Md. Kamruzzaman Vs. The State and others 2017 (2) LNJ 19

Case No: Criminal Miscellaneous Case No. 19685 of 2013

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Ebadur Rahman Chowdhury, Mr. Monsurul Huq Chowdhury,

Citation: 2017 (2) LNJ 19

Case Year: 2017

Appellant: Md. Kamruzzaman

Respondent: The State and others

Subject: Criminal Law

Delivery Date: 2017-08-15

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

 

Md. Rezaul Haque, J.

And

Muhammad Khurshid Alam Sarkar, J.

Judgment on

09.03.2017

}

}

}

Md. Kamruzzaman

...Petitioner

-Versus-

The State and others

... Opposite-Parties

 

Code of Criminal Procedure (V of 1898)

Sections 154

Section 154 envisages that information regarding cognizable offence must be procured in writing with the signature of the informant and then it be retained in the police station.

. . . (17)

Code of Criminal Procedure (V of 1898)

Section 156

Section 156 states about investigation into cognizable offence; while sub-Section (1) of this Section authorizes a police officer, in-charge of a police station, to investigate any cognizable offence without the order of a Magistrate, sub-Section (3) requires an OC to commence investigation of any cognizable offence if it is ordered by a Magistrate having power of taking cognizance.       . . . (17)

Code of Criminal Procedure (V of 1898)

Sections 169, 170 and 173

Section 169 authorises the IO or the OC to release an accused when no case is made out against the accused upon investigation. Section 170 directs the OC to send the accused to the Magistrate when evidence is sufficient. In Section 173 it is embodied that following completion of the investigation, the OC shall forward a police report to the Magistrate empowered to take cognizance suggesting either for prosecution or release of the accused person/s.                                                           . . . (17)

Code of Criminal Procedure (V of 1898)

Section 156

Method and conditions of taking cognizance;

The designated Magistrates, as categorized in Section 190(1), are empowered to take cognizance of any offence on the basis of 3 types of information. The 1st basis is when a Magistrate receives information through a complaint and 2nd basis is when the Magistrate receives information through police report and the 3rd basis is when the Magistrate receives any information through 3rd party who is not connected with the case or if the Magistrate comes across any incident personally or becomes suspicious of any incident. No trial would begin without cognizance of the offence being taken by a Magistrate. Except the provisions contained in Section 190 of the CrPC, there is no other provision under which a Magistrate may take cognizance. . . . (18)

Code of Criminal Procedure (V of 1898)

Sections 156(3)200,202,203 and 204

Complaint petition under Section 190 of the CrPC; Duty of the Magistrate:

On receipt of a complaint, a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200 of the CrPC. After recording those statements, if in the opinion of the Magistrate, there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203 of the CrPC. On the other hand, if in his opinion, there is sufficient ground for proceeding, he may issue process under Section 204 of the CrPC. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202 of the CrPC, he may order an investigation to be made by the police under Section 156(3) of the CrPC. Whenever any judicial Magistrate decides to take cognizance of any complaint presented by a complainant, he is duty bound to examine the complainant on oath. 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. If the Magistrate does not decide to proceed under Section 200 of the CrPC, he is not bound to examine the complainant.      . . . (19 and 31)

Code of Criminal Procedure (V of 1898)

Section 561A

When revisional order passed by the Sessions Judge may be challenged under Section 561A of the CrPC:

The jurisdiction under Section 561A CrPC should not be readily invoked, as a matter of normal course, for the purpose of examining the correctness, legality or propriety of any finding, sentence or order recorded or passed by any inferior criminal Court which is done in exercise of revisional jurisdiction under Sections 435/439A of the CrPC; meaning that a second revision in the High Court Division in the camouflage of a petition under Section 561A of the CrPC after taking recourse to Section 439A shall not lie. While it is true that the High Court Division would always be loath to entertain an application under Section 561A of the CrPC against the revisional orders passed by the Sessions Judges, however, in an appropriate case where a clear-cut question of law, such as (1) the Magistrate or Sessions Judge has failed to exercise his jurisdiction or exceeded his jurisdiction, (2) the Magistrate or the Secession Judge who passed/recorded the order/judgment was not empowered to deal with or try the case and (3) the case was tried without any evidence as required by the provisions of the Evidence Act, 1872; meaning a case of no evidence, is involved, this Court must not hesitate to exercise its inherent power towards securing ends of justice.                                          . . . (22)

Code of Criminal Procedure (V of 1898)

Sections 156(3)170, 200, 202(2B)

Police Regulations of Bangla, 1943

Regulation 272

What is meant by the words, ‘Charge-sheet’, ‘Final Report’, ‘Naraji petition’ and ‘Objection’ (a) Charge-sheet & Final Report:

In the entire CrPC, only ‘Final report’ has been employed in sub-Section (2B) of Section 202 without telling anything about its definition; apart from it, there was no mentioning of the aforesaid expressions in the CrPC. The Police Regulations of Bengal, 1943 (shortly, PRB), however, incorporates some of the foregoing terminologies containing their meanings. In PRB Regulation 272, a report by the police filed under Section 170 of the CrPC is referred to as a ‘Charge-sheet’ and in PRB Regulation 275, report sent by police under Section 169 of the CrPC has been termed as ‘Final report’.

