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High Court of Judicature at Calcutta
RAGHUNATH RAY
Rajab Ali @ Sk. Rajab Ali
Versus
The State of West Bengal & Another
C.R.R. No. 4501 of 2008
Decided On : 12-02-2010
Code of Criminal Procedure - Section 173(8) - The court examines the provisions of section 173(8) of the Code of Criminal Procedure and distinguishes between 'further investigation' and 'reinvestigation'. It concludes that the order of reinvestigation was actually a case of further investigation. The court clarifies that the Magistrate has the power to conduct further investigation after the submission of a final report by the police. The court emphasizes that the Magistrate is not bound to accept the final report submitted by the police and can independently assess the evidence and materials collected during the investigation.
Fact of the Case:
The revisionist challenges an order passed by the Magistrate taking cognizance of offences against accused persons for the second time on submission of charge-sheet u/s 498A / 382/34/120B IPC against them pursuant to 'reinvestigation'. The FIR alleges that the wife was subjected to torture by her husband and in-laws for dowry, leading to her death. The de-facto complainant raised objection to the prayer for discharge of accused Rajab Ali and prayed for further investigation. The Magistrate directed 'reinvestigation' and subsequently, a charge-sheet was submitted against all accused persons. The revisionist argues that the Magistrate has no authority to conduct reinvestigation and that the involvement of the Public Prosecutor in the investigation is illegal. The state and the de-facto complainant support the order of reinvestigation. The main issue is whether the Magistrate was justified in ordering reinvestigation and taking cognizance for the second time on the charge-sheet submitted afresh.
Finding of the Court:
The court examines the provisions of section 173(8) of the Code of Criminal Procedure and distinguishes between 'further investigation' and 'reinvestigation'. It concludes that the order of reinvestigation was actually a case of further investigation. The court also holds that the involvement of the Public Prosecutor in the investigation is illegal. It further clarifies that the Magistrate is not bound to accept the final report submitted by the police and can independently apply his mind to the evidence and materials collected during the investigation. The court finds that the Magistrate failed to exercise his discretion properly and orders the Magistrate to carefully scrutinize the evidence and materials collected by both investigating officers and form an independent opinion on the involvement of the revisionist. The court sets aside the order of reinvestigation and directs the Magistrate to proceed in accordance with law.
Ratio Decidendi: The court clarifies that the Magistrate has the power to conduct further investigation after the submission of a final report by the police. The court also establishes that the involvement of the Public Prosecutor in the investigation is illegal. The court emphasizes that the Magistrate is not bound to accept the final report submitted by the police and can independently assess the evidence and materials collected during the investigation. The court holds that the Magistrate failed to exercise his discretion properly and orders the Magistrate to form an independent opinion on the involvement of the revisionist based on the evidence and materials collected by both investigating officers.
Result: The court sets aside the order of reinvestigation and directs the Magistrate to carefully scrutinize the evidence and materials collected by both investigating officers and form an independent opinion on the involvement of the revisionist. If the Magistrate's opinion is affirmative, necessary process should be issued against the revisionist within two months.
RAGHUNATH RAY, J
1. By filing this application under section 401 read with section 482 of the Code of Criminal Procedure the revisionist has sought to challenge an order dated 23.09.2008 passed by the learned Additional Chief Judicial Magistrate, Ghatal, Midnapore (W) in G.R. Case No. 3 of 2007 whereby the ld Magistrate took cognizance of offences as alleged against accused persons for the second time on submission of charge-sheet u/s 498A / 382/34/120B IPC against them pursuant to ‘reinvestigation’.
2. Shorn of unnecessary details the background facts leading to filing of this revision may be summarized as under:
FIR lodged by Enamul Haque Khan, the father of Mohabudan @ Moudam Bibi discloses that her marriage was solemnized with Sk. Jane Alam in accordance with the Muslim religious rites eight years back followed by payment of sufficient dowries including cash and gold ornaments. The wife was, however, subsequently subjected to brutal torture by her husband and in-laws both physical and mental for bringing further dowries from her parents. On her parents’ failure to meet further dowry demands accused persons frequently tortured her. However, on payment of further dowry both in cash and kind there was an amicable settlement at the intervention of relations. Two sons were also born out of the said wedlock.
3. On 08.01.07 at about 11 AM all the nine accused named in the FIR set her ablaze while she was asleep. In such a condition when she cried for help, para people rescued her and she was removed to a hospital at chandrakona. Because of her precarious condition, she was shifted to Medinipur medical college where she succumbed to her burn injuries at about 02.30 AM mid-night. She, however, told her parents and other relations that her parents-in-laws and their three sons including her husband hatched conspiracy and set fire on her.
4. On the basis of such allegations, Chandrakona PS Case No. 03/07 dated 09.01.07 under section 498A/302/34 IPC was started against all the accused. On completion of investigation, the investigating agency submitted the charge-sheet No. 108 of 2007 under section 498A/302/34 IPC on 08.10.07 against nine accused persons with a prayer for discharge of accused Rajab Ali, the revisionist. Subsequently, the de facto complainant raised objection to such prayer of discharge on 29.01.08 followed by a prayer for further investigation. Having heard the ld. Counsel for the de-facto complainant and also ld. A.P.P., and considered the relevant materials as have been made available in the CD, it was opined by the ld. A.C.J.M., Ghatal that there are sufficient materials against accused Rajab Ali, the victim’s uncle – in - law for commission of alleged offences under section 498A/ 302 / 34 IPC. Accordingly, ld. Magistrate directed ‘reinvestigation’ under section 173(8) Cr. P.C. On completion of ‘reinvestigation’ the I.O. submitted charge–sheet No. 79/08 under section 498A/302/34/120B IPC against all the ten accused persons including Rajab Ali, the revisionist showing him as on absconder. On 30.09.08 cognizance was taken and W/A was issued by the ld. Magistrate against absconding accused Rajab Ali, the revisionist.
5. Being aggrieved by and dissatisfied with the afore- mentioned order dated 30.09.08, this revision was preferred by accused revisionist Rajab Ali mainly on the ground that I.O. has no statutory authority to conduct re-investigation and subsequent submission of a final report in the form of charge-sheet disregarding the earlier final report in respect of the revisionist is also not permissible under law.
6. Mr. Acharya appearing on behalf of the revisionist submits that the ld. Magistrate has committed a serious illegality by directing reinvestigation and further taking cognizance for the second time in respect of chargesheet submitted afresh against accused persons including the revisionist. According to him, the I.O. has also misdirected ‘reinvestigation’ by obtaining opinion of the Public
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