BADAL BHATTACHARYA Vs. SUB DIVISIONAL MAGISTRATE ALIPORE

JUDGEMENT

(1.) THIS Rule was issued at the instance of one Badal Bhattacharyya, a student of Dinabandhu Andrews College and Secretary, Vidyarthi Parishad, upon the Sub-Dvisional Magistrate at Alipore to show cause why Case No. 806 of 1964 pending in the Court of the Sub-Divisional Magistrate should not be transferred to the court of the Chief Presidency Magistrate at Calcutta. The petitioner's case is that he made a petition of complaint before the learned Sub-divisional Magistrate alleging that one Bhudeb Sen was shot with a revolver by a police officer on the 10th of January, 1964 at about 12 noon in front of tile said college and that as a result of the injuries received Bhudeb Sen died at about 4 P. M. at Mugnesram Ramcoomer Bangur Hospital. it is alleged in that petition that students of the said college on humanitarian grounds decided to hand over a memorandum to the Deputy High Commissioner of Pakistan in Calcutta having his office at a distance of some miles from the said college, In pursuance of the said decision the students of the said college formed a peaceful and unarmed procession and proceeded a few hundred yards when a police force came in a van to the said college and stopped the procession from proceeding. The incident occurred at about 12 O'clock. It is stated in paragraph 27 of the petition of complaint, "about 12 noon the same day and in such condition as aforesaid the place and its neighbor hood, all the students being locked up in the said premises and with the said Bhudev Sen confined and isolated inside the said passage as aforesaid the said offender armed with a revolver got down from the said Jeep on the said Raja Subodh Mullick Road accompanied by another person being either a police driver or a constable and at once the said offender and his said companion proceeded towards Bhudev Sen and immediately thereafter the said companion of the said Officer attacked the said Bhudev Sen with firsts and blows and overpowered him ; and while the said Bhudev sen was so overpowered and helpless, the said offender deliberately and maliciously without any cause justifiable or at all and with the intention of causing death discharged the revolver twice at the said Bhudev Sen from a very close and point- blank range of not more than one or two feet as a result whereof the said Bhudev Sen was hit by two bullets on the vital parts of his body and dropped down on the spot. " He was taken to Bangur hospital where he died in the afternoon. The petition of complaint was filed on the 18th April, 1964. The main prayer in the petition of complaint is, "this Court be pleased to take cognizance of the said offence punishable under sec. 302 of the Indian Penal Code being murder as aforesaid of the said Bhudev Sen with shots from a revolver on the 10th January, 1964, at about 12 noon at or about the passage leading to and/or forming a part of the premises no. 106. Raja Subodh Mullick Road at Garia and mentioned in the petition within the jurisdiction of the then Tolly gung, now re-named as Jadavpur Police Station in the district of 24 Parganas and within this Court's jurisdiction with a view to taking action under the Code of Criminal Procedure with regard to the said offence. " Another prayer is that the Court enquires or in the alternative, directs an enquiry by another Magistrate, into the aforesaid offence and that upon such enquiry the identity of the offender be ascertained and the said offender be committed to trial for the murder of Bhudev Sen. On that date the learned Magistrate heard the learned Counsel for the complainant and Went through the petition of complaint and thereafter called for the police papers and adjourned the matter to 22nd April, 1964.

(2.) ON the 22nd April, 1964 the complainant filed a petition before the learned Magistrate praying inter alia for [staying further proceedings as he wanted to move this Court for a transfer of the case on the ground that the complainant wanted to call the learned Magistrate as a witness in the case. On the 22nd April the learned Magistrate made an order that the complainant might take his complaint to a proper court for the redress of his grievances. It appears that the learned Magistrate has not proceeded in accordance with law. There is no doubt that the learned Magistrate took cognizance of the offence on the petition of complaint although he does not say so in his order dated the 22nd April. It is not very clear from the order of the learned Magistrate what really he means. The learned Magistrate observes in his order, "the F. I. R. and the charge-sheet of the police case were called for and looked into not with the object of ascertaining the truth or otherwise of the allegation made in the complaint but with the sole object of seeing whether or not the prosecution is barred by law. " Thereafter he considered the provisions is barred by law. " Thereafter he considered the provisions of sec. 132 of the code of Criminal Procedure and observed, "now the facts and circumstances as set forth above do not permit me to take any action either under sec. 200 Cr. P. C. or under sec. 202 Cr. P. C. as sec. 132 Cr. F. C. stands as a bar to the prosecution sought to be launched against the accused, an unknown police officer of the rank of a Sub-Inspector of Police or Inspector of Police as the accused has been described in the complaint. " it appears that the matter was misconceived. The question whether or not sec. 132 was a bar to the prosecution did not arise at that stage.

(3.) THE learned Magistrate thereafter proceeded to observe "in view of what I have said above I do not consider it necessary to discuss the arguments made to-day regarding taking of cognizance and whether the calling for the record of the police case amounted to my taking cognizance of the offence. " Although the Magistrate had made these observations it is clear that he had taken cognizance on the petition of complaint. Therefore he was required to examine the complainant under sec. 200 Cr. P. C, but the learned Magistrate thought that he could not do so as sec. 132 Cr. P. Code was a bar to the prosecution. As has been pointed out above, the learned Magistrate was wrong in thinking that at that stage sec, 132 could be treated as a bar but the learned Magistrate did not stop there. After observing that sec. 132 was a bar the learned Magistrate stated in the order, "i, however, refrain from passing final orders on the complaint as the complainant filed a petition this morning before the commencement of the hearing or before the passing of orders, wherein he says that he has intention of examining me as a witness for reasons stated in the said petition. " Obviously he made those observations-in view of the stay petition which had been filed by the complainant, but these indicate that he had taken cognizance. The learned Magistrate did not pass any final order and made an order which is not warranted by provisions of law, namely, "the complainant may now take his complaint to a proper court for the redress of his grievances. "