Indrajit Mukherjee vs The State of West Bengal and Others

Nure Alam Chowdhury, J.—This Revisional Application u/s 401 read with Section 482 of the Code of Criminal Procedure on behalf of the petitioner husband Indrajit Mukherjee, is directed against the order dated 28th April, 1994, passed by Sri P. Dey, learned Sub-Divisional Judicial Magistrate, Burdwan, in connection with Burdwan Police Station case No. 368 dated 18-7-93 under Sections 498A/346 of the Indian Penal Code, allowing there by the petition on behalf of the wife Nandini Mukherjee (Respondent No. 2 in this application) for recording her statement u/s 164 of the Code of Criminal Procedure for the second time and directing the Investigating Officer of this case to arrange for recording the said statement afresh.

Briefly stated, the facts of the case are as follows:

One Mira Roy lodged a complaint with the officer-in-charge of Burdwan Police Station on 18-7-93 alleging inter alia that her daughter Nandini was married to the petitioner Indrajit Mukherjee on 8th May, 1988 but as the dowry given by the complainant was not up to the expectation of the family of her son-in-law, her daughter was tortured both mentally and physically be her husband Indrajit Mukherjee and by Nandini''s Sister-in-law. It was further alleged that on 18-7-93 the complainant went to Nandini''s matrimonial home but she did not find her daughter Nandini there and on enquiry she did not get any satisfactory answer about the where about so Nandini. Accordingly the complainant apprehended that her daughter was not alive and her dead body might have been done away with or her daughter had been shifted to some unknown place with some illegal intention.

On the basis of the s .aid complaint Burdwan Police Station case No. 368/93 dated 18-7-93 under Sections 498A/346 of the Indian Penal Code was registered.

The petitioner Indrajit Mukherjee was arrested and Nandini was also recovered from a place at Durgapur by the Investigating Agency. Petitioner was released on bail on 20-7-93. But when Smt. Nandini was produced before the learned Sub-Divisional Judicial Magistrate, Burdwan, the Investigating Officer prayed for detaining Nandini in safe custody for a fortnight and record her statement u/s 164 of the Code of Criminal Procedure and ultimately her statement was recorded u/s 164 of the Criminal Procedure Code and the learned Magistrate directed to send Nandini to Liluah home and to be treated/examined by a psychiatrist in S.S.K.M. Hospital, Calcutta.

Smt. Nandini, however, moved the learned Sessions Judge against the order of her said custody and the learned Judge, after hearing all the parties including. Smt. Nandini''s father in person, directed that Smt. Nandini be kept under the care of one Biswanath Mukherjee, an Advocate of that court by order dated 20-7-93. The said order was modified on 13-8-93 on the prayer of Smt. Nandini and she was allowed to go to her brother''s place upon her brother executing a bond.

On 24-3-94. Smt. Nandini made an application before the learned S.D.J.M., Burdwan praying inter alia that the Investigating Officer of this case be directed to take steps for recording her statement u/s 164 of the Code of Criminal Procedure for the second time as she was under the influence of drugs when her earlier statement u/s 164 of the Criminal Procedure Code was recorded. The said application was allowed by the learned Magistrate by order dated 28th April, 1994 as stated above and this has been under challenge by the husband petitioner in this Revisional Application.

In my view, the short point involved in this Revisional Application is whether the learned S.D.J.M. Burdwan has any power of authority or Jurisdiction under the Code of Criminal Procedure, to direct the Investigating Officer of the case to arrange for recording statement of Smt. Nandini Mukherjee u/s 164 Cr. P.C. afresh for the second time.

Learned Advocates appearing for the petitioner, the opposite party No. 2 and the state cited various decisions before this Court in support of their respective contentions but in my view none of those decisions relate to the specific point involved in the matter as stated above.

Mr. Sekhar Bose, learned Advocate appearing on behalf of the petitioner-husband submitted that the marriage ended in divorce on 18-7-93 and contended that the learned Magistrate has no power or authority or jurisdiction to pass the impugned order directing the Investigating Officer to arrange for recording the statement of Smt. Nandini u/s 164 Cr. P.C. and he cited the decisions reported in (a) Balak Ram Vs. State of U.P., , (b) 1978 Cal HN 679 :(1979 Cri LJ 1128), (c) S.N. Sharma Vs. Bipen Kumar Tiwari and Others, (d)1991 Cr LJ 1438, (e) 1992 Cr LJ 527 in support of his contentions.

Mr. Arun Prokash Chatterjee, learned Senior Advocate, appearing on behalf of the opposite party No. 2 supported the impugned order of the learned Magistrate and drew the attention of the court to Section 24 and 28 of the Evidence Act and cited the decisions reported in (a) 1994 (3) Crimes 94, (b) 1994 . 3 crimes (sic) in support of his contentions.

Mr. Kaji Safiullah, learned Public Prosecutor appearing on behalf of the State also supported the contention of Mr. A. P. Chatterjee, learned Senior Advocate, and drew the attention of the court to Sections 53 and 54 of the Code of Criminal Procedure and cited the decisions reported in (a) 1979 Cri LJ 126, (b) Kunjukutty Vs. State of Kerala, (c) State of Uttar Pradesh Vs. Singhara Singh and Others, in support of his contentions.

In my view, the Investigation of a criminal case is completely under the domain of the police and the learned Magistrate has no power or authority or jurisdiction under the Code of Criminal Procedure to direct the Investigating Officer to investigate any case in a particular way including giving direction to the Investigating Officer for taking step for recording the statement of Smt. Nandini Mukherjee afresh at the stage of investigation.

The Revisional Application therefore, succeeds and the impugned order dated 28th April, 1994 passed by Sri P. Dey, learned S.D.J.M., Burdwan in connection with Burdwan Police Station case No. 368 dated 18-7-93 u/s 498A/346 I.P.C. is set aside and the interim order is vacated.

However, this order will not prevent the Investigating Officer of the case to pray before the learned Magistrate for recording the statement of Smt. Nandini u/s 164 Cr. P.C. if considered necessary by him for the purpose of investigation and in that event the learned Magistrate will consider such prayer and the evidentiary value of such statement if any will be considered at the trial in accordance with law.