The Calcutta High Court on September 7th, 2018, in the case of
Sri Indranil Mukherjee v. State of West Bengal & Anr. has clarified that a Magistrate is not barred from directing
further investigation in a criminal case after the police have filed a final report/chargesheet under
Section 173(2) of the Code of Criminal Procedure, 1973.
In the instant case, a petition was filed by a complaint alleging that he had been attacked by two persons, both of whom he named in the FIR. However, in the final report submitted to the Magistrate, the police only named one of the persons as accused. The petitioner challenged the final report before the Magistrate, contending that the case should also be registered against the second attacker he named. But the Magistrate declined to order further investigation in the incident by relying on the 2017 Supreme Court verdict in
Amrut Bhai Patel v. Suman Bhai Kanti Bhai Patel and Ors which stated that the complainant cannot insist for further investigation when cognizance has already been taken in respect of the offence alleged.
The High Court, however, found that the case in hand is distinguishable from the
Amrut Bhai case, as in that case the plea for further investigation was moved when the case had reached the stage of final arguments. The petitioner’s counsel, Advocate Ayan Bhattacharya, directed the attention of the Court to various other precedents which indicated that the Magistrate could order further investigation if required under
Section 173 (8) of the Code of Criminal Procedure, 1973, which lays down
: “
Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section(2).” Moreover, the court also observed that the Magistrate’s power to order
further investigation is different from ordering a
re-investigation or a
de novo investigation. Re-investigation and
de novo investigation can only be ordered by the Higher Judiciary under
Section 482 of the Code of Criminal Procedure, 1973 or
Article 226 of the Constitution of India and not by the Magistrate courts. Considering the facts of the case,
JusticeShivakant Prasad held that the Magistrate can and should order further investigation in criminal cases under
Section 173 (8) of the Code of Criminal Procedure, 1973 where it is required
in the larger interest of justice. “
Thus, in the larger interest of the justice and for fair trial, it is imperative for the Magistrate to grant further investigation because if the order impugned is allowed to be sustained, it will amount to arming the police with unbridled power to exonerate any person from the periphery of the investigation and it would be playing into the hands of the I.O. who submitted the charge sheet against one accused exonerating another by not sent up him in the charge sheet with an ulterior design,” the judgment reads. However, in line with the
Amrut Bhai case, the court noted that such power may be precluded at the culminating stage of trial after cognizance has been taken on framing of charges against the accused on the basis of the final report. With these observations, the Magistrate’s earlier order was set aside and the Additional Chief Judicial Magistrate was directed to examine the police papers in the case diary, before taking cognizance on the final report.
No Interference Needed When Adult Woman Marries as Per Her Choice and Decides to Convert: Calcutta High Court
Judiciary
Dec 23, 2020
Gautami Chakravarty
(
Editor: Ekta Joshi
)
13 Shares
The Calcutta High recently made it clear that if an adult marries as per her choice and decides to convert and not return to her paternal house, there could be no interference in the matter.The Bench of Justice Sanjib Banerjee and Justice Arijit Banerjee was hearing a plea by a father alleging that daughter aged 19 had gone missing on or about September 15, 2020.The background of the CaseAccording to a report filed by the Officer-in-Charge of Murutia Police Station dated December...
Calcutta High Court Expresses Displeasure Against Registry for Not Listing Petition for 23 Years
Judiciary
Dec 09, 2020
Gautami Chakravarty
(
Editor: Ekta Joshi
)
5 Shares
The Calcutta High Court on Friday (4th December, 2020) expressed its strong displeasure against its Registry for not listing a Habeas Corpus petition for the last 23 years in a case relating to a mother allegedly not having been handed over to her child following his birth at a hospital. ‘Though different directions were issued with the further order to the Registry of this court to list the matter after three months, it is a matter of great misfortune that this matter is...
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