SAILENDRA NATH ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this revisional application under Section 401 and 482 of the Code of Criminal Procedure and under Article 227 of the Constitution of India the petitioner has challenged the charge-sheet No. 12 dated 29th January 1969, submitted by the Officer-in-charge, Kaliachak P. S. and the proceedings in G. R. Case No. 1280 of 1968, pending in the Court of Judicial Magistrate (II), Malda. The brief conspectus of the case is that sometime on 19-6-68 a cinema hall was collapsed due to severe Tornedo which was owned by the petitioner herein and over that incident one Razzak of Gharialichak lodged a complaint with the Officer-in-charge, Kaliachak P. S. regarding an unnatural death. The District Magistrate, Malda, who was alleged to be functioning under Section 159 of the Criminal Procedure Code directed his subordinate Executive Magistrate, Shri P. Chakraborty, a Magistrate First Class to hold a preliminary enquiry into the matter. The said Shri Chakraborty held a preliminary enquiry alleged to have been judicial in nature, in presence of the Police of Kaliachak P. S. in which he examined witnesses of both sides (who are the other side that is not known and clear) and thereafter submitted the report that no criminally has been revealed in that matter and he submitted the report on 20-7-68 which was accepted by the District Magistrate on 22-7-68. It is alleged that the police submitted charge-sheet on 29-7-69 on the basis of cognizance taken. It is apposite to mention here that everything happened under the old Criminal Procedure Code.

(2.) Appearing for the accused/petitioner the learned senior counsel Mr. A. P. Chatterjee submitted that under Section 156(1) police is empowered to make investigation in a cognizable offence without the permission or order from a learned Magistrate regarding which the learned Magistrate has territorial jurisdiction. Sub-Section (2) of Section 156 contemplates that no proceedings of a police officer in any case shall, at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. Sub-Section (3) envisages that any Magistrate empowered under Section 190 may order such an investigation as mentioned earlier. So Section 156(3) gives a clear picture regarding the power of the Magistrate, regarding the power of a Police Officer and regarding the bar as contemplated under sub-Section (2). Under sub-Section (1) of Section 157 of the Code of Criminal Procedure (Old) if any information is received by the Officer-in-charge of a Police Station and he has reason to suspect commission of an offence which he is empowered to investigate under Section 156 he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence. If such information is given to the Magistrate by the Police then that are the duties and powers of the Magistrate is envisaged under Section 159 of the Code of Criminal Procedure (Old). The Magistrate may direct investigation or he may direct preliminary enquiry by a Magistrate subordinate to him. As has already been mentioned in the instant case there is no clear indication as to how the District Magistrate came to know of the fact. Even if it is assumed that the police brought it to the notice by way of information to the learned Magistrate about the incident, the learned Magistrate passed an order under Section 159 for preliminary enquiry and the matter was enquired by a subordinate Magistrate and he submitted his report and the learned District Magistrate accepted the same. From the order impugned it appears that after completion of the enquiry the report which was submitted, though a preliminary enquiry was held, is not a judicial report but an administrative report. If it is an administrative report, in my view, Section 159 has no application in the matter. Even if it is a judicial report, then that judicial report has been submitted when the police has already started investigation and in that event the Magistrate has no power to direct further enquiry.

(3.) Appearing for the State learned Public Prosecutor advanced that contention and in support of his contention he relied upon a Supreme Court decision in the case of S. N. Sharma v. Bipin Kumar Tiwari, reported in AIR 1970 SC 786 : 1970 Cri LJ 764 : 1980 All LJ 1348, where the Supreme Court held that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate and it is only in case where police decide not to investigate the case that the Magistrate can intervene and either direct investigation or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. In other words when a final report is submitted by the police under Section 173 it is open to the Magistrate either to direct further investigation or to direct enquiry as contemplated under Section 159 but where no final report has been submitted but charge-sheet has been submitted, the learned Magistrate has no power either to direct further investigation or to direct an enquiry. So the submission of Mr. Chatterjee that as the Magistrate has directed an enquiry, it was not open for the Magistrate to direct further investigation is of no avail because in the instant case no final report has been submitted but charge-sheet has been submitted. In such view of the matter I find no illegality, incorrectness or impropriety in the order of the learned Magistrate and accordingly I find no merit in this revisional application. Hence the revisional application is dismissed. Application dismissed.