The Investigating Officer is duty-bound to communicate the action taken by him to the informant under section 173(2)(ii) of the CrPC, and the Magistrate must ascertain that such communication was made before taking cognizance of the case.

( 1 ) BY this application under section 401 read with section 482 of Cr. PC the present petitioners have prayed for setting aside the order dated 19. 3. 2002 passed by the learned Judicial Magistrate, 6th Court, Sealdah, 24-Parganas (South) in G. R. Case No. 219 of 1995 and T. R. No. 3 of 1999. By the said order, the learned Magistrate, after full trial found both the accused persons, figured as opposite parties Nos. 1 and 2 in this case, not guilty to the charge and acquitted them under section 248 (1) Crpc.

( 2 ) ALL the parties appeared and contested this application.

( 3 ) IT is to be noted that on the basis of a complaint filed by the present petitioners on the allegations that in the night between 5th and 6th August, 1994, the accused persons entered into a criminal conspiracy and criminally trespassed into the premises No. 22/1/1a, Raja Manindra Road and broke open the doors and windows of the said premises and took possession of the same and also committed theft in respect of some articles kept therein. On the basis of the said complaint, the police started investigation after treating the complaint as FIR and on completion of investigation submitted a charge sheet. The learned Magistrate, thereafter framed charge under section 456, 114 IPC. Both the accused persons pleaded not guilty to the charge and accordingly the prosecution produced altogether four witnesses including the Investigating Officer. No defence witness was adduced and after hearing both sides, the learned Magistrate came to the conclusion that the case was not proved due to the laches on the part of the prosecution and thereafter found both the accused persons not guilty to the charge and acquitted them in the manner as indicated hereinabove.

( 4 ) IN course of hearing the learned counsel appearing for the petitioners took a plea that the case was not properly conducted by the prosecutor and no opportunity was given to the defacto-complainant to produce the documents those were produced before the Investigating Officer. It is also contended that the police also did not investigate the case properly and submitted the charge-sheet without including the allegation of theft in respect of the articles kept inside the premises No. 22/1/1a Raja Manindra Road.

( 5 ) HOWEVER, the learned counsel appearing for the State and the opposite parties Nos. 1 and 2 contended that the prosecution having failed to prove the case against the accused persons, the learned Magistrate had no other alternative than to acquit both the accused persons after finding them not guilty to the charge.

( 6 ) IN course of hearing of this case, a vital point was indicated by the learned counsel for the petitioners pointing out that the defacto-complainants had no role to play either in the investigation or in the trial of the case inasmuch as the investigation was done by the police and the trial was conducted by the Prosecutor appointed by the State. It is contended that the investigation was done without taking into consideration the materials produced before the Investigating Agency by the defacto-complainant, and subsequently, the Public Prosecutor who prosecuted the case on behalf of the State did not take appropriate care to ascertain as to whether the charge-sheet was properly filed or the charge was properly framed, nor he took initiative for proper trial.

( 7 ) IT appears from the written complaint that there is a specific allegation of trespass by night and also theft in respect of the articles. But the police investigated the case and filed the charge-sheet without indicating whether any theft was committed or not. It appears that the learned Magistrate took cognizance of the case in a casual and routine manner without any application of mind and without examining the materials collected in course of investigation. It was not ascertained by him whether the investigation was conducted in consonance with the complaint and whether the charge-sheet was properly