MANOHARDAS BABAJI Vs. KHANDU DUTTA

JUDGEMENT

(1.) The short question that arises in this application under Section 439 O. P. C. is whether the learned Magistrate's order directing a second enquiry under Section 202 Cr. P. C. is illegal and should be set aside.

(2.) The opposite party Khandu Dutta filed a complaint before a learned Magistrate at Purulia against the present petitioners alleging that the petitioners dragged the complainant's father Kishori from the road to their gate and attempted to take a photograph. On Kishori's protest, he was assaulted and a photograph was taken. Thereafter, his signature was also taken on point of gun on a khata and ultimately, he was rescued by some neighours. The learned Magistrate after examination of the complainant directed the officer-in-charge to enquire and report. On receipt of the report the learned Magistrate passed the following order: 21-5-64 Complt. present. Seen enquiry report submitted by O. C. The report is challenged. Let the complt. prove his case in a judicial enquiry. The petitioner-accused then appeared and filed an objection challenging the learned Magistrate's order directing a fresh judicial enquiry. By his order dated 1-7-64, the learned Magistrate rejected the petition on grounds stated in the order, a copy of which has been placed on record.

(3.) Mr. Ajit Kumar Dutt, learned Advocate for the petitioner, has argued that after a full-fledged enquiry by the officer-in-charge under Section 202 of the Cr. P. C., a second or a further enquiry under the same section by a Magistrate or by any other agency is neither contemplated in law nor is warranted by the provisions of the Criminal Procedure Code. In this connection, he has referred to an unreported decision of this Court in Revision Cases Nos. 157 of 1961 and 223 of 1961 (Cal) Section 202 of the Criminal Procedure Code provides that any Magistrate on receipt of a complaint of an offence, may, if he thinks fit for reasons to be recorded in writing, postpone the issue of process and direct an enquiry or investigation to bo made by any Magistrate subordinate to him or by a police officer or by such other person as be thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. The clause "direct an enquiry or investigation does not mean one enquiry or one investigation only and it would be wrong to interpret it as limiting to one such enquiry or investigation. Indeed, this enquiry and investigation in "for the purpose of ascertaining the truth or falsehood of the complaint" and it is reasonably clear from the section itself that the legislature never intended to restrict the Magistrate's power or right to one enquiry only. Mr. Dutta argued that although on the wording of the section, no rigid rule restricting the enquiry to once only can be laid down, even so, if there is a complete enquiry--as opposed to a penfunctory or incomplete enquiry, the Magistrate cannot direct another enquiry. His argument in substance appears to be that in suitable case where the enquiry was perverse or perverted and even perfunctory or where the Magistrate thinks that the enquiry is not helpful in ascertaining the truth or falsehood of the complaint he is entitled to refer the matter to another agency mentioned in the section for the purpose of an enquiry. Indeed, it is difficult to conceive of a case where the Magistrate is not so satisfied but would even then, refer the matter for an enquiry by another agency suo motu or simply because an objection is filed by the complainant. The very fact that the learned Magistrate after having seen the enquiry report and taking note of the fact that the report is challenged, sends it to a Magistrate for judicial enquiry, clearly shows that he did not consider the report to be sufficient for the purpose of ascertaining the truth or falsehood of the complaint. There is therefore nothing wrong in the learned Magistrate's exercising the power of judicial enquiry under Section 202 Cr. P. C. in the manner he bas done.