Dr. Akhtaruzzaman Vs. The State and another, (Muhammad Khurshid Alam Sarker , J.)

Case No: Criminal Miscellaneous Case No. 32418 of 2015

Judge: Md. Rezaul Haque, J And Muhammad Khurshid Alam Sarkar, J

Court: High Court Division,

Advocate: Mrs. Tania Amir, Senior Advocate ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Dr. Akhtaruzzaman

Respondent: The State and another

Subject: Code of Criminal Procedure

Delivery Date: 2019-11-30

HIGH COURT DIVISION

(criminal miscellaneous jurisdiction)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

 

Judgment on

14.12.2017

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Dr. Akhtaruzzaman

. . .Petitioner

-Versus-

The State and another

. . .Respondent

Code of Criminal Procedure (V of 1898)

Sections 190 (1) (a), 200, 202, 203 and 204

After examining the informant under Section 200 of the CrPC, the learned Magistrate was duty bound to examine the other witnesses listed in the Naraji application and, thereafter, the learned Magistrate either could have taken cognizance directly under Section 190(1)(a) of the CrPC, if satisfied, or could have proceeded towards judicial inquiry. The moment the Magistrate would decide to examine the complainant (Naraji applicant) under Section 200 of the CrPC, s/he is bound either to take cognizance under Section 190(1)(a) of the CrPC or to take steps under Section 202 CrPC for judicial inquiry/investigation, inquiry/investigation by the police, inquiry/investigation by the other person and, after receiving the report of inquiry/investigation from the judicial Magistrate/police/other person, the Magistrate shall either dismiss the complaint under Section 203 of the CrPC or issue process against the accused under Section 204 of the CrPC. . . .(16 and 22)

Code of Criminal Procedure (V of 1898)

Section 156

Whenvever a Magistrate is approached by a complainant with a complaint  petition or Naraji petition, s/he may order the OC of the concerned police station to treate it as an FIR and, thereby, investigate the same. So, it is vividly clear that Section 156(3) is a provision about investigation of a case; not about further investigation. . . . (18)

Code of Criminal Procedure (V of 1898)

Sections 173(3B) and 200

The Phraseology “further investigation” has been used only in the sub-Section 3B of Section 173 of the CrPC. From its perusal our understanding is that, after submission of the police report, at any point of time before pronouncement of judgment, the same may be carried out by the police. Now, the pertinent question comes up as to whose instance the aforesaid further investigation would be commenced. An officer-in-charge of the concerned police station may suo motu start further investigation. Also, upon being directed by his higher authority or by the Magistrate, the OC of the concerned police station may conduct further investigation. Upon receipt of the police report submitted by the IO, if the Magistrate finds that the investigation has been done by the IO in a perfunctory manner, the Magistrate may direct further investigation without even receiving Naraji application or objection from the informant-side. If the magistrate receives a Naraji application, s/he may order for further investigation without examining the complainant (informant) under Section 200 of the CrPC treating the same simply as an ‘Objection’ against the police report. . . .(20)

Code of Criminal Procedure (V of 1898)

Sections 156(3), 173(3B), 190, 200 and 202

The purpose of carrying out the examination on the provisions of Sections 156(3), 173(3B), 190, 200 and 202 of the CrPC, was to find out the statutory source as to the Magistrate’s power of ordering further investigation. It is a settled law in our jurisdiction that the Magistrate after receiving the police report is empowered to direct further investigation and, by carrying out the above exercise, this Court simply outlined the time/stage at which the Magistrate should order for further investigation.       . . .(23)

Code of Criminal Procedure (V of 1898)

Sections 190, 241A and 242

However, within the four corners of the CrPC, there is no provision entitling an FIR-named accused to file an application for discharge until cognizance is taken and charge is brought/framed against an accused by the trial Court.                                                 . . .(26)

Code of Criminal Procedure (V of 1898)

Sections 241, 265C and 439(2)

When any Court passes an order against a person, who has been discharged under Section 241A/265C of the CrPC, terming and treating him as an accused and thereby to commence investigation/further investigation/ inquiry against the said discharged person, it would be an ‘order made to the prejudice of the accused’, as enunciated in Section 439(2) of the CrPC. When an order of judicial inquiry is passed by any Sessions Judge/ Magistrate, it cannot be termed as an order ‘prejudicial’ to the accused, for, the accused-petitioner must not speculate in advance that the outcome of the judicial inquiry shall be against her/him.        . . .(27 and 28)

