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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Somnath Gupta – Petitioner
Versus
State of West Bengal and Others – Respondents
CRR No. 945 of 2019
Decided On : 26-07-2023
CRIMINAL REVISION - SECTION 173(8) OF CRPC - FURTHER INVESTIGATION - SECOND TIME - INVESTIGATION ALREADY CONDUCTED - CHARGE SHEET FILED - COGNIZANCE TAKEN - NO MALA FIDE INTENTION - NO INTERFERENCE BY COURT - ABUSE OF PROCESS OF COURT.
Fact of the Case:
The petitioner, a film director, alleged that his censor copy DVD was stolen from the respondent actress and later found for sale in a shop. He lodged a complaint with the DEB and instituted a police case under the Copyright Act and the IPC. The police investigated and filed a charge sheet against the seller of the pirated DVDs. The petitioner then filed a separate case against the respondents under the IPC and the Copyright Act. The I.O. did not take any positive initiation to unearth the truth and demanded a bribe from the petitioner. The petitioner filed a writ petition before the High Court, which was disposed of with a direction that the petitioner could seek relief before the trial court as per Section 173(8) of the CrPC. The petitioner filed an application under Section 173(8) of the CrPC before the trial court praying for further investigation on some important points which the I.O. did not perform during his investigation. The trial court dismissed the application. The petitioner filed a criminal revision before the Sessions Judge, which was also dismissed.
Finding of the Court:
The court held that the investigation has been conducted in a fair manner and is prima facie not mala-fide and thus the charge sheet filed is in accordance with law. Accordingly cognizance taken is also in accordance with law. There is thus no scope for interference in respect of the order under revision. Any further indulgence shown to the petitioner/complainant would clearly amount to an abuse of the process of court and law and also be against the interest of justice.
Issues: 1. Whether the investigation was conducted in a fair manner? 2. Whether the charge sheet filed is in accordance with law? 3. Whether the cognizance taken is in accordance with law? 4. Whether there is any scope for interference in respect of the order under revision?
Ratio Decidendi: 1. The court relied on the Supreme Court judgments in Romila Thapar vs. Union of India, Vinubhai Haribhai Malaviya vs. State of Gujarat, and Devendra Nath Singh vs. State of Bihar and Others to hold that the investigation has been conducted in a fair manner and is prima facie not mala-fide. 2. The court also relied on the Supreme Court judgment in Divine Retreat Centre vs. State of Kerala and Others to hold that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis. 3. The court further held that the charge sheet filed is in accordance with law and the cognizance taken is also in accordance with law. 4. The court held that there is no scope for interference in respect of the order under revision as any further indulgence shown to the petitioner/complainant would clearly amount to an abuse of the process of court and law and also be against the interest of justice.
Final Decision: The revisional application being CRR 945 of 2019 is accordingly dismissed. The order dated 21.02.2019 passed in Criminal Motion being No. 199 of 2018 (Somnath Gupta vs. Kumkum Dey and Others) passed by the learned Additional District & Sessions Judge (1st Court) at Serampore, is hereby affirmed. All connected applications, if any, stands disposed of. Interim order, if any, stands vacated.
JUDGMENT :
SHAMPA DUTT (PAUL), J.
1. The present revision has been preferred praying for further investigation for the 2nd time and against an order dated 21.02.2019 passed in Criminal Motion being No. 199 of 2018 (Somnath Gupta vs. Kumkum Dey and Others) passed by the learned Additional District & Sessions Judge (1st Court) at Serampore, thereby affirming the order dated 07.05.2018 of the learned Judicial Magistrate, 5th Court, Serampore in G.R. 1572 of 2015.
2. The petitioner's case is that the petitioner had got a License as a Film Director, being Membership No. 416, from Eastern India Motion Picture Directors' Association, having its registered No. i.e. 17690 (T.U. Act) dated 17.01.2013 affiliated to FCTWEL, 30, Chandi Ghosh Road, Kolkata-700 040.
