Pulaknath Sanyal vs The State of West Bengal

R.K. Bag, J—The petitioner has preferred this revisional application under Section 401 and Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 20th February, 2014 passed by learned Judicial Magistrate, 3rd Court, Suri, in G.R. No. 1041 of 2013 arising out of Suri Police Station Case No. 408 of 2013 dated 19th December, 2013 and also the subsequent orders passed by learned Magistrate in the said proceeding.

The petitioner being the defacto complainant started criminal proceeding being Suri Police Station Case No. 408 of 2013 dated 19th December, 2013 under Sections 448/323/380/427/506 of the Indian Penal Code. The police submitted report under Section 173 of the Code of Criminal Procedure disclosing offence under Section 448/323/427/506/34 of the Indian Penal Code. It appears from record that learned Magistrate posted the case for recording of evidence on February 25, 2015 and thereafter on April 22, 2015 and June 11, 2015 and thereafter on July 22, 2015. It also appears from record that learned Magistrate issued bailable warrant of arrest against the witnesses including the defacto complainant who happens to be the petitioner of the instant criminal revision.

Mr. Debabrata Roy, learned counsel appearing on behalf of the petitioner contends that the investigating officer did not inform the defacto complainant of the result of investigation in compliance with the provisions of Section 173(2)(ii) of the Code of Criminal Procedure, 1973. He submits that the provision of Section 173(2)(ii) of the Code of Criminal Procedure is mandatory in nature and non-compliance of the said provision by the investigating officer will vitiate the proceeding from the stage of taking cognizance by the learned Magistrate. Mr. Roy has relied on the decision of the Supreme Court in Bhagwant Singh Vs. Commissioner of Police and Another, AIR 1985 SC 1285 : (1985) CriLJ 1521 : (1985) 1 Crimes 994 : (1985) 1 SCALE 1194 : (1985) 2 SCC 537 : (1985) 3 SCR 942 : (1985) 17 UJ 820 and the decision of our High Court in East India Pharmaceutical Works Ltd. Vs. State of West Bengal and Another in support of his above contention.

Mr. Ayan Basu, learned counsel for the opposite party/State submits that the ratio of the decision of the Supreme Court in "Bhagwant Singh v. Commissioner of Police" (supra) and the decision of our High Court in "East India Pharmaceutical Works Limited v. State of West Bengal" (supra) is that the informant or the defacto complainant or the victim of crime is entitled to get notice and opportunity of hearing before acceptance of final report submitted by the investigating officer in the court of learned Magistrate. Mr. Basu also submits that the provision of Section 173(2)(ii) of the Code of Criminal Procedure is directory in nature, though the term ''shall'' is used in the said sub-section.

For proper appreciation of the submission made by learned counsel representing both parties, it is necessary to quote Section 173(2)(ii) of the Code of Criminal Procedure, 1973 which is as follows:--

"The officer shall also communicate in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given."

On perusal of the above provision of law, it appears that it is the duty of the Officer-in-Charge of the police station who is forwarding the police report to the learned Magistrate under Section 173 of the Code of Criminal Procedure to communicate to the informant about the result of investigation. This provision has been interpreted by the Supreme Court in "Bhagwant Singh v. Commissioner of Police" (supra) in the following manner in paragraph 4 of the judgment, which is as follows:--

"We are, accordingly, of the view that in a case where the Magistrate to whom a report is forwarded under Sub-Section (1) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report".

In view of the above interpretation of Section 173(2)(ii) of the Code of Criminal Procedure by the Supreme Court, it is crystal clear that learned Magistrate is duty bound to give notice to the informant and to provide him an opportunity of hearing at the time of consideration of the police report, when learned Magistrate decides not to take cognizance of the offence and to drop the proceeding on the ground that there is not sufficient ground for proceeding against the persons against whom First Information Report was lodged. It is also laid down by our High Court in "East India Pharmaceutical Works Limited v. State of West Bengal" (supra) that it is mandatory for the learned Magistrate to give notice to the informant and provide him a reasonable opportunity of hearing at the time of consideration of the final report where the investigating officer prays for discharge of the accused from the case for insufficient evidence.