Code of Criminal Procedure (V of 1898)

Sections 203 and 436

The Proviso of this Section makes provision for showing cause to an accused person who has been discharged, but consequent to dismissal of a complaint case by the Magistrate under Section 203 of the CrPC, when the complainant files revision before the Sessions Judge, there is no requirement in the law for affording opportunity of hearing to the accused person.       . . . (29)

Code of Criminal Procedure (V of 1898)

Sections 265C and 561A

The petitioner moved this Court after the learned Magistrate took cognizance of the offence against the petitioner and, thus, at this stage the accused-petitioner had two options, namely, either to wait for sending the case to the trial Court where he would have the opportunity to seek discharge from the charge  brought against him by filing an application under Section 265C of the CrPC or he could have sought quashment of the proceedings against him, instead of questioning the legality and propriety of the impugned order, for, an accused can seek quashment of a criminal case at any stage in a fit and proper case.     . . . (30)

Md. Abul Bashar Vs. The State, 1986 BLD 149; Shah Kutubuddin Talukder @ Ruyel Vs. The State 10 ALR 2017 (2) 151 and Md. Kamruzzaman Vs. The State 2017 (2) LNJ 19 ref.

Mrs. Tania Amir, Senior Advocate

. . .For the Petitioner

Mr. Zahurul Islam Mukul, with

Mr. Sarkar Tariqul Islam, Advocates

. . . For the opposite party No. 2

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Pursuant to an application filed by the accused-petitioner under Section 561A of the Code of Criminal Procedure, 1898 (CrPC), this Rule was issued on 19.08.2015 calling upon the opposite parties to show cause as to why the Judgment and Order dated 28.10.2014 passed by the learned Metropolitan Sessions Judge, Rajshahi in Metro Criminal Revision No. 83 of 2014 allowing the revision upon setting aside the Order dated 30.06.2014 passed by the learned Metropolitan Magistrate, cognizance Court, “Ka-Anchal”, Rajshahi accepting the police report in G.R. Case No. 886 of 2010 corresponding to Boalia Model Police Station Case No. 24 dated 14.07.2010, under Sections 302/114/34 of the Penal Code, should not be quashed. 

2.             The background of issuance of the Rule is that Mrs. Komela Begum Kona, as informant, lodged the FIR with the Boalia Police Station of Rajshahi alleging, inter-alia, that she purchased 5 kathas of land from Dr. Akhtaruzzaman and after selling 2½ kathas of land, she constructed residential house in rest of 2½ kathas. Subsequently, her 2 kathas of residential land was acquired and she applied for compensation money, but Dr. Akhtaruzzaman raised objection in getting compensation. After holding several dialogue (salish) regarding the dispute, Dr. Akhtaruzzaman promised to give Tk. 50,000/-. On 14.07.2010, when the informant and her son Sumon went to the chamber of Dr. Akhtaruzzaman at 18.40 pm to get the said money as per the direction of Rashid Mama (brother-in-law of Dr. Akhtaruzzaman), they found Rajib, Chutan, Barun, Moinul, Rokon, Mahfuz, Habul (Babu), Kuddus, Khurshed, Rashid, Alam and some other men at the Dr. Akhtaruzzaman’s chamber. Sumon then asked them about Rashid Mama. At that point of time, Arif pushed Sumon from back side and Sumon reacted. Then, Dr. Akhtaruzzaman ordered them uttering that “®a¡l¡ p¤je­L i¡m L­l V¡L¡ ¢c­u ®c”. At that time, Arif dealt a Hasua blow on Sumon and when Sumon tried to resist, he got injury in elbow; then Shimul and Diner hacked Sumon with Chapatti and Sumon fell down on earth; Arif and Rajib attacked on Sumon’s two hands by Ramda; Moinul and Sharif used Chinese axe on Sumon’s legs and others inflicted injuries indiscriminately by iron-rods on the different parts of the body of Sumon. When the informant requested Dr. Akhtaruzzaman not to kill her son, he ordered his hoodlums to nab her also, but she managed to escape from that place. By that time, people came to the place of occurrence and took Sumon to Rajshahi Medical College Hospital where the doctors declared him dead.

