 203 Criminal Procedure Code. This order has been impugned and forms the subject-matter of the present Rule.

(3.) A short point of law is involved in the Rule relating to the scope and ambit of section 203 Criminal Procedure code with emphasis on the true meaning of the words "the result of the investigation or enquiry (if any ). Mr. Jugal Kishore Dhandhania, the com plainant-petitioner, appeared in person and contended that the expression "the result of the investigation or enquiry" contained in section 203 of the Code, though not limited to the ultimate report only and includes the materials adduced during the investigation or enquiry, certainly rules out any in admissible material let in during such enquiry or investigation under section 202 Criminal Procedure Code from consideration in the context of section 203 Criminal Procedure Code. The steps of Mr. Dhandhania's reasoning are that a proceeding under section 202 of the code is a judicial proceeding attracting the provisions of the Indian Evidence act, 1872; that section 4 (l) (m) Criminal Procedure Code defines a "judicial proceeding" as including "any proceeding in course of which evidence is or may be legally taken on oath"; that contents of G. D. entry are not pieces of substantive evidence; that copies of the documents without the originals being produced are not evidence as well as the report of investigation by a police officer; that the Additional Chief Presidency Magistrate who had not taken into consideration a number of documents and witnesses proved or examined during the judicial enquiry has nonetheless taken into consideration the aforesaid pieces of inadmissible evidence to arrive at his ultimate conclusion and that as a result thereof the ultimate finding has been vitiated. The complainant-petitioner also cited two cases in support of his proposition and the same would be considered in their proper context. Mr. Debaprosad Chowdhury, Advocate appearing on behalf of the State joined issue. He submitted that there has been no misinterpretation of the scope and ambit of section 203 Criminal Procedure code by the court below the result of the investigation or enquiry" cannot be circumscribed to apply only to the ultimate report submitted under section 202 Criminal Procedure Code but that includes all the materials adduced during such enquiry or investigation including the G. D. Entries, the documents and the report of investigation filed; and that the court of fact can consider such materials whereto the magistrate or the person concerned, holding the investigation or enquiry, had applied his mind for "ascertaining the truth or falsehood of the complaint" within the bounds of section 202 Criminal Procedure Code. Mr. Chowdhury further submitted that it cannot also be overlooked that the g. D. Entries in question, impugned by the complainant-petitioner, have in fact been proved in course of the enquiry. In this context Mr. Chowdhury referred to two cases which will be duly considered. The point involved being one of law and of some importance, the court requested Mr. Nalin Chandra Banerjee, a Senior Advocate of this Court, to appear as amicus curiae and Mr. Banerjee agreed to do so. The matter came up thereafter for further hearing.