ASOKE CHATTERJEE Vs. MANISHA MUKHERJEE

JUDGEMENT

(1.) DECEMBER 23, 1974 Sm. Manisha Mukherjee, the opposite party in this Rule, filed a complaint before the Chief Metropolitan magistrate, Calcutta, alleging commission of offences by the petitioner Asoke chatterjee under sections 417 and 493 of the Indian Penal Code. The learned Magistrate examined the complainant and her mother Sin. Pratima Mukherjee but thought that further probe would be necessary and accordingly directed the Deputy Commissioner of police, Central, to make a personal enquiry and submit a report. On January 27, 1975, the record was put up before Sri R. N. Kali, Metropolitan magistrate, who was dealing with the file of the learned Chief Metropolitan magistrate, Calcutta. The police had in the meantime submitted a report which did not support the complainant the complainant then made an application for transfer of the case to some other Magistrate for favour of disposal. Sri Kali directed the records to be placed before the learned Chief Metropolitan Magistrate, Calcutta. On February 18, 1975, the records were put up before the learned Chief Metropolitan magistrate who perused the police report and also the notation filed by the complainant. The learned Chief Metropolitan Magistrate thereafter on a consideration of the applicant on allowed time to the complainant until February 21, 1975, to produce certain documents and the said date was also fixed for hearing. On February 21, 1975, the chief Metropolitan Magistrate heard the complainant and directed the documents filed on her behalf to be kept on record and fixed March 1, 1975, for orders. On March 1. 1975 the learned magistrate rejected the enquiry report filed by the police and directed Sri g. C. Dey, Metropolitan Magistrate, 6th Court, Calcutta, to make an enquiry into the allegations of the complainant and submit a report The learned metropolitan Magistrate, 6th Court, calcutta, held an enquiry and recorded evidence and submitted a report recommending issue of process against the petitioner under sections 417 and 493 of the Indian Penal Code. The learned Chief Metropolitan Magistrate after considering the records and the report of the learned Magistrate, 6th court, Calcutta, by his order dated April 19, 1975 ordered issue of process against the petitioner under section 493 of the Indian Penal Code and on May 19, 1975 transferred the case to Sri R. N. Kali, Metropolitan magistrate, 11th court, Calcutta, for disposal.

(2.) ON July 2, 1975, the petitioner filed an application before Sri Kali submitting inter alia, that the issue of process was in violation of the provisions of section 202 of the Code of Criminal Procedure. 1973 and the whole proceeding was as such illegal and prayed that the proceeding may be dropped. They learned Magistrate by his order dated July 21, 1975 rejected the contention of the petitioner and fixed August 7 and 8, 1975, for further r. N. Kali on July 21, 1975 has been impugned in this rule.

(3.) IT is the contention of Mr. Balai chandra Ray learned Advocate appearing on behalf of the petitioner, that the order cussed by the learned chief Metropolitan Magistrate, Calcutta, on March 1, 1975, directing a further enquiry by a learned Magistrate under section 202 of the Code of criminal Procedure, 1973, was without jurisdiction and has vitiated the issue of process based on such a report. Mr. Sudhir Gopal Poddar, learned Advocate appearing on behalf of the State, has supported Mr. Ray, Mr. Nalin chandra Banerjee, learned Advocate appearing pearing on behalf of the complainant opposite party, very fairly conceded that the order of the learned Chief metropolitan Magistrate, Calcutta, ordering an enquiry by a learned Magistrate cannot be supported in view of the language of section 202 of the Code of Criminal Procedure, 1973. Section 202 (1) of the Code of Criminal Procedure, 1973 is in the following terms: -