3.             Police after investigation submitted charge sheet no. 370 dated 25.11.2010 against 9 persons, although 15 persons were named in the FIR. Investigating Officer recommended to release Dr. Akhtaruzzaman and other 6 accused persons from their bail bonds and did not send them up in the charge sheet. The informant, then, filed a Naraji application before the learned Magistrate praying for taking cognizance against all the FIR-named accused persons and the learned Magistrate, after examining the informant under Section 200 of the CrPC, ordered for further investigation of the case by the Criminal Investigation Department (CID) fixing 26.07.2011 for submitting report. Mr. Ahmed Ali, Assistant Superintendent of Police of CID, after carrying out further investigation, on 15.06.2012 submitted supplementary police report in which Dr. Akhtaruzzaman and three other FIR-named accused persons were not sent up. The informant again on 02.09.2012 filed a Naraji application before the learned Magistrate against the above supplementary charge sheet with a prayer to take cognizance against the not-sent-up accused persons and the learned Magistrate, after examining the informant under Section 200 of the CrPC, was pleased to send the case again to the CID for further investigation and fixed 11.11.2012 for submitting report. The Investigating Officer, after investigation, submitted supplementary police report no. 149 dated 10.06.2013 in which the petitioner and other 9 accused persons were not sent up. The informant again submitted a Naraji application on 25.08.2013 with a prayer to take cognizance against all the accused persons stating that the Investigating Officer without examining eye witnesses filed the investigation report. The learned Magistrate again examined the informant under Section 200 of the CrPC and, after hearing both the parties, by his order dated 30.06.2014, was pleased to accept the supplementary police report no. 149 dated 10.06.2013 and cleared the not-sent-up accused persons, including Dr. Akhtaruzzaman, off the accusation brought against them in the FIR. The informant being aggrieved by and dissatisfied with the order dated 30.06.2014 preferred Criminal Revision No. 686 of 2014 before the learned Metropolitan Sessions Judge, Rajshahi who upon hearing the informant and the State was pleased to allow the revision directing the learned Magistrate to conduct judicial inquiry of this case by his Judgment and Order dated 28.10.2014 and, accordingly, the learned Magistrate upon carrying out judicial inquiry of the occurrence submitted a report on 12.01.2015 and, thereafter, on 21.04.2015 the learned Magistrate of cognizance Court for “Ka-Anchal” took cognizance against the petitioner and other 15 persons.

4.             Mrs. Tania Amir, the learned Senior Advocate appearing for the petitioner, takes us through the police reports and contends that this case was investigated three times by three different Investigating Officers, who all, after examining the neutral and relevant witnesses, found that the petitioner and some other accused persons have been falsely implicated in the case out of grudge for protesting the illegal drug trafficking of the informant and the victim and submits that, in passing the impugned order for judicial inquiry of the case, the learned Sessions Judge acted whimsically causing unnecessary harassments to the accused-petitioner who is known as a philanthropist in the locality. She continues to submit that in view of the fact that following filing Naraji petitions 3 (three) times by the informant against the police reports and each time the Magistrate having ordered for further investigation and, at last, the third police report being accepted by the learned Magistrate upon considering all the attending facts and circumstances, allowing of the informant’s revision application by the learned Sessions Judge clearly demonstrates his failure to apply his mind judiciously.

5.             The learned Advocate for the petitioner, then, reads over Sections 435 concurrently with 439(2) of the CrPC and submits that the learned Sessions Judge committed a serious error of law by not affording this petitioner an opportunity of placing his case before the revision Court and argues that the learned Sessions Judge’s order for carrying out judicial inquiry has been passed illegally and, therefore, pursuant to the judicial inquiry report, taking of cognizance against the accused-petitioner is also illegal and, consequently, the proceeding against the petitioner is liable to be quashed. In support her above submissions, she refers to the case of Md Abul Bashar Vs The State 1986 BLD 249.

6.             Mrs. Tania Amir then submits that judicial inquiry report having been based mainly on the deposition of the informant, who is married & remarried as many as six times and all through her life she is engaged in drug trafficking, intimidating and blackmailing the ordinary law-abiding citizens and in this perspective, her deposition should not have been taken into consideration by the learned Magistrate for taking cognizance against the accused-petitioner. She submits that this Court should not shrug off its duty to protect a law abiding citizen, like the present petitioner, from the harassments of malicious and vexatious criminal case filed by a drug trafficker against whom a number of criminal cases are pending and, the learned Advocate for the petitioner, humbly requests this Court to interfere with the order of taking cognizance against the petitioner and thereby quash the proceedings against this accused-petitioner.

