Sukumar Majhi vs Pran Krishna Majhi

N.C. Talukdar, J.—This rule is at the instance of the informant Petitioner, Sukumar Majhi, directed against an order dated January 17, 1973, passed by Sri S.N. Mallick, Subdivisional Judicial Magistrate, Tamluk, in C.R. Case No. 943 of 1972.

A short point of law arises for consideration in this rule as to whether after a charge-sheet in a case is submitted in Court following an investigation under chapter XIV, Code of Criminal Procedure, there can be a re-investigation in the matter upon the complaint of the de facto complainant to the effect that the investigation made has been incomplete and perfunctory affecting thereby the merits of the charge-sheet submitted.

The facts necessary for appreciating the point at issue are put in a short compass. On October 25, 1972, the informant, Sukumar Majhi, lodged a F.I.R. at the Tamluk P.S. against the accused opposite parties for offences under Sections 323/324 and 326/34 Indian Penal Code. The prosecution case briefly is that on October 25, 1972, at about 6-45 a.m. while the Petitioner''s brothers were cutting earth for carrying the same to construct a hut in their homestead the accused opposite parties came there in a body armed with deadly weapons, viz. chouki, lathi and katari and objected to the cutting and removal of earth from the plot concerned. Gunadhar Majhi, who was a doctor, and Sukumar Majhi, who is the informant, therefore came to the place which is adjacent to their house and protested against the highhanded conduct of the accused parties when they assaulted Gunadhar, his two daughters Kamala and Pramila, and also his son, the informant, causing several injuries. The prosecution case, further, is that Gunadhar had head injuries caused by lathi blows and his left ring finger was chopped off. Sukumar lost an ear and Kamala received an injury from chouki. Pramila Majhi received injuries from lathi blows on her right shoulder. Gunadhar became unconscious and had to be removed to the hospital where he remained as an indoor patient from October 25, 1972 to November 21, 1972. His dying declaration was sought to be recorded, but the same could not be done as he was unconscious. It is further alleged by the informant that, although the case was serious one, the O.C. of the Tamluk P.S., who is the I.O. in the case, did not arrest any of the accused persons who ultimately surrendered in the Court, and he did not also examine either Gunadhar or his two daughters although they received several injuries and are relevant eye-witnesses. On or about December 5, 1972, the Petitioner''s father made a representation to the Addl. Superintendent of Police (Crime), Midnapore, drawing his attention to the perfunctory nature of the investigation and praying for a further and proper investigation. As no reply was received, a further representation dated December 13, 1972, was made to the Hon''ble Minister-in-charge of Police (Home), Government of West Bengal, enclosing a copy of the representation earlier addressed to the Addl. S.P., Midnapore. The S.P. of Midnapore thereupon was directed by the Hon''ble Minister to take proper and legal action immediately by his order dated December 15, 1972. On receipt of the said order, the S.P. directed on December 20, 1972, the G.I., Tamluk, for a proper investigation. The S.P., Midnapore, further directed the S.D.P.O., Tamluk, to look into the matter on December 29, 1972. The I.O. submitted the charge-sheet before the learned Subdivisional Judicial Magistrate, Tamluk, against the accused opposite parties u/s 325 Indian Penal Code on January 8, 1973. The Petitioner, who was aggrieved by the said charge-sheet, moved an application before the learned Subdivisional Judicial Magistrate, Tamluk, setting out material facts and stating, inter alia, that Gunadhar Majhi, amongst others, was not even examined by the I.O. and prayed ultimately for a month''s adjournment to enable the State to take legal action for further investigation as referred to in the petition. The learned Subdivisional Judicial Magistrate ultimately by his order dated January 17, 1973, held that the petition was misconceived but nonetheless directed the case diary to be put up at the time of framing of the charges, fixing February 21, 1973, as the date for the said purpose. Being aggrieved thereby, the de facto complainant Petitioner Sukumar Majhi preferred the present revisional application and a rule was issued on February 6, 1973. Along with the rule an order for ad interim stay, as prayed for, was also granted.