3. The petitioner got the Producer License in the name and style of “M/S. S.G. FILM PRODUCTION” from Eastern India Motion Picture Association (EIMPA) and also membership of distributor being Membership card No. D-6119 issued by the Eastern India Motion Picture Association (EIMPA) and completed the shooting of a Bengali film “O-Kay …. ? At Night in the Forest (Bengali)” by spending a sum of Rs.37,71,500/- and thereafter the petitioner sent the film to the Central Board of Film Certification, Government of India for License Certificate and got the permission on 09.01.2015 from the concerned authority. On 18.01.2015, the respondent no. 2 the actress of the above mentioned film came and requested the petitioner to hand over the Censor Copy of the DVD with promise to return but unfortunately after lapse of time the Censor Copy DVD was not returned by the respondent no. 2 in spite of repeated requests by the petitioner.
4. In the month of March, 2015 the petitioner came to know from reliable source that the censor copy DVD which was handed over to the respondent no. 2 was available for sale to one DVD shop at Uttarpara namely “Sangam.” The petitioner on 09.03.2015 lodged a written complaint before the DEB, Chinsurah and instituted Uttarpara P.S. Case No. 79/15 dated 16.03.2015 under Sections 63/65/68A of the Copy Right Act, and Sections 292/293 of the Indian Penal Code against the said Shop Keeper namely Madan Sonkar. The case ended in charge sheet no. 328/2016 dated 31.07.2016.
5. In the said case the Police of DEB seized huge number of pirated CDs and DVDs including the pirated censor copy of the CDs and DVDs of the petitioner's movie “O Kay.....? At Night in the Forest (Bengali).” That the censor copy of the original DVD (Mother copy) which was handed over to the respondent no. 2 on good faith was sold to the petitioner by the shop keeper of “Sangam” operated by Mr. Madan Sonkar during his visit to “Sangam” on 08.03.2015.
6. Though the police of DEB investigated the matter only against the Seller of pirated CDs and DVDs, they did not investigate the matter from where it originated or at whose instance the same was pirated from the CDs and DVDs of that film originally copied, distributed and/or sold in the market, which compelled the petitioner to institute a separate case against the respondent nos.2, 3 and 4 which was registered as Uttarpara P.S Case No. 295/2015 dated 28.08.2015 under Sections 420/406/468/120B/34 of the Indian Penal Code and Sections 63/65/68 of the Copy Right Act.
7. During the course of investigation of the case, the I.O of the case S.I. Maheswar Majhi took up the investigation but ended the matter by submitting FRT. On being aggrieved the petitioner prayed for further investigation before the learned trial court and after thorough hearing, the court was pleased to direct I.C Uttarpara P.S for further investigation on 10.01.2017 and accordingly the matter was taken up for investigation by another I.O of Uttarpara P.S namely S.I. Swarup Kumar Josh.
8. That though the learned A.C.J.M. Serampore was pleased to order for further investigation of the case but the I.O. of the case S.I. Swarup Kumar Josh did not take any positive initiation to unearth the truth, he only made a
The court emphasized that further investigation must be justified by new evidence or deficiencies in the prior investigation, and the discretion to order it lies with the Magistrate based on case fac....
Further investigation – Whether further investigation should or should not be ordered is within discretion of Magistrate who will exercise such discretion on facts of each case and in accordance with....
The court affirmed that magistrates cannot order further investigations post-cognizance without evidence of malafide, upholding the legitimacy of the charge sheet filed under Section 498A.
The magistrate has no power to order further investigation suo motu or on the request of the complainant/informant after cognizance is taken and the accused person appears, nor does the magistrate ha....
The court emphasized the necessity of fair investigation in criminal proceedings and clarified the powers of the Magistrate to order further investigation under specific circumstances.
A Magistrate cannot order further investigation after charges are framed; this power exists only at the pre-cognizance stage to ensure a fair investigation.
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