7.             The learned Advocate for the petitioner contends that because of being accused in this false case, the accused-petitioner is being tormented since lodging the FIR in the year 2010 despite being discharged by the Magistrate after remaining entangled in this vexatious case for long four years and submits that taking cognizance against the petitioner merely on the basis of deposition of the informant, who is of highly immoral character, and her cohorts, has been an abuse of the process of the Court. She submits that the learned Sessions Judge ought to have commenced the trial of the case on the basis of the police report which was accepted by the Magistrate and during the trial, had any evidence of alleged offence against the petitioner been revealed, the trial Court would have been in a position to order further investigation at that relevant point of time.

8.             By making the above submissions, the learned Advocate for the petitioner prays for quashing the proceedings, so far as it relates to the petitioner only, and making the Rule absolute.

9.             Mr. Zahurul Islam Mukul, the learned Advocate appearing for the informant-opposite party no. 2, submits that since the impugned order has already been acted upon through completion of judicial inquiry of the case and, thereafter, cognizance has also been taken against the petitioner, the present Rule has become infructuous long ago. He submits that the present application is misconceived one, inasmuch as after taking cognizance against the accused-petitioner, his proper course of action would have been to file an application for discharge under Section 265C of the CrPC before the trial Court.

10.          The learned Advocate for the informant, then, refers to the case of Shah Kutubuddin Talukder @ Ruyel Vs The State 10 ALR 2017(2) 151 and submits that there was no scope for an FIR-named accused to file an application for discharge before the Magistrate during the investigation stage and, therefore, it cannot be said that the accused-petitioner was discharged by the Magistrate pursuant to the petitioner’s application for discharge. He submits that the petitioner was merely released from his bail bond by the Magistrate when the Magistrate had accepted the recommendation made by the Investigating Officer in the police report. Although an accused becomes cleared off the accusation brought in the FIR by being released from the bail bond, there is no legal impediment in the law to file a complaint petition on the self-same allegation against the same accused and the Magistrate is at liberty to take cognizance, he submits.

11.          Mr. Zahurul Islam Mukul next places sub-Section 2 of Section 439 of the CrPC and submits that this provision becomes relevant, and the same may be applied accordingly, in a case where an accused is discharged under Section 241A or 265C of the CrPC. He professes that it is not applicable for an accused who has simply been released from his bail bond and has been cleared off the accusation brought in the FIR. To substantiate his above count of submission, he relies on the case of Sirajuddin Vs State 48 DLR 76. 

12.          The learned Advocate for the informant, lastly, alleges that in the past the petitioner was desperately trying to escape from the accusation brought against him in the FIR by unduly influencing the Investigating Officers and, now, by abusing the process of the Court he has taken recourse to the inherent jurisdiction of this Court with a motive to delay the commencement of the trial and prays that, since the petitioner’s quashment petition is nothing but a second revision and the same is liable to be discharged and after discharging the Rule, there should be a direction upon the learned Magistrate to make the case ready for trial within the shortest possible time and there should be another direction upon the trial Court to complete the trial on priority basis within specified time.

13.          After hearing the learned Advocate for the petitioner and the learned Advocate for the opposite party no. 2, having gone through the petition and counter affidavits together with their annexures, the questions surface to be answered by this Court are; (1) whether the learned Sessions Judge committed any illegality in ordering judicial inquiry of the case, (2) whether the learned Sessions Judge was duty bound to hear the FIR-named accused petitioner in course of disposing of the revision application filed by the informant, (3) whether after taking cognizance against the petitioner by the Magistrate, the petitioner is competent to challenge the impugned order in this Court without first seeking discharge under Section 265C of the CrPC  and (4) whether this Court can quash the proceedings so far as it relates to the petitioner despite non-challenging the order of taking cognizance against the petitioner passed by the Magistrate.

