Sovan Molla vs The State of West Bengal and Another

Ashim Kumar Roy, J.—The present petitioner is the defacto-complainant of the Bishnupur Police Station Case No. 230 of 2007 under Sections 364/302/201/34 of the Indian Penal Code. In this complaint it has been alleged that his brother Kamal Molla was abducted by the accused persons named in the FIR, on the pretext of giving him a job at Gujarat and on the way to his destination at Gujarat, his dead body was found on a Railway Track within the jurisdiction of Chakradharnagar Police Station at Chhatisgarh. According to the complainant, he was killed inside the compartment in the running train and his body was thrown on the Railway Track. Following the discovery of the dead body an unnatural death case was registered at Chakradharnagar Police Station, and post mortem was held and the police commenced investigation.

It is now submitted by the learned advocate of the petitioner that in the meantime, behind the back and without any notice to the defacto complainant, the Investigating Officer, for some oblique purposes and motivatedly moved an application before the Learned Additional Chief Judicial Magistrate, South 24-Parganas, Alipore, for transferring the aforesaid Bishnupur Police Station Case No. 230 of 2007 for investigation to the Chakradharnagar Police Station, where the investigation of the unnatural death case was registered when the Learned Magistrate allowed such prayer without any notice to the defacto-complainant and denying him the opportunity of hearing. It is vehemently urged before this Court that order is absolutely illegal and without jurisdiction, which has been passed without notice to the informant, in clear violation of the principles of natural justice.

On the other hand, Mr. Debobrata Roy, the learned advocate of the State produced the Case Diary and submitted although he is not supporting the role of the police that they shall move a court for transfer of the investigation without any notice to the informant, but the order for transfer has been finally passed by a court. He further submitted already pursuant to the court''s order the original case diary relating to the Bishnupur Police Station Case No. 230 of 2007 has been made over to the Chakradharnagar Police Station for investigation. The copy of the application for transfer and the memo of evidence be kept with the records. According to Mr. Roy at this stage no useful purpose will be served by interfering with the impugned order, otherwise the investigation already done by the Chakradharnagar Police Station would be hampered.

It may be pertinent to note in connection with this case this Court through the Registrar General of the High Court, Calcutta called for a report from the Chakradharnagar Police Station, Roygarh, Chhatisgarh about the fate of the aforesaid unnatural death case which was registered following the recovery of dead body of the brother of the present petitioner from the Railway track. A report has been submitted in this regard, which is lying with the records of this case. It appears from the said report that Chakradharnagar Police Station has received the Case Diary relating to Bishnupur Police Station Case No. 230 of 2007 and the investigation of the case has made sufficient progress but not yet completed.

I have given my anxious and thoughtful consideration to the respective submissions made on behalf of the parties. Perused the materials on record.

Under the scheme of Code of Criminal Procedure and in terms of Section 173(2)(ii) of the Code of Criminal Procedure all the actions taken by the Investigating Officer of the case shall be communicated to the person who at first reported the police about the commission of the offence. In terms of provisions of Section 157(2) of the Code when police decided not to proceed with the investigation the police is legally bound to forthwith notify the informant as regards to the same. Similar is the mandate of the Regulation 278 of the Police Regulation of Bengal in terms thereof after completion of investigation relating to a cognizable offence when police submits its report in final form the informant must be notified about the action taken by the police.

In the case of Bhagwant Singh Vs. Commissioner of Police and Another, the Apex Court also laid down it as a law that while court is going to consider a police report where police submitted final report and prayed for discharge and where court is not inclined to take cognizance on a police report the informant must be given an opportunity of being heard.

In the instant case, although the police has not submitted final report praying for discharge of the accused from the case but moved an application before the Learned Court praying for transfer of the investigation as according to the police no cause of action arose within the territorial limit of Bishnupur Police Station. However, from perusal of the application made in the Court below as well as the affidavit submitted by the Investigating Officer of the case, I find there he highlighted that no materials have been collected by the police during the investigation to show any prima facie case against the petitioner. Thus, when according to the Investigating Officer of the case no materials have been available against the accused persons in such case ordinarily police submitted final report praying for discharge of the accused persons from the case but in this case where it is incumbent upon the police to notify the first informant about the same. However, in the instant case police instead of filing the final report made a prayer for transfer of the case and no notice was sent upon the first informant. In such circumstances the submission of Mr. Chatterjee the Investigating Officer has deliberately did that so as to avoid the necessity of service notice upon the informant and get an order to his prejudice behind his back. I am of the opinion in this circumstances the Investigating Officer is also bound by the mandate of law to notify the informant as well as the court concerned to hear the informant even before making any order of transfer of investigation to a different police station and the informant must have his say and to pursued the court to dislodge the contention of the Investigating Agency. The provisions of law which have been referred to in the foregoing paragraphs makes it mandatory on the part of the police to intimate the informant whatever action is taken by the police be that is a submission of final report or charge-sheet as well as the transfer of investigation to any other police station before its conclusion. In this regard the provisions of Section 173(2)(ii) as well as Section 157(2) of the Code of Criminal Procedure is quite clear and the word used there all actions taken by the police not only include the action of submission of charge-sheet or final report but also an action whereby police sought for transfer of the investigation to any other police station. In this case not only the police has clearly violated the mandate of the law, the Learned Magistrate has also did not act in accordance with law while he made the order for transfer without giving an opportunity to the informant. Thus, I am no hesitation that both the police as well as the Learned Court concerned acted contrary to the law. However, as in the instant case the order of transfer of investigation has been made nearly a year back and immediately thereafter the Case Diary has been handed over to the transferee police station and as I find a report obtained from the transferee police station that in the meantime investigation has made sufficient progress I am of the opinion if the order impugned is interfered with and again the investigation of the case is transferred from the Chakradharnagar Police Station to Bishnupur Police Station that would creates an anomalous situation and would not be conducive to the interest of justice.

However, in this case I find the conduct of the Investigating Officer is not beyond the question as the specific allegation has been made against the Investigating Officer that a month before making such application for transfer of the case the Investigating Officer over phone contacted the defacto-complainant and asked him to withdraw the FIR on payment of some considerable amount of money and the informant immediately wrote a letter to the higher up of the police for change of the Investigating Officer it thus cannot be said that allegations made by the defacto-complainant is without any substance and merits no consideration. The Investigating Officer of the case has been given an opportunity to file affidavit in this regard. It appears from the affidavit filed in court that he has merely denied those allegations but the facts and circumstances is otherwise and could not justify the stands taken by him. In such view of the matter I direct the Director General of Police to probe into the matter and to take follow up action on the basis of the result of such enquiry against the Investigating Officer of the case. It is directed a D.I.G., Presidency Range be entrusted with the charge of such enquiry and in the enquiry both the Investigating Officer as well as the defacto-complainant must also be given an opportunity to have their says. The enquiry must be completed within six months from the date of communication of this order. The Registrar General of the High Court is directed to communicate this order to the Director General of Police, West Bengal and to obtain a report of compliance.

The Registrar General, High Court, Calcutta is also directed to bring this order to the notice of the particular Learned Magistrate, who passed the impugned order.

This criminal revision with the aforesaid observations stands disposed of.

The Criminal Section is directed to communicate this order to the Learned Court below.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.