SANJIB DUTTA CHOWDHURY Vs. SUBIR SARKAR & ORS.

JUDGEMENT

(1.) A police case was started against the petitioner on a complaint made by the opposite party which, however, ended in a final report and on accepting the same the learned Magistrate discharged the petitioner. About ten weeks thereafter it is said that the opposite party made a complaint before a competent Magistrate on the same allegation. The learned Magistrate examined the complainant and the witnesses but postponed the issue of process and sent for the police diary in the investigation by the police and eventually on perusal of the same and the testimony of the complainant and his witnesses, he took the view that a prima facie case against the present petitioner was made out under section 342, I.P.C. and process was issued accordingly. In this Rule the petitioner has challenged this order on the ground that the learned Magistrate had exceeded jurisdiction in looking to the police diary before issuing process.

(2.) Sec. 202, Code of Criminal Procedure permits a Magistrate to postpone the issue of process and either enquire into the case himself or direct an investigation by police or by such other persons as may be thought fit for the purpose of deciding whether or not there was sufficient ground for proceeding. In the instant case there was no direction for investigation by police or by any other person and, therefore, the question which calls for adjudication in this Rule is whether it was open to the learned Magistrate to look to the police diary as a part of the enquiry made by him under section 202, Cr. P. C. The issue of process is a matter for judicial determination and in this process the Magistrate is expected to confine himself to the materials on the record before him. If the position was otherwise, it would enable a Magistrate to turn to almost anything he might lay his hand upon which cannot be allowed in any judicial proceeding. If really the Magistrate was of the opinion that there were persons whose statements in police papers provided material justifying issue of process, the Magistrate could and certainly should have secured the presence of such persons for examination in court. Without such examination, it will be manifestly unjust to use the statement occurring in the police diary. Reference may be made in this connection to the decision of the Supreme Court in Chandra Deo Singh Vs. Prakash Chandra Bose alias Chhabi Bose & anr. A.I.R. 1963 S.C. 1430 . In that case one Panchanon lodged an F.I.R. with the police alleging that one Prakash had killed a man named Nageswar who was a darwan under the informant's master. The police undertook investigation but submitted a final report. Thereafter one Mahendra, claiming himself to be a relative of the deceased, filed a complaint before a Magistrate which was referred to another Magistrate for holding a judicial enquiry. During the pendency of this enquiry, one Chandra Deo, a nephew of the deceased, filed another complaint stating that Prakash had murdered the deceased. This complaint was also sent to the same Magistrate for a judicial enquiry and in such circumstances, it has been observed by the Supreme Court that in deciding whether there was ground to proceed on the complaint filed by Chandra Deo, it was not open to the Magistrate to consider the statements recorded by the police during investigation in the case started by Panchanon or even the evidence adduced before the Magistrate in the enquiry arising out of the complaint filed by Mahendra. Therefore, there cannot be any manner of doubt that the contents of the police diary in a previous investigation, by police even relating to the same allegation must be regarded as matters extraneous to the proceeding before the Magistrate. All that the learned advocate for the State had to say by way of reply was that section 172(2), Code of Criminal Procedure permits a Magistrate to send for police diary and to use the same not as evidence but as an aid to enquiry or trial. He has also tried to derive support from the Full Bench decision of this Court in A. K. Roy Vs. State of West Bengal, A.I.R. 1962 Cal 135 . Now, section 172(2), Cr. P. C. provides that a criminal court may send for the police diary of a case under enquiry or trial in such court and may use such diary not as evidence in the case but to aid it in such enquiry or trial. Therefore, a plain perusal, of section 172(2), Cr. P. C. makes it abundantly clear that a police diary may be used but only in the enquiry or trial to which the diary relates in such court and it contains no warrant for use of the diary in any other case. The result is that in the instant case the Magistrate could not use the police diary to arrive at a decision whether process should be issued or not on the complaint filed by the opposite party, for the simple reason that the diary did not relate to the enquiry before the Magistrate. The Full Bench decision cited by the learned advocate for the State is hardly relevant. In that case, a final report was submitted by the police after investigation but a Magistrate on consideration of the material in the diary took the view that prima facie the accused was guilty of the offence alleged and accordingly he directed the police to submit a charge sheet. In such circumstances, questions arose among others whether a Magistrate can direct the police to submit a charge sheet and whether the Magistrate could call for and ceruse the case diary. Their Lordships answered the latter question in the affirmative and the majority decision was that the Magistrate could not direct the police to submit a charge sheet. The learned advocate for the State probably relied upon this decision because it was held that it was open to she Magistrate to look to the police diary and to take cognizance of the offence. The power of the Magistrate to look to the police diary in connection with the enquiry before him can never be doubted as it is expressly provided in section 172(2), Cr. P. C. The question in the instant Rule is whether use of police diary is permissible in some other enquiry and the foregoing decision is by no means an authority for the proposition that a police diary can be used even in connection with an enquiry in some other case.

(3.) For reasons stated above I am clearly of the opinion that the learned Magistrate has committed an error by issuing process after perusal of the police diary in the previous investigation. Therefore, the impugned order cannot be sustained and the learned Magistrate should be given a direction to decide whether any ground to proceed has been made out by the evidence on record and the result of such further enquiry as may be held in accordance with law and considered necessary by him.