Chairman, Bolpur Municipality vs Sushanta Sengupta and Others

S.S. Ganguly, J.—This application is directed against an order dated 24/11/84 passed by Shri A. K. Raha, Judicial Magistrate, 1 st Class, Bolpur, Birbhum in G. R. case No. 132 of 1982 under sections 341/352/427/30 7 of the Indian Penal Code. It appears that over the self-same incident alleged to have occurred on 5/6-3-82, both the parties to the present petition lodged information with the Police which matured into G. R. case No. 132 and 133 of 1982 of Bolpur Police Station. On 11/2/84 the petitioner applied to the learned Magistrate seeking permission to engage the lawyer of Bolpur Municipality to assist the learned Assistant Public Prosecutor in charge of the case. This application was rejected on 15/2/84. The petitioner came to this court in revision and on 3/4/84 the Hon''ble Mr. Justice Monoj Kumar Mukherjee set-aside the order and directed the learned Magistrate to accord permission as per the prayer of the petitioner. This order of the Hon''ble Court was brought to the notice of the learned Magistrate sometime in May, 1984.

Thereafter on 28/8/84 the petitioner again filed an application before the learned Magistrate praying for re-investigation in the aforesaid cases and for its analogous hearing with the other cases started at the instance of the respondent, subsequently on 18/9/84 the petitioner filed a fresh application for re-investigation as per the direction of the learned Magistrate. By his order dated 24/11/84 the learned Magistrate did not allowed the prayer for re-investigation. Hence the present revisional application before this court.

The learned Advocate for the petitioner has kindly taken me through a copy of the application filed by the petitioner before the learned Magistrate on 18/9/84. From this application it appears that the Investigating Officer in this case

i) gave the name of a witness as Nihar Dutta, whereas there was no witness bearing that name;

ii) that the Investigating Officer did not record the statement of the Commissioner of the Bolpur Municipality who were involved in this instant case,

iii) that he did not take the statement of even the Sub-divisional Officer of Bolpur who also was a eye witness of the incident;

iv) that he also did not examine the record and the statement of the Executive Officer and the other employees of the Municipality who were eye witnessess of the incident and lastly;

v) that the Investigating Officer had not prepared a seizure list though furnitures and other properties of the Municipality were damaged.

It is urged from the side of the petitioner that the learned Magistrate did not consider the petitioner for further investigation on merit and rejected it on the ground of delay and further that in view of the case made out in the petition the learned Magistrate could and should have ordered further investigation u/s 17 3(9) Cr. P. C. Ram Lall vs. State AIR 1979, SC 791 is cited in this regard.

It is argued from the side of the State, however, that since the pleas of the accused opposite parties u/s 251 Cr.P.C. have already been taken, the trial has commenced in this case and now there is no scope to go back to the stage of investigation. It is also asserted that only the police and not the learned Magistrate who take action u/s 173(8) Cr. P.C. and further that the learned Magistrate passed the order considering not only the delay but of the circumstances of the case.

Accepting the arguments made from the side of the State it was contended by the learned Advocate for the opposite parties that the present petition for further investigation was filed in 1984 whereas the charge-sheet was submitted in it on 7/6/1982. The petitioner failed to take appropriate steps in time and the prayer of the petitioner if allowed will cause further delay in the disposal of the case, thereby extending the agony of the opposite parties who are on suspension.

Now there is little doubt that considerable delay has been made in filing the application for re-investigation; that, however, is not all. Section 173(8) Cr.P.C certainly permits further investigation after the filing of the charge-sheet; but, from that it does not follow that there is no time limit upto which further investigation can be made in a case after the filing of charge-sheet. Admittedly pleas of the opposite parties Nos. 1 to 9 have already been taken in this case. Without entering into the vexed question as to whether the trial has already commenced in this case or not with the taking of the pleas u/s 251 Cr.P.C, it must be said that there has already been much delay in this case and that the hearing of the case will be held-up for a very long time if re-investigation is ordered in this case. That is something which should be avoided. In the circumstances stated I am of the view that there should not be any order for re-investigation in this case u/s 173(8) Cr.P.C. which in view of the decision in Ram Lall vs. State quoted above could very well be ordered, and the learned Magistrate could have ordered in this case. The lower court records must go back to the learned Magistrate immediately and the trial must go on there. If the petitioner feels that witnesses other than those examined and documentary evidence other than what we seized by the Investigating Officer could be examined or proved into evidence he may move the learned Magistrate for exercising his powers u/s 311 Cr.P.C. and section 165 of the Evidence Act and if the name of any person other than the opposite parties Nos. 1 to 9 transpires is being involved in this case at the time of trial the learned Magistrate may be petitioned to exercise his powers u/s 319 of the Cr.P.C. If such petitions are filed from the side of the petitioner at the time of trial or before, the examination of witnesses start, the learned Magistrate will dispose of them in the best interest of justice.

With this observation the present application is disposed of. Send the lower court records back immediately.