Rashiklal Bhansali vs State of West Bengal

P.C. Borooah, J.—In this application in revision the Petitioner Rashiklal Bhansali, against whom Sri S.L. Roy, Magistrate, First Class, Alipore, has framed charges u/s 411 of 414 of the Indian Penal Code, has challenged the legality of the proceedings, namely G.R. Case no. 1136 of 1970, pending before the said learned Magistrate and has prayed that the said proceedings be quashed.

The Petitioner is one of the partners of a firm carrying on business under the name and style of Messrs Mahavir and Company having its office at 54 Ezra Street, Calcutta) and the godown at 10-E Munshiganj Road, Calcutta. The said firm deals in tea.

On June 14, 1967, Messrs Amalgamated Roadways of 30/31 Kolakar Street, Calcutta:, lodged a written complaint with the Additional Deputy Commissioner of Police, Detective Department, Calcutta, alleging, inter alia, that on June 6, 1967, the said firm had entrusted a consignment of tea and other goods to the registered owner of the lorry bearing No. W.C.H. 5270 at Siliguri for delivery to their Calcutta office. The said lorry left Siliguri on June 6, 1967 and was due to reach Calcutta three or four days later., When the lorry did not reach Calcutta on the expected date enquiries were made and it was found that the lorry had crossed the Khejuria Ghat Ferry crossing with the consignment of tea and other goods. It was further alleged that the blue book that was shown at the time when the lorry was hired was not genuine.

The aforesaid complaint was forwarded to the Burrabazar P.S. on June 15, 1967 and on the basis of the said complaint a formal F.I.R, was drawn up. An officer of the Detective Department, namely one Sub-Inspector Biswanath Roy, took up investigation and ultimately submitted a charge-sheet in the Court of the learned Additional Chief Presidency Magistrate on March 4, 1968. The said charge-sheet also implicated the present Petitioner. According to the charge-sheet, a part of the consignment that had been sent from Siliguri in the aforesaid lorry included tea-chests belonging to the Subhasini Tea Estate and a quantity of the said tea was found in the godown of Messrs Mahavir and Company at 10-E Munshieanj Road, Calcutta. It was further alleged that six chests containing tea and 14 top covers of identical consignments of the Subhasini Tea Estate and other chests containing similar brands of tea were recovered from the said godown. On the basis of the said charge-sheet the learned Additional Chief Presidency Magistrate took cognizance and subsequently transferred the case for disposal to the Court of another Presidency Magistrate, who duly framed charges under Sections 411 and 414 of the Indian Penal Code against the Petitioner and others.

In the course of the trial it was pointed out to the learned Magistrate that the alleged entrustment of the tea and the alleged recovery were made outside the territorial jurisdiction of the, Court taking cognizance and as such, the learned Magistrate had no jurisdiction to try the case. This contention was overruled by the learned Magistrate and the Petitioner thereafter moved this Hon''ble Court in revision and obtained a Rule being Cr. Rev. Case No. 996 of 1968. The said Rule was made absolute by an order dated June 6, 1969 and the proceedings pending against the Petitioner before the learned Presidency Magistrate, Calcutta, were quashed.

The investigating officer, namely Sub-Inspector Biswanath Roy, thereafter filed a complaint in the Watgunge P.S on June 3, 1970 and thereafter submitted a charge-sheet against the Petitioner and others in the Court of the Police Magistrate, Alipore, on June 5, 1970 and on the basis of the same the learned Magistrate took cognizance and G.R. Case No. 1136 of 1970 was started. The learned Police Magistrate transferred the case to Sri S.L. Roy, Magistrate, First Class, for disposal who on August 27, 1973, framed charges under t Sections 411 and 414 of the Indian Penal Code against the Petitioner and 1 others.

Mr. Nalin Chandra Banerjee, learned Advocate appearing on behalf of the accused Petitioner, has contended that the charge-sheet submitted before the Police Magistrate at Alipore was based on materials collected during investigation pursuant to the First Information Report lodged at the Burrabazar P.S. on June 15, 1967. That investigation by the Burrabazar P.S. was wholly without jurisdiction and this Court having quashed the proceedings pending before the learned Presidency Magistrate, Calcutta, the Police Magistrate, Alipore, could not have taken cognizance and framed charges against the accused Petitioner on the basis of materials collected in the course of investigation by a Police Station having no jurisdiction. It was also contended on behalf of the accused Petitioner that the investigation was in violation of the mandatory provisions of Section 156(1) of the Code of Criminal Procedure, 1898. In support of his contentions Mr. Banerjee has relied on a Supreme Court decision, namely H.N. Rishbud and Inder Singh Vs. The State of Delhi, .

Mr. Chaitanya Chandra Mukherjee, learned Advocate appearing on behalf of the State, contended on the other hand that cognizance taken by the Police Magistrate, Alipore, even on the basis of a challan submitted pursuant to an illegal investigation did not make the cognizance taken by the learned Magistrate illegal nor would the trial pending against the Petitioner and others be vitiated on that count. According to Mr. Mukherjee, if the Petitioner was prejudiced by any irregular investigation, then only this Court should interfere. It was also contended by Mr. Mukherjee that an irregular investigation, if any, was curable u/s 537 of the Code of Criminal Procedure, 1898. Mr. Mukherjee also relied on the same decision cited by the learned Advocates on behalf of the Petitioner.

