Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 945

IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT PAUL, J.
Smt. Saswati Dey – Appellant
Versus
The State of West Bengal. – Respondents
CRR 361 of 2019
Decided on : 23-06-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Pawan Kr. Gupta, Ms. Sofia Nesar, Mr. Santanu Sett, Mr. Arnab Saha.
For the Respondent: Mr. Sabir Ahmed.

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 have the power to suo motu order further investigation or reinvestigation after the discharge of the accused.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 173(8) - INVESTIGATION - REINVESTIGATION - TRANSFER OF INVESTIGATION - POWER OF MAGISTRATE - SCOPE AND EXTENT - COURT'S DISCRETION - FAIR AND PROPER INVESTIGATION - PRINCIPLES - POWER OF MAGISTRATE TO DIRECT FURTHER INVESTIGATION - STAGE OF INQUIRY AND TRIAL - DISTINCTION - POWER OF INVESTIGATING AGENCY TO CONDUCT FURTHER INVESTIGATION - SECTION 156(3) - SECTION 2(H) - SECTION 173(8) - SCOPE AND EXTENT - POWER OF MAGISTRATE TO ORDER FURTHER INVESTIGATION SUO MOTU OR ON REQUEST OF COMPLAINANT/INFORMANT AFTER COGNIZANCE IS TAKEN AND ACCUSED PERSON APPEARS - WHETHER AVAILABLE - SECTION 227 - SECTION 228 - SCOPE AND EXTENT - POWER OF MAGISTRATE TO DISCHARGE ACCUSED - EFFECT - POWER OF MAGISTRATE TO SUO MOTU ORDER FURTHER INVESTIGATION OR REINVESTIGATION AFTER DISCHARGE OF ACCUSED - WHETHER AVAILABLE - SECTION 319 - SCOPE AND EXTENT - POWER OF COURT TO ADD PERSON AS ACCUSED OF CRIMINAL OFFENCE - CIRCUMSTANCES - CONSTITUTIONAL MANDATE UNDER ARTICLES 20 AND 21 - FAIR AND EFFICACIOUS TRIAL - PROTECTION OF VICTIMS AND SOCIETY - SECTION 311 - SECTION 319 - SCOPE AND EXTENT - POWER OF COURT TO SUMMON WITNESS OR ISSUE NOTICE TO STAND TRIAL AT ANY STAGE - RELEVANCE - SECTION 190 - SECTION 200 - SECTION 202 - SECTION 204 - SCOPE AND EXTENT - POWER OF MAGISTRATE TO TAKE COGNIZANCE, FRAME CHARGE, ETC. - RELEVANCE - SECTION 167(2) - SECTION 173 - SECTION 227 - SECTION 228 - SCOPE AND EXTENT - POWER OF MAGISTRATE TO TAKE COGNIZANCE, DISCHARGE ACCUSED, DIRECT FURTHER INVESTIGATION, ETC. - DISTINCTION BETWEEN PRE-COGNIZANCE AND POST-COGNIZANCE STAGE - POWER OF MAGISTRATE TO ORDER FURTHER INVESTIGATION AT PRE-COGNIZANCE AND POST-COGNIZANCE STAGE - DISTINCTION - POWER OF MAGISTRATE TO SUO MOTU ORDER FURTHER INVESTIGATION OR REINVESTIGATION AFTER DISCHARGE OF ACCUSED - WHETHER AVAILABLE - SECTION 173(8) - SCOPE AND EXTENT - POWER OF INVESTIGATING OFFICER TO CONDUCT FURTHER INVESTIGATION AND SUBMIT EVIDENCE AFTER FORWARDING REPORT - RELEVANCE - SECTION 482 - SCOPE AND EXTENT - INHERENT JURISDICTION OF HIGH COURT - CIRCUMSTANCES FOR EXERCISE - PREVENTING ABUSE OF PROCESS OF COURT - SECURING ENDS OF JUSTICE - LIMITATIONS - POWER OF HIGH COURT TO CHANGE INVESTIGATING OFFICER OR APPOINT OWN AGENCY TO INVESTIGATE CRIME - WHETHER AVAILABLE - POWER OF HIGH COURT TO ISSUE DIRECTIONS TO POLICE AS TO HOW INVESTIGATION IS TO BE CONDUCTED - WHETHER AVAILABLE - POWER OF HIGH COURT TO INTERFERE WITH JUDICIAL INDEPENDENCE OF SUBORDINATE COURTS - WHETHER AVAILABLE - POWER OF HIGH COURT TO ISSUE DIRECTIONS FOR DE NOVO INVESTIGATION IN REGARD TO UNNATURAL DEATH - SCOPE AND EXTENT.
Fact of the Case:

The petitioner, the mother of the deceased, filed a revisional application against the impugned final form of report vide FRMF No. 34 of 2018 dated 09.04.2018 under Section 302 of the Indian Penal Code filed by an Officer of Special Investigation of Police, Highways and Railway Cells, Criminal Investigation Department, West Bengal (CID). The petitioner's case was that the instant revisional application was in respect of the purported investigation of a case of mysterious murder of her only young son and is admittedly filed praying for a fourth round of investigation before this Court in furtherance of pursuit of their tangible and substantial justice against the injustices in the form of sufferance from abrupt loss of her only young son in an incident of a mysterious murder.
Finding of the Court:

The Court found that the materials on record vis a vis the charge sheet proved that the investigation had been conducted in a fair manner and was prima facie not malafide and thus the final report filed was in accordance with law. Thus, there was no scope for interference in respect of the order under revision.
Issues: 1. Whether the magistrate has the power to order further investigation suo motu or on the request of the complainant/informant after cognizance is taken and the accused person appears? 2. Whether the magistrate has the power to suo motu order further investigation or reinvestigation after the discharge of the accused?
Ratio Decidendi: 1. 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. 2. The magistrate has no power to suo motu order further investigation or reinvestigation after the discharge of the accused.
Final Decision: The revisional application was dismissed.

JUDGMENT :

Shampa Dutt (Paul), J.:

1. The present revision has been preferred against the impugned final form of report vide FRMF No. 34 of 2018 dated 09.04.2018 under Section 302 of the Indian Penal Code filed by one Ataur Rahaman, an Officer of Special Investigation of Police, Highways and Railway Cells, Criminal Investigation Department, West Bengal (CID).

2. The petitioner’s case is that the instant revisional application is in respect of the purported investigation of a case of mysterious murder of her only young son and is admittedly filed praying for a fourth round of investigation before this Court in furtherance of pursuit of their tangible and substantial justice against the injustices in the form of sufferance from abrupt loss of her only young son in an incident of a mysterious murder.

3. It is stated by the petitioner that she is the mother of the victim boy, Anik Kumar Dey, who was a successful engineer from Jadavpur University and started his service in a prestigious company namely ITD Cementation at Delhi with impeccable integrity and dignity. In an unfortunate incident on 11.02.2015, the victim boy died following an incident of a mysterious murder with culpable motive by the accused persons who are yet to be booked through an effective, honest, logical and objective investigation by an honest investigation agency.

4. The petitioner being the biological mother of the victim boy has no other motivation but to pursue with the cause of justice by securing a logical, scientific and meaningful investigation into the incident of murder of her son by an honest and sincere investigation agency. Admittedly, by an order dated March 3, 2017 passed in CRR No. 156 of 2017 this Hon’ble Court reposing trust had directed the Criminal Investigation Department, West Bengal to cause an effective investigation into the crime but unfortunately the same has not been effectively and logically carried out by the Investigating Officer of the said agency and thereafter final report was submitted before the Learned Magistrate.

5. During the course of investigation by the Criminal Investigation Department, West Bengal, the petitioner along with her husband, namely, Arun Kumar Dey, were involved with the interrogation process to a little extent wherefrom the petitioner and her husband found confidence upon the manner of investigation being carried out but subsequently at the fag end of the purport investigation, the investigating officer did not perform competently and or with integrity. Ultimately the Investigating Officer was replaced by another Investigating Officer and he ultimately and mechanically filed his final report in the form of the impugned FRMF before the Learned Additional Chief Judicial Magistrate, Sealdah in GRPS No. 42 of 2015 dated 20.02.2015 under Section 302 of the Indian Penal Code, 1860 without any logical basis and reasoning.

6. The Hon’ble Court in the order dated 03.03.2017 passed in CRR No. 156 of 2017 was pleased to direct further investigation into the matter to unravel the trust and book the real perpetrator behind the crime. Unfortunately, the purported investigation carried out pursuant to the order dated 03.03.2017 passed in CRR No. 156 of 2017, could not bring out the truth and/or ascertain the cause of death with logical and rational basis leaving behind many essential questions unanswered and indispensible information unaddressed as well as the perpetrator of the crime was not been booked and thereby the mysterious death with predominant culpable elements remains unsolved.

7. The petitioner therefore felt it necessary that thorough and honest sincere investigation by any other special investigating agency is awfully required to unravel truth of mysterious death of his son. The petitioner thereby is contemplating to depute any other special investigation agency with better skill, competency and impeccable integrity like Central Bureau of Investigation or any other like investigation agency to engage into the matt