Full Judgement
Calcutta High Court (Appellete Side)
Subhadip Pal vs State Of W.B. & Ors on 3 February, 2021
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
CRR 2955 of 2018
Subhadip Pal Vs.
State of W.B. & ors.
For the Petitioner : Mr. Ayan Bhattacharya : Mr. Sharequl Haque : Mr. Aditya Ratan Tiwary : Mr. Amitabrata Hait
For the State : Mr. Saibal Bapuli, Ld.APP : Mr. Arani Bhattacharya
For the O.P. : Mr. Md. Shahjahan Hossain : Mr. Supriyo Das
Heard on: 3rd February, 2021
Judgment on : 3rd February, 2021
The Court:
This is an application challenging the judgment and order
dated 30.08.2018 passed by the learned Additional Sessions
Judge, Bench 2, City Sessions Court, Bichar Bhavan, Calcutta
in Criminal Revision No. 195 of 2017, thereby affirming the
order dated 15th June, 2017 passed by the Metropolitan 2
Magistrate, 5th Court at Calcutta in G.R. No. 2219 of 2015,
dismissing an application under Section 173 (8) of the Code.
Affidavit of service filed on behalf of the petitioner is taken
on record.
Let a copy of the application be served upon Mr. Saibal
Bapuli, learned Additional Public Prosecutor and Mr. Arani
Bhattacharyya, learned advocates, who are present in court
today. Their engagement may be regularised in due course by
the competent authority of the State.
Learned counsel appearing on behalf of the petitioner
submits as follows. The petitioner is the defacto-complainant of
the case. Since he was aggrieved with the charge-sheet
submitted in this case, he preferred an application under
Section 173 (8) of the Code claim for further investigation
before the learned trial Court. The learned Magistrate kept the
application pending. Aggrieved by this, the petitioner
challenged the same before the learned Sessions Court. By the
impugned order, the learned revisional Court dismissed the
application, inter alia, on the ground that in view of the
decisions of the Hon'ble Apex Court passed in Athul Rao -vs-
State of Karnataka, Reeta Nag -vs- State of W.B. & ors. and
Amrutbhai Shambhubhai Patel -vs- Sumanbhai Kanytibhai
Patel & ors., further investigation cannot be directed after 3
cognizance of the offence is taken. Reliance is placed on a
decision of the Hon'ble Apex Court in case of Vinubhai
Haribhai Malaviya -vs- State of Gujarat reported in 2019 (14)
SCALE I and it is submitted that the relevant ratios laid down
in the earlier decisions of the Hon'ble Apex Court in Athul Rao
-vs- State of Karnataka, (2018) 14 SCC 298, Reeta Nag -vs-
State of West Bengal reported in (2009) 9 SCC 129 and
Amrutbhai Shambhubhai Patel -vs- Sumanbhai Kantibhai
Patel reported in 2017 SCC online SC 86, were overruled in the
case of Vinubhai Haribhai Malaviya (supra). In view of the
same, there is no bar on the learned Magistrate to direct
further investigation even after taking cognizance. In this
regard, reliance is also placed on a decision of this Court in
Shuvra Dutta -vs- State of West Bengal & another reported in
2019 SCC Online Cal 7294.
Learned counsel appearing on behalf of the opposite
party/defacto complainant submits as follows. The position of
law is well-settled in view of the decision of the Hon'ble Apex
Court in the case of Vinubhai Haribhai Malaviya (supra). It will
be open to the learned Magistrate to consider the question of
directing further investigation into the offences till charges are
framed. However, the learned Magistrate may be directed to
conclude such proceeding in a time bound. 4
Learned counsel appearing on behalf of the State submits
that in view of the settled position of law, the learned
Magistrate may be directed to conclude the hearing of the
application under Section 173 of the Code at the earliest.
I have heard the submissions of the learned counsels
appearing on behalf of the parties and have perused the
revision petition.
In view of the decision of the Hon'ble Apex Court in
Vinubhai Haribhai Malaviya (supra), it is abundantly clear that
in an appropriate case, a Magistrate can direct further
investigation even after taking of cognizance, in terms of under
Section 173(8) of the Code.
Accordingly, the impugned order is set aside and the
matter is remanded back for final consideration of the
petitioner's application under Section 173 (8) of the Code as
expeditiously as possible, preferably within a period of three
months from the next date of hearing.
With these observations, the revisional application is
disposed of.
5
Urgent photostat certified copies of this order may be
delivered to the learned Advocates for the parties, if applied for,
upon compliance of all formalities.
(Jay Sengupta,J.) ssi