14.          Let us first take up the issue as to whether the impugned order dated 28.01.2014, passed by the learned Metropolitan Sessions Judge of Rajshahi for carrying out judicial inquiry of this case, was proper and legal. To this end, we may look at the chronology of events that took place during the investigation of this case. After receiving the first police report dated 25.11.2010 and upon going through the Naraji petition of the informant, the learned Magistrate found it to be an improper police report and by his order dated 31.05.2011 directed further investigation by the CID having made an observation that IO having been seriously influenced by the FIR-named accused persons, abstained from recording the statements of the relevant witnesses under Section 161 and 164 of the CrPC with a motive to save some FIR-named accused and made a recommendation to the higher authority of police to take disciplinary action against the said IO. Unfortunately, the supplementary police report dated 15.06.2012 was also found by the learned Magistrate to have been prepared by the IO without recording the statements of the vital witnesses of this case. Looking at the contents of the said police report on top of the informant’s Naraji petition, the learned Magistrate again ordered for further investigation upon making some specific recommendations as to recording of statements of some specific witnesses under Section 161 and 164 of the CrPC. The IO, then, submitted his police report on 10.06.2013. When the informant again filed Naraji petition, the learned Magistrate upon examining the informant on 01.10.2013 under Section 200 of the CrPC adjourned the matter for hearing the Naraji petition and thereby passing necessary order. Ultimately, on 30.06.2014 the learned Magistrate accepted the police report and rejected the Naraji petition, against which criminal revision was filed and the learned Sessions Judge ordered judicial inquiry.

15.          From a minute perusal of the entire order-sheets, and side-by-side the order dated 30.06.2014 by which the police report was accepted and informant’s Naraji Petition was rejected, it appears to us that the learned Magistrate did not consider the observations and recommendations made by his two predecessors as to flouting the orders of recording the statements of the relevant witnesses. Had he minutely gone through the previous orders, he would have either ordered for further investigation or judicial inquiry of the case. The best course of action could have been for him to proceed with judicial inquiry given that the police department has demonstrated unprofessionalism in carrying out the investigation of this case. In the case of Shah Kutubuddin Talukder @ Ruyel Vs. The State, 10 ALR 2017 (2)151, this Court laid down some guidelines for the learned Magistrates who are to deal with the police reports and in paragraph 22(4) this Court has observed:

“Whenever the informant files Naraji petition bringing allegation of serious biasness against the police department substantiating strong grounds thereto and prays for judicial inquiry having come up with definite allegation against specified persons/s, the Judicial Magistrate should, at first opportunity, treat the Naraji petition as a complaint petition instead of sending it to a different department of police for further investigation and, then, if satisfied, either take cognizance directly under Section 190(1)(a) of the CrPC or take recourse to the provisions of Section 202 of the CrPC.”

16.          In the present case, after receiving the police report dated 25.11.2010, when it transpired to the learned Magistrate that the IO having been seriously influenced by the accused persons had submitted the police report, the learned Magistrate could have demonstrated more judicious and prudent performance, had he proceeded for judicial inquiry upon examining the informant under Section 200 of the CrPC. In fact, after examining the informant under Section 200 of the CrPC, the learned Magistrate was duty bound to examine the other witnesses listed in the Naraji application and, thereafter, the learned Magistrate either could have taken cognizance directly under Section 190(1)(a) of the CrPC, if satisfied, or could have proceeded towards judicial inquiry. In the case of Md. Kamruzzaman Vs The State 2017(2) LNJ 19 (relevant Para 31), it was held:

“Before examining the complainant, a judicial Magistrate is always at liberty to send the complaint to the police for investigation under Section 156(3) of the CrPC and thereby not to proceed with the complainant’s complaint under the provisions of Section 200 of the CrPC.”

17.          At this juncture, it would be profitable to look at the provisions of Section 156 of the CrPC, which are reproduced below:

156. (1) Any officer in charge of a police-station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned. (underlined by us)

18.          From a plain reading of the above provisions, it is easily understandable that while sub-Section 1 of Section 156 CrPC empowers the OC of the concerned police station to investigate any cognizable offence without being ordered by the Magistrate, sub-Section 3 of the same, thereafter, seeks to clarify that, by investing the OC with the above power, the Magistrate has not been made powerless to order an investigation in the matter which is mentioned in sub-Section 1 of Section 156 CrPC. It means that whenever a Magistrate is approached by a complainant with a complaint petition or Naraji petition, s/he may order the OC of the concerned police station to treat it as an FIR and, thereby, investigate the same. So, it is vividly clear that Section 156(3) is a provision about investigation of a case; not about further investigation.

19.          Upon skimming through the entire CrPC, it appears to us that Section 173(3B) of the same speaks of further investigation after submission of a police report. Let us look at the said provisions, which are reproduced below:

173(3B) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-Section (1) has been forwarded to the Magistrate and whereupon 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 (1) to (3A) 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 (1).

