Prafulla Pradhan vs State of West Bengal

H.N. Sen, J.—This Rule is against the order dated 25.5.74 passed by the learned Subdivisional Judicial Magistrate, Tamluk dismissing the complain-anil --petitioner''s petition of complainant. The petitioner lodged a complaint against as many as 26 persons alleging theft of paddy from the land which he and others cultivated as Bargadars under Rani Suhasini Roy. The complainant was initially examined by the learned Magistrate entertaining the said complaint and he directed an inquiry by the officer-in-chargc of the local police station and for his report. A report was received in due course whereupon the petitioner filed a petition challenging the said report and he himself prayed for a judicial inquiry by the learned Magistrate himself. That prayer was allowed by the learned Subdivisional Judicial Magistrate and he himself examined the witness produced for the purpose. It appears further that the persons complained against were allowed to watch the proceeding and through their lawyer they were permitted to make submission on points of law only and upon 5uch submission the learned Subdivisicnal Judicial Magistrate in the ultimate result dismissed the complaint u/s 203 of the Cr. P.C. It is against this older dismissing the complaint that the present Rule is directed. Mr. Ghorai, learned Advocate appearing for the Complainant petitioner, has submitted before us that the learned Subdivisional Judicial Magistrate did not in fact express his own views on the result of the inquiry and without proper application of mind took recourse to non-conformance of the provisions laid down in section 200 Cr. P.C. which was at the material time available, on the decision reported in 78 C.W.N. 307 and practically dismissed the petition of complaint on the ground of non-conformance of the provisions of the mandatory requirements of section 200 Cr. P.C.

Mr. Ghosal, learned Advocate appearing for the State, very fairly conceded that the decision reported in 78 C.W.N. 307 upon which the learned Subdivisional Judicial Magistrate acted has since been overruled by a decision of the Special Bench of this Court. He further conceded that the impugned order cannot be supported and the matter has to be sent back to learned Magistrate for a proper consideration in accordance with law. Mr. Ghosal in this connection submitted that it was incumbent on the learned Magistrate to express himself about the result of the inquiry as made by the police and as it was further re-informed by a further inquiry made by the learned Magistrate himself by examining certain witness produced before him by the complainant.

Section 202 Cr. P.C. empowers a Magistrate to postpone issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or by any other person for the purpose of deciding whether or not there was sufficient ground for proceeding in the matter. In the instant case before us after the initial examination of the complainant-petitioner there was a direction to the O.C. of the local police station to make an inquiry and report. Thereafter, as it now transpires from the record, the learned Magistrate made a further inquiry himself. In the order impugned before us the learned Magistrate has not given any expression of his views on the result of such inquiry. He was in two minds and he could not resolve the conflict between the authorities placed before him by the lawyer who represented the persons complained against. In view of the language of section 202 Cr. P.C. we are of the view that even after directing the officer-in-charge of the local police station to make an inquiry and report the hands of the learned Magistrate would not be tied if he proposed to hold a further inquiry into the matter himself. It is only if he directed a separate or fresh inquiry by another Magistrate or by any other authority then that course would be wholly illegal being not in accordance with law. But if he holds a further inquiry by himself for determining whether to issue process or not it will be within his competence and his powers under the Code of Criminal Procedure. But in any event, while deciding whether to issue process or refuse to issue process he will have to express his own views on the result of such inquiry on the materials before him. In the impugned order, as has already been stated, there has been no expression of his own views about the result of such inquiry.

Since the other point regarding non-conformance of section 200 Cr. PC. is now no longer available, the matter must be sent back to the learned Sub-divisional Judicial Magistrate for consideration of the matter. We accordingly make this Rule absolute, set aside the impugned order and send back the matter to the learned Sub-divisional Judicial Magistrate for f;esh consideration in accordance with law and in the light of the observations made in this judgment.

Let the records be sent down as expeditiously as possible.

P.C. Borooah, J.

I agree.