In view of the above proposition of law laid down by the Apex Court and our High Court, I am constrained to hold that it is mandatory for learned Magistrate to give notice to the informant and to provide him reasonable opportunity of hearing at the time of consideration of the police report in final form, when learned Magistrate decides to discharge the accused person without taking cognizance of the offence on the basis of the final report submitted by the investigating officer. In the instant case, learned Magistrate took cognizance of the offence on the basis of the police report under Section 448/323/427/506/34 of the Indian Penal Code, though FIR was registered under Section 448/323/380/427/506 of the Indian Penal Code. Since learned Magistrate has not discharged the accused persons or dropped the criminal proceeding on the basis of the police report submitted by the investigating officer, the ratio of the decision of the Supreme Court in "Bhagwant Singh v. Commissioner of Police" (supra) and the decision of our High Court in "East India Pharmaceutical Works Limited v. State of West Bengal" (supra) will not be applicable in the facts of the present case.

The main grievance of the petitioner is that learned Magistrate proceeded with the hearing of the case in spite of the fact that the investigating officer did not submit charge sheet under Section 380 of the Indian Penal Code for which FIR was registered. The other grievance of the petitioner is that learned Magistrate issued bailable warrant of arrest against him and other prosecution witnesses to compel their attendance before the trial court to proceed with the hearing of the case. Since learned Magistrate has taken cognizance of the offence on the basis of the police report about one year and six months back and since learned Magistrate recorded the plea of the accused person about six months back and since no prosecution witnesses has yet been examined by the trial court, I am of the view that learned Magistrate must keep his mind open at the time of recording evidence of the defacto complainant and other major prosecution witnesses for formation of opinion whether any offence under Section 380 of the Indian Penal Code is made out from the evidence of the defacto complainant and other major prosecution witnesses. The moment learned Magistrate will form opinion on the basis of the evidence of the defacto complainant and other major prosecution witnesses that an offence under Section 380 of the Indian Penal Code is made out against the accused persons, learned Magistrate is duty bound to recast the charge against the accused persons and proceed with the hearing from the stage of framing of the charge.

It is relevant to point out that under the Code of Criminal Procedure, learned Magistrate has the discretion to form opinion about the offence in question at different stages of the proceeding. It is true that learned Magistrate did not form any opinion for framing of the charge under Section 380 of the Indian Penal Code at the time of recording of plea of the accused persons. The framing of the charge under Section 448/323/380/506/34 of the Indian Penal Code by learned Magistrate will not debar him from recasting the said charge by adding Section 380 of the Indian Penal Code at the subsequent stage of the proceeding, if learned Magistrate can form opinion in this regard on the basis of the evidence to be adduced by the defacto complainant and other prosecution witnesses at the stage of recording of evidence.

In view of my above findings, I cannot persuade myself to set aside the order dated February 20, 2014 passed by learned Judicial Magistrate, 3rd Court, Suri, in G.R. No. 1041 of 2013. However, the orders of issuance of warrant of arrest against the petitioner and other prosecution witnesses are set aside, on condition that the petitioner and other prosecution witnesses will appear before the trial court on the next date of hearing fixed by the Court. If the petitioner and other prosecution witnesses turn up before the trial court for evidence, there is no need to keep the warrant of arrest against the petitioner and other prosecution witnesses alive as directed by learned Magistrate. Accordingly, I am inclined to set aside the orders of issuance of warrant of arrest against the petitioner and other prosecution witnesses.

The order dated 22nd April, 2015 and 11th June, 2015 by which learned Magistrate issued warrant of arrest against the petitioner and other prosecution witnesses in connection with G.R. No. 1041 of 2013 are set aside on condition that the petitioner and the said prosecution witnesses will turn up before the trial court on the next date fixed for evidence. Learned Magistrate is directed to consider the evidence of the petitioner and the major prosecution witnesses for formation of opinion whether an offence under Section 380 of the Indian Penal Code is made out and to recast the charge and to proceed with the hearing of the case.

With the above direction, the criminal revision is disposed of.

Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.