Mr. Ananga Kumar Dhar, Advocate (with M/s. Jahar Lal Roy and Sasanka Kumar Ghosh, Advocates) appearing in support of the rule, contended that the charge-sheet was submitted in a hurry, based on a perfunctory investigation, without even examining material witnesses like Gunadhar Majhi, Kamala Majhi, Pramila Majhi and even Sukumar Majhi, prejudicing thereby the de facto complainant in a case involving serious offences, that the learned Subdivisional Judicial Magistrate materially erred in holding that the petition filed in this behalf by the de facto complainant Petitioner was misconceived, and that the order passed by Sri S.N. Mallick, Subdivisional Judicial Magistrate, Tamluk, is ex facie contradictory inasmuch as he had rejected in the earlier part of the order the application filed on behalf of the de facto complainant as misconceived but ultimately ordered that the case diary was to be put up at the time of framing charge without taking into consideration the position in law that at that stage he could not give effect to the prayer made on behalf of the de facto complainant-Petitioner for reinvestigation of the case by the I.O. and the submission of a proper charge-sheet. Mr. Nitya Ranjan Biswas, Advocate appearing on behalf of the State, opposed the rule on the ground that after submission of the charge-sheet another investigation could not be directed by the Court and, as such, although the learned Subdivisional Judicial Magistrate''s order was not ex facie a proper order, the conclusions ultimately reached by him in not directing a reinvestigation were sustainable on merits. Mr. Bikash Chandra Sen, Advocate (with Miss Manjuli Sen Gupta and Mr. Chinmoy Choudhury, Advocates) appearing on behalf of the accused opposite parties, also opposed the rule. Mr. Sen contended that the objection taken by Mr. Dhar was more technical than real inasmuch as on ultimate analysis the learned Subdivisional Judicial Magistrate was giving the de facto complainant the opportunity prayed for by directing the case diary to be put up at the time of the framing of the charge. Mr. Sen next contended that there was no provision of law to warrant such a reinvestigation after the charge-sheet was submitted. Several cases were cited by the learned Advocate appearing on behalf of the respective parties and an intriguing point of law arose as to whether after the submission of the charge-sheet in a case on the complaint of the de facto complainant or informant, there could be a reinvestigation by the Police. In view of the importance of the point raised and the nature of the arguments advanced, this Court requested Mr. Dilip Kumar Dutta, Advocate, to appear as amicus curia and he agreed. A copy of the petition and also the order-sheet were served on him, and the matter came up for final hearing to-day.

Mr. Dilip Kumar Dutta, the learned amicus curiae, submitted that the application filed on behalf of the de facto complainant-petitioner for a proper investigation was not without merit, but the procedure sought to be adopted, as made out therein, is unwarranted and untenable. Mr. Dutta submitted that, in this case, a charge-sheet was submitted by the I.O. after holding an investigation under chapter XIV of the Code of Criminal Procedure and, therefore, the Police could not reinvestigate the subject-matter of the case once again excepting on mere formal matters. Mr. Dutta also pinpointed some irregularities in the order passed by the learned Subdivisional Judicial Magistrate, who appeared not to have taken any cognizance specifically before issuing process. To lend assurance to his submissions the learned amicus curiae referred to several cases starting with the case of Tara Singh Vs. The State, wherein Vivian Bose J. delivering the judgment of the Court observed that

the mere fact that a second challan was put in on 5th October would not necessarily vitiate the first. All that Section 173(1)(a) requires is that, as soon as the Police investigation under Chapter 14 of the Code is complete, there should be forwarded to the Magistrate report in the prescribed form.

The Supreme Court further proceeded to observe that--

The witnesses named in the second challan of 5th October were not witnesses who were ''acquainted with the circumstances of the case''. They were merely formal witnesses on other matters. So also in the supplementary challan of the 19th.

Mr. Dutta relied on the aforesaid observations of the Supreme Court and contended that mere submission of a second charge-sheet would not by itself vitiate the proceedings if the said charge-sheet did not go beyond citing mere formal witnesses. In other words, as the learned amicus curiae submitted, there could not be a full-fledged re-investigation inasmuch as the cognizance was already taken u/s 190(1)(b) of the Code of Criminal Procedure on the charge-sheet as submitted by the I.O. Mr. Dutta next referred to a latter decision of the Calcutta High Court, viz. Ram Gopal Neotia Vs. State of West Bengal, wherein T.P. Mukherji J. relied on the aforesaid decision of the Supreme Court as also some other decisions and ultimately observed that a Magistrate takes cognizance on a Police report u/s 190(1)(b) after the investigation by the Police ends and a challan is submitted u/s 173 and that with the submission of the challan the cognizance taken by the Police expires and the Magistrate''s cognizance of the offence starts. Accordingly, any further investigation into the offence will trench on the cognizance that has already been taken by the Magistrate and is not legal. The same view appears to have been taken in an unreported decision of this Court in Cr.R. Case No. 680 of 1968--Ramsarup Gupta v. The State Unreported judgment dated October 3, 1969, Cr.R. No. 680 of 1968 decided on October 3, 1969, wherein the principles laid down in Ram Gopal Neotia''s case Supra were followed. In view of the aforesaid imprimatur of judicial decisions on the point at issue, the learned amicus curiae submitted that there could not be a reinvestigation after the submission of the charge-sheet and taking of cognizance excepting, as has been held in some cases with regard to merely formal matters only by a subsequent challan. There is a considerable force behind the submissions of the learned amicus curiae and in view of the facts and circumstances of the case and the provisions of the Code, I accept the same.