20.          Although the definition of ‘investigation’ is imprinted in Section 4(L) of the CrPC, nowhere in the four corners of the CrPC the definition of “further investigation” has been provided. The phraseology “further investigation” has been used only in the sub-Section 3B of Section 173 of the CrPC. From its perusal our understanding is that, after submission of the police report, at any point of time before pronouncement of judgment, the same may be carried out by the police. Now, the pertinent question comes up as to whose instance the aforesaid further investigation would be commenced. An officer-in-charge of the concerned police station may suo motu start further investigation. Also, upon being directed by his higher authority or by the Magistrate, the OC of the concerned police station may conduct further investigation. Upon receipt of the police report submitted by the IO, if the Magistrate finds that the investigation has been done by the IO in a perfunctory manner, the Magistrate may direct further investigation without even receiving a ‘Naraji application’ or ‘Objection’ from the informant-side. If the Magistrate receives a Naraji application, s/he may order for further investigation without examining the complainant (informant) under Section 200 of the CrPC treating the same simply as an ‘Objection’ against the police report. 

21.          While, after submission of the police report, the OC of the concerned police station of his own volition or being directed by his higher authority may investigate further in the case under Section 173(3B) of the CrPC and submit the report of the further  investigation (supplementary charge-sheet) before the trial Court through the Public Prosecutor at any point of time before pronouncement of the judgment, however, the Magistrate is competent to pass an order upon the police for further investigation only before acceptance of the police report; s/he cannot direct further investigation after accepting the police report, for, the Magistrate becomes functus officio by transferring the case to the trial Court after accepting the police report. However, the Magistrate may again have occasion to order the police for further investigation in the case, only when s/he is directed by the High Court Division to investigate the case further, as was observed by this Court in the case of Shah Kutubuddin Vs The State 10 ALR 2017(2) 151 (Paragraph-11).

22.          Here, in this case, the Magistrate upon receiving the police report from the first IO, could have ordered for further investigation under Section 173(3B) without looking at the contents of the Naraji application, not to speak of examining the complainant (applicant of the Naraji). By filing a Naraji petition, an applicant does not ifso facto become entitled to get the same registered as a CR case and, thus, the Magistrate is not bound to examine the applicant on oath under Section 200 of the CrPC. However, it does not debar the Magistrate to look at the contents of the Naraji application, which is kept in the record without being numbered as CR case, treating the same as an ‘Objection’ to the police report, as was held in the case of Md. Kamruzzaman Vs The State 2017(2) LNJ 19 (Paragraph 24). The moment the Magistrate would decide to examine the complainant (Naraji applicant) under Section 200 of the CrPC, s/he is bound either to take cognizance under Section 190(1)(a) of the CrPC or to take steps under Section 202 CrPC for judicial inquiry/ investigation, inquiry/investigation by the police, inquiry/investigation by the other person and, after receiving the report of inquiry/investigation from the judicial Magistrate/police/other person, the Magistrate shall either dismiss the complaint under Section 203 of the CrPC or issue process against the accused under Section 204 of the CrPC.

23.          The purpose of carrying out the examination on the provisions of Sections 156(3), 173(3B), 190, 200 and 202 of the CrPC, was to find out the statutory source as to the Magistrate’s power of ordering further investigation. It is a settled law in our jurisdiction that the Magistrate after receiving the police report is empowered to direct further investigation and, by carrying out the above exercise, this Court simply outlined the time/stage at which the Magistrate should order for further investigation.

24.          In this case, the learned Magistrate committed an error by not proceeding further, meaning - by not taking cognizance under Section 190(1)(b) CrPC or by not taking steps under Section 202 CrPC, after examining the informant-complainant on 31.05.2011 under Section 200 CrPC. The same errors were committed by the learned Magistrates when they passed the subsequent orders on 15.06.2012 and 01.10.2013. The learned Magistrates appeared to be oblivious of the fact that they were passing orders for further investigation under Section 173(3B) of the CrPC and, for that purpose, they are not required to consider the Naraji application as complaint petition leading to examination of the complainant. In this sort of situations, the learned Magistrate should treat the Naraji application as an ‘Objection’, as was observed in paragraph 24 of the case of Md. Kamruzzaman Vs The State 2017(2) LNJ 19. All that we wish to record that whenever a Magistrate examines a complainant under Section 200 of the CrPC, the former is required to take recourse to the provisions of either Section 190(1)(a) of the CrPC or proceed towards the provisions of Sections 202, 203 & 204 of the CrPC, as the case may appear to the Magistrate, but the Magistrate cannot resort to the provisions of Sections 156(3) or 173(3B) of the CrPC once the complainant is examined under Section 200 of the CrPC. The above discussions lead us to hold that the order dated 30.06.2014 passed by the Magistrate and, also, the previous orders dated 15.06.2012 and 01.10.2013 were illegal and, therefore, the learned Metropolitan Sessions Judge of Rajshahi has rightly set aside the order dated 30.06.2014 in exercising his revisional power under Sections 435 read with 439 of the CrPC.

