Krishna Chandra Paul and Others vs Md. Nantu Sk. and Another

D.P. Sengupta, J.—Inspite of service none appears for the opposite parties. Affidavit of service may be kept with record. The matter is taken up for hearing.

This revisional application is for quashing of a proceeding being C.R. Case No. 177 of 1994 pending In the court of the learned sub-Divisional Judicial Magistrate, Kalna, Burdwan.

The Opposite party No. 1 filed a petition of complaint in the court of the learned Sub-Divisional Judicial Magistrate, Kalna alleging commission of an offence u/s 406/420 of the Indian Penal Code. In the petition of complaint it was alleged that the opposite Party No. 1 took a loan of Rs. 6000/- on 28.6.1991 from the Bank of India, Dhatrlgram Branch by mortgaging a gold ornament weighing about 0.38 grams. It was alleged that the Opposite Party No. 1 paid Rs.8.328/- in full payment of the said loan with interest on 10.6.94. But the Bank authority refused to return the mortgaged gold ornament.

On receipt of the said complaint the learned Magistrate by his order dated 8.9.94 took cognizance of the offence and directed the Officer-in-Charge, Kalna police station to make an enquiry u/s 202 of the Code of Criminal Procedure and submit a report. Pursuant to such direction one Assistant sub-Inspector of Police. Kalna police station made an enquiry and submitted a report u/s 202 of the Code of Criminal Procedure. The said report was forwarded to the learned Magistrate by the Oulcer-ln-Charge of Kalna police station.

Mr. Pradlp Ghosh, learned Advocate appearing for the petitioners submits that the order dated 8.9.94 is illegal and without Jurisdiction in as much as the learned Magistrate directed an enquiry u/s 202(1) Cr.PC by the Officer-In -Charge of Kalna P.S. without examining the complainant and his witnesses present in utter violation of the mandatory provision of proviso (b) to sub-section (1) of section 202 of the Code of Criminal Procedure. Mr. Ghosh further submits that the report submitted by the police Is also Illegal and unauthorised as the said report was submitted on the basis of an enquiry made by an Assistant sub-Inspector of Police who was not authorised by the learned Magistrate for holding such enquiry. Mr. Ghosh relies on a judgment reported In 1998 (3) Crimes 143, in which It was held by learned single Judge of this court that the person directed by the learned Magistrate to hold an enquiry u/s 202(1) Cr.PC can not delegate his function to some other person and the person so delegated acquires no Jurisdiction to investigate.

I have carefully gone through the entire order sheet of the court below and I am of the opinion that the Initial order dated 8.9.94 taking cognizance of the offence and directing an enquiry u/s 202 Cr.PC, suffers from serious Illegality. Proviso (b) to section 202(1) Cr.PC runs as follows:--

"Postponement of Issue of process--(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him u/s 192 may, If he thinks fit, postpone the issue of process against the accused, and either Inquire Into the case himself or direct an Investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding;

Provided that no such direction for Investigation shall be made.

(a) Where It appears to the Magistrate that the offence complained of is triable exclusively by the court of session; or

(b) Where the complaint has not been made by a court unless the complainant and the witnesses present (if any) have been examined on oath u/s 200."

From a reading of the aforesaid section it becomes evident that unless the complainant and the witnesses present are duly examined an enquiry and report u/s 202(1) can not be called for and If it ts done the same would be without jurisdiction and can not form the basis of further action. An omission to comply with" the provision of proviso (b) to subsection (1) of section 202 Cr.PC amounts to serious illegality.

Proviso (b) to sub-section (1) of section 202 Cr.PC makes It clear that a direction for investigation u/s 202(1) can not be given before examining the complainant and his witnesses present (if any). Proviso (b) is mandatory and so an order of Investigation, made u/s 202(1) without examining the complainant and his witnesses (except when the complaint is made by a court), shall be without Jurisdiction and liable to be quashed.

It appears from the enquiry report that one Assistant sub-Inspector of Police made an enquiry u/s 202 Cr.PC and submitted a report which was forwarded by the Officer-in-Charge, Kalna P.S. to the learned Magistrate. On receipt of such report the learned Magistrate by his order dated 30.3.96 directed Issue of process u/s 406 of the Indian Penal Code against the petitioners solely on the basis of such enquiry report. Mr. Ghosh, learned Advocate for the petitioners submits that the enquiry report submitted by the police is illegal, unauthorised and void in as much as the said report was submitted on the basis of an enquiry held by one Assistant sub-Inspector of Police who was not authorised by the learned Magistrate to make such enquiry.

Section 202 Cr.PC provides that the Magistrate may direct an investigation by any person as he thinks fit for the purpose of ascertaining whether there Is sufficient ground for proceeding. Therefore, It Is entirely for the Magistrate to decide the fitness of a person to hold an enquiry u/s 202 Cr.PC. But the person who has been directed by the learned Magistrate to hold such enquiry can not delegate his function to some other person and If he does so, the person so delegated acquires no Jurisdiction to hold such enquiry. Therefore, In the instant case it must be held that the entrustment of the enquiry by the Officer-in-Charge of the P.S. was not within his competence, nor the Assistant sub-Inspector of police acquired any authority to hold the enquiry. In my considered option the learned Magistrate should not have looked into the result of such enquiry/ investigation and the order Issuing process on the basis of such inquiry report can not be sustained.

In the result, the revisional application succeeds and the same is allowed. The order dated 8.9.94 taking cognizance of the offence and directing enquiry u/s 202(1) Cr.PC and the order dated 30.3.96 directing Issue of summons against the petitioners and all subsequent orders passed by the learned Magistrate are hereby set aside.

Application allowed