DILIP MUKHARJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The hearing stems from an application under section 401 read with section 482 Cr. PC filed by the petitioner praying for quashing the proceeding being Sessions Case No. 11(9)99 under section 302 IPC pending in the Court of learned Additional Sessions Judge, 11th Court, Alipore, 24 Pgs(S).

(2.) The circumstances leading to the above application are that one Jamuna Mondal, wife of Dulal Mondal, a resident of 193 Raja Dinendra Street, Calcutta - 700 009 with her husband, two sons and one daughter, used to work as a cook in the house of one Chandrima Das. A deep relation developed between her and the present petitioner Dilip Mukherjee who used to work in the house of one Nirmal Roy, uncle of Chandrima, and even after leaving her job she maintained her connection with the petitioner. On 23.06.93 at about 1.45 p.m. at the call of the petitioner when she had been to the ground floor room of 189 Raja Dinendra Street, the petitioner all sudden started abusing her and assaulted her with a sharp-cutting weapon from the back on her neck and shoulder resulting in her severe bleeding, injury and fall on the ground followed by her removal to R.G. Kar Medical College & Hospital where she succumbed to injuries on 20.07.93. On the basis of FIR, Ultadanga P.S. Case No. 77 dated 23.06.93 under section 307 1PC was started which, was subsequently converted to one under section 302 IPC. After completion of investigation charge sheet under section 302 IPC was submitted on 05.05.94. It has been contended by the petitioner that no document under section 173(5) was forwarded to the learned Magistrate, and the investigation could not be completed within three years in accordance with the provisions of section 167(5) Cr. PC, as amended.

(3.) Mr. Tapas Midya, learned counsel for the petitioner, on referring to the cases of S.N. Musadi v. State of Bihar, reported in AIR 1980 S.C. 506, Birendra Kumar Roy v. Hindusthan Fertiliser Corporation, reported in 101 CHN 383 and Kalpana Ghosh v. State of W.B., reported in 100 CHN 603 advanced argument contending that since charge sheet was submitted unaccompanied by the documents contemplated under sub-section (5) of section 173 Cr. PC, and the learned Magistrate had no occasion to look to the said documents, cognizance taken by the learned Magistrate cannot be said to be in accordance with the law and as such the proceeding is liable to be quashed. Mr. Midya relying on the cases of Shaktisadhan Majhi v. State, reported in 1993(II) CHN 154 and Ajit Kumar Barman v. State of West Bengal, reported in 1995(II) CHN 96 argued that since the charge sheet was submitted beyond the period specified in sub-section (5) of section 167 Cr. PC, as substituted by the West Bengal Amendment Act, 1988, cognizance taken of the offence on the basis of such investigation is bad in law and void. Mr. S.S. Roy, learned counsel for the State, on the other hand, on referring the cases of P.V. Venkateswaran v. State, reported in 1998 C.Cr.LR (Cal.) 139. Suresh Mohato v. State of West Bengal, reported in 1997 C.Cr.LR (Cal.) 122 and Inspector of Police, C.B.I. v. Manique Majumdar, reported in 1997 C.Cr.LR (Cal.) 126 submitted that when the police report with sufficient particularity and clarity specifies the contravention of the law which alone can well constitute the foundation for taking cognizance by the learned Magistrate under section 195(1)(b) Cr. PC, there was nothing wrong on the part of the learned Magistrate in taking cognizance without looking into or considering the documents and statements as contemplated under sub-section (5) of section 173. On referring the case of Md. Yusuf Rather v. State of West Bengal, reported in 1998 C.Cr.LR (Cal.) 469, Mr. Roy further contended that the relief under section 167(5) Cr. PC is available only when the investigation is pending, but where charge sheet has been submitted after completion of investigation there is no scope for availing of the relief under section 167(5).