25.          Now, we may take up the question no. 2 as to whether the learned Sessions Judge has committed illegality by not hearing the petitioner before us. Admittedly, this petitioner is an FIR-named accused and when the Investigating Officer submitted the police report, he was recommended by the IO to release him from his bond and thereby to clear him off the accusation brought against him by the informant and the aforesaid recommendation was accepted by the Magistrate. Against the above police report although a Naraji petition was filed, after examining the informant-complainant the aforesaid Naraji petition (complaint) was dismissed. The informant-complainant, then, approached the Court of Sessions Judge seeking revision of the Magistrate’s order of acceptance of police report and dismissal of complaint (Naraji) petition.

26.          It is to be noted here that the accused-petitioner also, at this juncture, filed an application before the Magistrate for discharge and it is the claim of the accused-petitioner that the said application was allowed and, accordingly, he was discharged. By referring to the word ‘Ae¨vnwZÕ employed by the IO in the police report as well as by the learned Magistrate in the order dated 30.06.2014, by which the police report was accepted by the Magistrate upon releasing the accused petitioner from his bail bond, the learned Advocate for the accused-petitioner endeavored to make out a case that the accused-petitioner was not merely cleared off the accusation brought against him in the FIR, but he was discharged from the case. However, within the four corners of the CrPC, there is no provision entitling an FIR-named accused to file an application for discharge until cognizance is taken and charge is brought/framed against an accused by the trial Court.

27.          The scheme of our CrPC and the time-honoured practice in our criminal justice administration is that all the inquiries/ investigations will be conducted behind the back of the accused person, and the trial of a criminal case shall be commenced and then continued in the presence of the accused. Before commencing trial, all the steps taken by the Investigating officers and the Magistrate/s are the part of inquiries/investigations, which require to be carried out without notifying the accused. The trial of a criminal case in our system starts from the stage of placing the case by the Public Prosecutor before the trial Court towards framing charge against an accused and if an accused is discharged at the stage of commencement of trial under Sections 241A/265C of the CrPC and, against the said order of discharge, if the informant/ complainant/State seeks revision under Sections 435 read with Section 439 of the CrPC, in that event, the revisional Court in absence of the accused cannot pass any order, for, the said accused having been discharged by the trial Court becomes entitled to a hearing. We, therefore, hold that when any Court passes an order against a person, who has been discharged under Section 241A/265C of the CrPC, terming and treating him as an accused and thereby to commence investigation/further investigation/inquiry against the said discharged person, it would be an ‘order made to the prejudice of the accused’, as enunciated in Section 439(2) of the CrPC.

28.          In this case, the accused was not discharged by the trial Court and, thus, the petitioner’s situation does not come within the purview of sub-Section (2) of Section 439 of the CrPC and therefore there was no illegality in not hearing the accused-petitioner when the revision petition was heard and order for judicial inquiry was passed. More so, when an order of judicial inquiry is passed by any Sessions Judge/Magistrate, it cannot be termed as an order ‘prejudicial’ to the accused, for, the accused-petitioner must not speculate in advance that the outcome of the judicial inquiry shall be against her/him.

29.          There is another aspect of this question no. 2; the impugned order also attracts the provisions of Section 436 read with Section 435 of the CrPC inasmuch as after examining the informant-complainant, her complaint (Naraji) petition was dismissed by the learned Magistrate under Section 203 of the CrPC and the learned Sessions Judge was well empowered under Section 436 of the CrPC to direct further inquiry into the matter without affording any opportunity to the accused-petitioner. The Proviso of this Section makes provision for showing cause to an accused person who has been discharged, but consequent to dismissal of a complaint case by the Magistrate under Section 203 of the CrPC, when the complainant files revision before the Sessions Judge, there is no requirement in the law for affording opportunity of hearing to the accused person.

