The limitations of the court's power to issue process against a person not sent up for trial after investigation but named in the F.I.R.

DEBI PROSAD DEY, J.

1. Being aggrieved by and dissatisfied with the order dated 29th June, 2015 passed by learned Additional District Judge, 3rd Court at Alipore in criminal motion no. 63 of 2014 the petitioner has filed this application under Section 482 of the Code of Criminal Procedure for setting aside the said order of learned Additional District Judge, 3rd Court, Alipore.

2. An application under Section 156(3) of the Code of Criminal Procedure was moved by the present petitioner before the learned Additional Chief Judicial Magistrate, Alipore and the said application was forwarded to the concerned Superintendent of Police for investigation and filing of report. It was specifically directed by learned Magistrate that such investigation has to be undertaken by a police officer above the rank of Deputy Superintendent of Police. The Superintendent of Police, South 24 Parganas directed the officer in charge of Purba Jadavpur police station to register a case and entrusted the investigation with the Additional Superintendent of Police, Alipore (opposite party no. 4). The case was registered under Section 409/348/346/506(part-II)/201/504/120B/34 of Indian Penal Code against six persons out of them three are police officers. After completion of investigation, the investigating officer, (opposite party no. 4 the then Additional Superintendent of Police) submitted a report in final form stating inter-alia that the witnesses did not support the case of the defacto complainant and the defacto complainant had set the criminal law in motion falsely in order to satisfy his ego and accordingly, the investigating officer also sought for permission for launching prosecution against the defacto complainant under Section 211 of the Indian Penal Code. The defacto complainant thereafter filed ‘Naraji’ application before the trial Court and learned Court after being satisfied about the case of the defacto complainant and after having the report of the Authorized officer under the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 issued process against only three persons but simultaneously, dismissed the case against the police officers under Section 203 of the Code of Criminal Procedure. The defacto complainant thereafter filed an application under Section 319 of the Code of Criminal Procedure for proceeding against the investigating officer for the offence under Section 218/109/120B of the Indian Penal code. Learned Magistrate held that the investigating officer prepared the case diary in such a manner so as to save the police officers and has suppressed the commission of offence under Section 13A of the (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 and thereafter recorded his satisfaction that the defacto complainant has been able to make out a primafacie case under Section 218 of the Indian Penal Code against opposite party no. 4. However, learned Magistrate thereafter personally wrote to the Home Secretary to the Government of West Bengal for sanction in terms of Section 197 of the Code of Criminal Procedure to prosecute Mr. Murlidhar under Section 218 of the Indian Penal Code.

3. The said order of learned Magistrate was challenged in revision by the petitioner and learned Additional District and Sessions Judge, Alipore affirmed the order of learned magistrate in respect of issuance of process against the private persons as well as the order of dismissal passed by learned Magistrate in respect of the police officers. Learned Additional Sessions Judge, 3rd Court, Alipore however had set aside the order by which the learned Magistrate had written to the Secretary to the Government of West Bengal for obtaining sanction under Section 197 of the Code of Criminal Procedure against the opposite party no. 4.

4. Learned Advocate appearing on behalf of the petitioner contended that the Superintendent of Police, Alipre should not have directed the officer in charge