Mr. Dhar further submitted that in a case where the Court finds on relevant application made in that behalf by the de facto complainant or the informant that the investigation by the Police has been extremely perfunctory, omitting to record the evidence of material witnesses, including the eye-witnesses as also the injured, the Court is not so helpless as to be unable to give effect to the just prayers pressed on behalf of the aggrieved complainant for a reconsideration inasmuch as he is as much a party to the criminal proceedings as the accused is. The answer to the same is simple. The Legislature in its wisdom has provided for alternative remedies in this behalf and it avoids redundancy. On merits, as I have already observed, it prima facie appears, if the averments made on behalf of the de facto complainant-petitioner be correct, that the material witnesses referred to in the petition on which the present rule has been issued should have been examined by the I.O. culminating in a proper charge-sheet. The said stage, however, is over and going through the case diary at this stage indicates the learned Subdivisional Judicial Magistrate cannot improve matter and gives relief prayed for. Confusion will only be worse confounded thereby. There is, however, a remedy enjoined by law and approved of by the imprimatur of judicial decisions as the learned amicus curiae rightly submitted. A reference for the purpose may be made to the case of Bhimappa Basappa Bhu Sannavar Vs. Laxman Shivarayappa Samagouda and Others, wherein Hidayatullah C.J. delivered the judgment of the Court. In the facts of the said case a question arose whether the application filed on behalf of the complainant to supplement the charge-sheet already submitted could be considered in view of the factum of cognizance already taken. The Supreme Court while considering the point at issue in the context of the question of merger and the identity of the two different cases made material observations. I respectfully agree with the same and I hold that the de facto complainant-petitioner in such cases is not entirely helpless and without remedy. The proper procedure to be followed by him is to file a relevant application or a complaint incorporating the grounds on which he was preferring the same and cognizance within the bounds of Section 190(1)(a), Code of Criminal Procedure, could be taken upon the same. The case will proceed thereafter. This will be outside the bounds of the charge-sheet submitted by the Police on completion of investigation and would not entail a further investigation in the matter de hors the provisions of the Code of Criminal Procedure. As was aptly observed by Lord Roche in the case of Nazir Ahmed v. King-Emperor 63 I.A. 372 (381-82) that

where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

I respectfully agree with the aforesaid observations and I hold that to give effect to this submission of Mr. Ananga Kumar Dhar would lead on to a non-conformance to the procedure established by law and result in an embarkation on a voyage of discovery, beyond the bounds of Sections 251A and 173 of the Code of Criminal Procedure. This contention of Mr. Dhar, accordingly, fails. The Petitioner is not without an alternative remedy and, if his allegations be correct, he can follow the proper procedure for a proper redress and not press for a reinvestigation after the charge-sheet is submitted on completion of an investigation under Chapter XIV of the Code of Criminal Procedure.

Before I part with the case, I must also observe that the order passed by the learned Subdivisional Judicial Magistrate, Tamluk, is not a proper order in terms. After having apparently rejected the petition as misconceived, he was indirectly giving effect to the prayers by ordering the case diary to be put up for consideration at the time of framing the charges. Apart from that the learned Subdivisional Judicial Magistrate had also erred because at that stage of Section 251A(2), Code of Criminal Procedure, no statements of witnesses having been recorded and, as such, copies thereof having not been served on the accused u/s 173(4), Code of Criminal Procedure, the grievances raised by the de facto complainant-petitioner could not be redressed. On ultimate analysis, however, although the steps of reasoning of the order passed by the learned Subdivisional Judicial Magistrate are not proper and tenable, the ultimate directions given therein can be upheld.

Before I part with the case I must place on record my appreciation of the troubles taken by the learned amicus curiae, Mr. Dilip Kumar Dutta, who spared no pains to assist this Court to come to a proper decision.

In the result, I direct that the matter shall go back to the Court for being disposed of in accordance with law and expeditiously from the stage reached on January 17, 1973. The de facto complainant-petitioner, if he be so advised, can file a proper application to ventilate the grievance incorporated in his application for reinvestigation.

The rule is disposed of accordingly. The affidavit filed in the Court may be kept on record. The records shall go down as early as possible.