In the case of H.N. Rishbud v. State of Delhi (Supra) the Supreme Court was dealing with a case in which the Punjab High Court had, in exercise of its revisional jurisdiction, set aside the order of the Special Judge, Delhi, quashing certain criminal proceedings pending before him against the Appellants for alleged offences under the Indian Penal Code and the Prevention of Corruption Act, 1947, as in the view of the learned Judge, the investigations on the basis of which the Appellants were being prosecuted were in contravention of the provisions of Sub-section (4) of Section 5 of the Prevention of Corruption Act, 1947 and hence illegal.

The Supreme Court in the said case observed as follows:

A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a Police report which results from an investigation is provided in Section 190, Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal, Police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Code of Criminal Procedure is one out of a group of sections under the heading ''Conditions requisite for initiation of proceedings''. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. Sections 93 and 195 to 199.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid Police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1) (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in at proceeding antecedent to the trial. To such a situation Section 537, Code of Criminal Procedure which is in the following terms is attracted:

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal'' or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other'' proceedings under this Code, unless such error, omission or irregularity has in fact occasioned a failure of justice.

If, therefore, cognizance is in fact taken on a Police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice.

The Supreme Court after making the aforesaid observation ultimately held as follows:

In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or, partly and by such officer as it considers appropriate with reference to the requirements of. Section 5-A of the Act.

Coming to the case before us, Burrabazar P.S. admittedly had no jurisdiction to investigate the case, the goods having been consigned at Siliguri and the allegedly stolen property having been recovered from the godown of Mahavir arid Company at Munshiganj Road, Calcutta, which is within the jurisdiction of Watgunge P.S. Section 156(1) of the Code of Criminal Procedure, 1898, also makes this clear.

The next question that arises for consideration is whether after this High Court had quashed the proceedings pending before the Presidency Magistrate, Calcutta, the Police Magistrate at Ali-pore could have taken cognizance on the basis of the challan filed before the learned Magistrate in which the materials collected in course of investigation by the Burrabazar P.S. Were incorporated.

When a First Information Report relating to the commission of a cognizable offence is lodged in a Police Station, the only person in that Police Station, who is competent to investigate, is the Officer-in-charge or a person duly authorised by him. It appears from the First Information Report lodged at the Watgunge P.S. that the information was by Sub-Inspector Biswanath Roy of Muchipara P.S., formerly attached to the Criminal Intelligence Section of the Detective Department. It further appears from the crime register of the said Police Station that the said officer is on enquiry into the case which was started subsequent to the lodging of the said First Information Report.

Mr. Chaitanya Chandra Mukherjee, learned Advocate on behalf of the State, could not bring to our notice any specific order of the Officer-in-charge of the Watgunge P.S. authorising Sub-Inspector Biswanath Roy to investigate the case after the First Information Report lodged at the Watgunge P.S. It further appears that after lodging of the First Information Report, Sub-Inspector Biswanath Roy did not examine the witnesses afresh but merely incorporated into the case diary the statements which he had previously recorded when investigating the case pursuant to the complaint lodged at the Burrabazar P.S.

The word ''investigation'' as used in the Code of Criminal Procedure includes all proceedings by a Police officer for collection of evidence of an offence and in particular, it includes every action taken by such Police officer for examination of witnesses, ascertainment of the facts of the case, discovery and arrest of the offender, search of places for seizure of incriminating material and finally the filing of the charge-sheet in the Court.

Investigation should not ordinarily be undertaken by an officer who is the complainant. This is not in consonance with fair play and is against the Principles of natural justice. Where the prosecutor is the person entrusted with the collection of evidence, he will certainly proceed with a biased mind and the may prejudice the accused persons against whom charge-sheet is ultimately submitted.

In the instant case, Sub-Inspector Biswanath Roy filed the cormorant in the Watgunge P.S. and he himself undertook the investigation without any specific order of the Officer-in-charge of the said Police Station. Such investigation was, therefore, illegal as being in violation of the mandatory provisions of Section 156(1) of the Code of Criminal Procedure.

The cognizance taken by the Police Magistrate, Alipore, on a charge-sheet submitted on the basis of an illegal investigation does not of course make the cognizance null and void, nor can the Chargesheet submitted against the accused Petitioner and others pursuant thereto be deemed to be without jurisdiction. But the illegal and improper manner in which the investigation was conducted. B having been brought to the notice of this Court at an early stage, justice demands that we should interfere following, the decision of the Supreme Court cited above and strike down the proceedings pending against the Petitioner before Sri S.L. Roy, Magistrate First Class, Alipore.

The Rule is, accordingly, made absolute. The proceedings pending against the Petitioner before the learned Magistrate in G.R. Case No. 1136 of 1970 is quashed. We, however, make it clear that this order will not in any way prevent the Oflicer-in-charge of the Watgiinge P.S. or some other officer other than S.I. Biswanath Roy, duly authorised by him, from investigating into the complaint filed at the said Police Station in accordance with law and in the light of the observations made in this judgment.

H.N. Sen J.

I agree.