30.          In order to deal with question no. 3, namely, whether after taking cognizance against the petitioner by the Magistrate, the petitioner is competent to challenge the order passed by the revisional Court without first seeking discharge under Section 265C of the CrPC from the trial Court, it would be useful if we look at the relevant dates of (i) passing the impugned order, (ii) taking cognizance of the offence against the petitioner and (iii) filing of this application before this Court. It transpires from the order sheets that the impugned order was passed on 28.10.2014 by the learned Metropolitan Sessions Judge of Rajshahi and, pursuant to the said order, upon carrying out judicial inquiry, cognizance was taken against the accused-petitioner on 21.04.2015 and, then, on 06.08.2015 the affidavit of this petition was sworn in and, thereafter, this petition was moved before this Court on 19.08.2015. Evidently, the petitioner moved this Court after the learned Magistrate took cognizance of the offence against the petitioner and, thus, at this stage the accused-petitioner had two options, namely, either to wait for sending the case to the trial Court where he would have the opportunity to seek discharge from the charge  brought against him by filing an application under Section 265C of the CrPC or he could have sought quashment of the proceedings against him, instead of questioning the legality and propriety of the impugned order, for, an accused can seek quashment of a criminal case at any stage in a fit and proper case.

31.          The above resolutions on question no.3 lead us to examine and answer the question no. 4, that is, whether in this petition under Section 561A of the CrPC this Court can quash the proceedings so far as it relates to the petitioner despite non-challenging the order of taking cognizance against the petitioner passed by the Magistrate. The learned Advocate for the accused-petitioner puts her best effort to make out  a case of quashment of proceedings by submitting that the accused-petitioner filed this application under Section 561A of the CrPC with an expectation to have the above case quashed on the grounds that while at the 3 (three) separate investigations (after submissions of the police report by the first Investigating Officer, there were another two further investigations) made by the three different Investigating Officers (IO) no primary evidence of commission of offence under Sections 302/114/34 of the Penal Code was found against him, taking cognizance against him by the learned Judicial Magistrate, pursuant to the learned Sessions Judge’s Order (which is primarily challenged in this Court) passed in the revision filed by the informant is illegal and, thus, continuation of the proceedings of the case against the petitioner is an abuse of the process of the Court. It is her submission that the petitioner, in fact, has challenged the proceedings against him under Section 561A of the CrPC and the technical issues as to proper formation of ‘cause title’ or ‘prayer’ in this petition are to be ignored. If this Court, upon conceding the above argument, converts this application from ‘an application for setting aside the impugned order’ into ‘an application for quashment of the proceeding against the petitioner’, it would go against the interest of the accused-petitioner inasmuch as in course of examining these issues, this Court might find that there are sufficient materials for prosecuting the accused-petitioner as, on top of disclosing the offence against the accused-petitioner in the FIR, the judicial inquiry substantiates the prima-facie case against him, then he shall be deprived of filing an application under Section 265C of the CrPC when the case would be transferred to the trial Court.

32.          The net result of the above question-wise discussions is that the learned Sessions Judge has not committed any illegality in directing judicial inquiry of the case, for, firstly, the learned Sessions Judge was not legally bound to dispose of the revision application in presence of the accused-petitioner and the accused-petitioner was not prejudiced by the impugned order and, secondly, after taking cognizance of the offence against the petitioner by the Magistrate, the best course of action for the accused petitioner is to seek discharge at the commencement of the trial and, if the same is not allowed, then, assist the trial Court to complete the trial quickly.

33.          In the result, the Rule is discharged. The order of stay granted earlier by this Court is hereby vacated.

34.          The learned Chief Metropolitan Magistrate of Rajshahi is directed to make the G.R. Case No. 886 of 2010 corresponding to Boalia Model Police Station Case No. 24 dated 14.07.2010, under Sections 302/114/34 of the Penal Code ready for trial within three months from the date of receipt of this Judgment and, thereafter, the trial Court shall take up the trial of this case on priority basis in order to afford this petitioner Dr. Akhtaruzzaman an opportunity to file an application under Section 265C of the CrPC if he so wishes and, if the said application is disposed of against this petitioner, the trial Court shall complete the trial of this case as expeditiously as possible, preferably within 6 (six) months, in accordance with law.

35.          Office is directed to communicate this Judgment and Order to the learned Chief Metropolitan Magistrate of Rajshahi at once.

         Ed.