Dipankar Dutta, J.

Challenge:

This writ petition is directed against an order dated December 6, 2013 passed by the Chief Judicial Magistrate, Barasat (hereafter the CJM) whereby he discharged the respondents 6 and 7 from G.R. 2116 of 2013, arising out of Baguiati Police Station FIR No. 258/13 dated June 1, 2013 under Sections 447/323/354/506, Indian Penal Code (hereafter the IPC), upon considering a supplementary charge-sheet filed by the respondent 5, the investigating officer.

Issues:

2. The two preliminary related issues that arise for a decision here are, (i) whether a writ petition that is directed against an order passed by a judicial magistrate in exercise of judicial functions, would be maintainable and (ii) whether in view of the remedies available to the petitioner under the provisions of the Code of Criminal Procedure (hereafter the Cr.P.C.), the writ petition should at all be entertained.

Facts

3. A written complaint dated May 31, 2013 was lodged by the petitioner before the Officer-in-Charge, Baguiati Police Station giving rise to the aforesaid FIR. Bare perusal of the complaint would reveal an allegation that the respondents 6 and 7, who are attached to the State Police Force, by exerting influence as police officers and threatening to implicate the petitioner in false cases had forced her to sign a development agreement for benefiting the respondent 8 and in course thereof assaulted and molested her. On surrender before the CJM, the respondents 6 to 8 were taken in custody and subsequently released on bail. The FIR was investigated by the respondent 5, and on completion of investigation police report under Section 173(2) of the Cr.P.C. was filed before the CJM against the respondents 6 to 8 vide charge-sheet bearing no. 334/13 for commission of offences under Sections 447/325/354/506/34, IPC. By an order dated September 9, 2013, the CJM took cognizance of the offence pertaining to GR 2116/2013. However, all on a sudden, November 30, 2013 to be precise, the respondent 5 filed a second charge-sheet under Section 173 Cr.P.C. (bearing no. 524/13) before the CJM seeking to implicate only the respondent 8 and purporting to discharge respondents 6 and 7 of the alleged offence. The second charge-sheet records, inter alia, as follows:

"As per order of my superior and from the statement of available witnesses and other relevant facts collected during the subsequent phase of investigation that a prima facie charge as revealed against R. Vinod Kumar and Papindar Singh Randhawa no way stands as such no prima facie charge has yet been established so that both the accd. persons can be sent up for trial. Therefore, under the present circumstances just to avoiding miscarriage of justice may happened. I do not have any other option but to sent only Debobrata Baidya as shown accused of this case for trial and consequently, I do not sent the accd. R. Vinod Kumar and Papinder Singh Randhawa up for trial as no prima facie charge established against them. They may kindly be discharged from the case."

The order dated December 6, 2013 passed by the CJM, which is impugned in this writ petition, is reproduced below:

"Accd: (1) R. Vinod Kumar is on C.B.

Accd: (1) Papinder Singh (2) Debabrata Baidya are on ..Bail.

to 13.02.2014 for appearance and copy.

Later - Received Supplementary CS - No: 524/13 dated 30.11.2013 u/s - 447/323/354/506 I.P.C.

Considering all the materials as sent by I/O u/s - 173 (5) Cr.P.C.

Let it be kept with the record.

Seen the supplimentary CS. Hd. Ld. A.P.P. who has submitted that 02 (two) accd: persons namely (1) Binod Kr. Nayer @ R. Vinod Kumar and (2) Papinder Singh Randhawa may be discharged from this case. Considered.

Let the above named two accused persons be discharged.

***."

Arguments for the Petitioner

4. On the question of maintainability of the writ petition, Mr. Kishore Datta, learned advocate (now senior advocate) argued that (a) this is a case of improper exercise of power of investigation, since (b) Section 173