Iqbal Ahamed Mondal vs State of West Bengal and others

Ranjit Kumar Bag, J.—The petitioner has challenged the order dated January 18, 2012 passed by learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas, in BGR Case no.242 of 2011 arising out of Basanti Police Station Case no.10 of 2011 dated January 9, 2011 under Sections 302/34 of the Indian Penal Code read with Sections 25/27 of the Arms Act by filing the revision under Section 401 read with Section 482 of the Code of Criminal Procedure.

It appears from the materials on record that on January 9, 2011, the petitioner, being the defacto complainant, filed a written complaint before the Officer-in-Charge of Basanti Police Station, on the basis of which Basanti Police Station Case no.10 of 2011 dated January 9, 2011 came into existence. The police investigated the said criminal case and submitted charge-sheet before the court of learned Magistrate on July 4, 2011 disclosing offence under Sections 302/34 of the Indian Penal Code against five accused persons. By the said charge-sheet, the Investigating Officer prayed for discharging the opposite party nos.2 to 7 from the said criminal case for want of evidence to prosecute them. Learned Magistrate took cognizance of the offence on July 17, 2011. Subsequently, the petitioner filed a petition of complaint before the court of learned Magistrate praying for further investigation of the said case. On January 18, 2012, learned Magistrate refused to give direction for further investigation of the criminal case as prayed by the petitioner and rejected the application filed by the petitioner. The said order passed by learned Magistrate on January 18, 2012 is under challenge in the instant revision.

Mr. Anand Keshari, learned counsel for the petitioner contends that the Investigating Officer did not examine and record the statements of charge-sheeted witness no.3, Narunnesa Mollah and charge-sheeted witness no.5, Meherunnesa Mollah. Mr. Keshari further submits that one Abdul Aziz Laskar, the scribe of the written complaint treated as FIR, has not been cited as witness in the charge-sheet. The further contention of Mr. Keshari is that the Investigating Officer has failed to collect sufficient evidence to prosecute the opposite party nos.2 to 7 for perfunctory investigation and as such there is need of further investigation of the criminal case.

Mr. Amarta Ghose, learned counsel for the opposite party no.1/State contends that the Investigating Officer did not record the statements of charge-sheeted witness no.3, Narunnesa Mollah and charge-sheeted witness no.5, Meherunnesa Mollal, though they have been cited as prosecution witnesses in the charge-sheet. He also submits that the scribe of the written complaint treated as FIR has not been cited as witness in the charge-sheet. According to Mr. Ghose, this lacuna in the investigation indicates that the Investigating Officer carried out the investigation in a perfunctory manner and as such further investigation may be carried out in this case for discovery of full facts and collection of sufficient evidence to prosecute the guilty.

Mr. Asimes Goswami, learned counsel appearing on behalf of the opposite party nos.2 to 7 submits that the Investigating Officer failed to collect the sufficient evidence to prosecute the opposite party nos.2 to 7 and as such they have been rightly discharged by learned Magistrate. He also argues that the scribe who has not been cited as witness can be examined after issuance of summons by invoking Section 311 of the Code of Criminal Procedure. According to Mr. Goswami, if the involvement of any person in the offence transpires in the evidence of prosecution witnesses during the trial of the case, the court has authority under Section 319 of the Code of Criminal Procedure to issue summons to those persons to face the trial. The sum and substance of argument advanced by Mr. Goswami is that there is no need of further investigation of this criminal case.

On perusal of the order dated July 17, 2011 passed by learned Magistrate, I find that learned Magistrate took cognizance of the offence under Sections 302/34 of the Indian Penal Code and proceeded against five charge-sheeted accused persons. Learned Magistrate also discharged the opposite party nos.2 to 7 on the ground that sufficient evidence could not be collected against them during investigation in order to prosecute them for the same offence. By the impugned order dated January 18, 2012, learned Magistrate refused to give direction for further investigation. Since learned Magistrate took cognizance of the offence, he cannot give direction for further investigation to the Investigating Officer for submission of report under Section 173(8) of the Code of Criminal Procedure. On perusal of the materials in the case diary, I find that the statements of charge-sheeted witness no.3, Narunnesa Mollah and charge-sheeted witness no.5, Mehrunnesa Mollah were recorded by the Investigating Officer on January 9, 2011. Accordingly, the submission made on behalf of the petitioner to the effect that the witnesses - Narunnesa Mollah and Mehrunnesa Mollah - were not examined and their statements under Section 161 of the Code of Criminal Procedure were not recorded, is not substantiated from the materials available in the case diary. It is true that the scribe of the written complaint has not been cited as prosecution witness in the charge-sheet, but the said scribe can be examined during the trial by invoking Section 311 of the Code of Criminal Procedure during the trial of the case. On perusal of the materials available in the case diary, I cannot persuade myself to form the opinion that the investigation was carried out by the Investigating Officer in a perfunctory manner. The logical inference is that there is no need of further investigation of the criminal case.

As a result, criminal revision is dismissed.

The department is directed to send down a copy of this order to the learned court below for favour of information and necessary action.