(b)        Naraji petition:

But the words ‘Naraji petition’ or ‘Objection’ have not found place anywhere in the CrPC or PRB; those have been employed in the judicial pronouncements by the Apex Courts. When an informant or a complainant or any one on behalf of the victim of a criminal offence expresses his or her dissatisfaction/ disagreement about the outcome of an investigation and thereby registers his/her protest to the Magistrate, it is treated as ‘Protest petition’; which is popularly known by all concerns, be it the parties to the case or personnel of investigating agencies or members of the Bar & Bench of our jurisdiction, as ‘Naraji petition’ from the time of introduction of criminal Court system by the British in this part of the world through enactment of the first Code of Criminal Procedure in the year 1861which provided an impetus to the criminal litigants to agitate any procedural illegality before a Court of law. The Apex Courts of this subcontinent, including ours, have been persistently consistent in recognising a Naraji petition as a petition of complaint under Section 200 of the CrPC and, accordingly, although as per the provisions of Section 200 of the CrPC, a Naraji petition may be presented before the Magistrate both orally or in writing, in practice, however, Naraji petitions are always filed in writing stating specific allegations of committing any offence by the known or unknown perpetrator/s.

(c)        Objection:

On the contrary, when a complaint is made by the informant/ complainant to the superior authority of the IO questioning the mode or pattern of investigation adopted by the IO, or raising the allegation of inefficiency or bias against the IO, the said complaint may be taken by the superior authority of police as an ‘Objection’. Secondly, if during investigation the informant/complainant approaches the Magistrate with the allegations of incompetency or corruptibility against the IO without stating the commission of any offence to have been committed by the named/ unnamed persons, the informant /complainant’s move be treated as an ‘Objection’. Thirdly, when a Magistrate, before passing an order on the police report as to its rejection or acceptance, receives an application from the informant/ complainant containing specific allegations of commission of an offence against named persons, but the Magistrate without examining the informant/complainant under Section 200 of the CrPC directs further investigation under Section 156(3) of the CrPC, the said application of the informant/ complainant would be treated as a mere ‘Objection’.  Fourthly, when the informant/complainant files an application protesting the ‘Final report’ submitted by the IO with a recommendation of discharge of the accused, but the Magistrate ignores the request of the IO to discharge the accused and takes cognizance without examining the informant, the informant’s protest petition does not get the status of a ‘Naraji application’ which is to be seen as an ‘Objection’ against the ‘Final report’.                . . . (24)

Code of Criminal Procedure (V of 1898)

Section 173(3)

Whether Magistrate is required to hear the informant when a ‘Final Report’ is submitted-If the IO ignores to notify the informant resulting in the informant’s absence before the Magistrate, the Magistrate is quite competent to notify the informant about the submission of ‘Final report’ by the IO and hear the informant before passing an order on the police report.              . . . (27)

What is to be considered by the Magistrate after receiving the police report:

Notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the materials on record make out a case for the said purpose, for, while the investigation is the exclusive domain of the police, the taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate is to see whether there are sufficient materials for prosecution. The Magistrate should not consider the evidence for conviction at this phase. It is the exclusive domain of the trial Court to assess and weigh the evidence and thereby arrive at appropriate findings. At this stage, however, it is open to the Magistrate, before issuing the process, to record the evidence to find out whether an offence has been prima facie made out. On consideration of the averments made in the complaint and the evidence thus adduced, if it surfaces that an offence has been prima facie made out, then processes would be issued to the O.Ps to take further steps in the matter, for which the Magistrate is not required to record reasons.

                                              . . . (34 and 35)

Mofazzal Hossain Mollah Vs. State 45 DLR (AD) 175; Syed Ehsan Vs. The State at page 80 in 9 ALR 2017(1); Shaban Ali Mia Vs State, 48 DLR 55 and Bhagwant Singh Vs Commissioner of Police (1985) 2 SCC 537 ref.

Mr. Ebadur Rahman Chowdhury, with

Mr. Mohamamd Humayunn Kabir and

Mr. Mohammad Zeshan Hyder, Advocates

. . . For the -Informant-Petitioner

Mr. Monsurul Huq Chowdhury, Advocate

. . . For accused-opposite parties

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Pursuant to an application filed by the informant-petitioner under Section 561A read with Section 436 of the Code of Criminal Procedure, 1898 (CrPC), this Rule was issued calling upon the opposite parties to show cause as to why the Judgment and Order dated 21.11.2012 passed by the learned Sessions Judge, Narsingdi in Criminal Revision no. 183 of 2012 disallowing the Revision and upholding the Order dated 25.07.2012 passed by the learned Chief Judicial Magistrate, Narsingdi in Narsingdi Police Station Case no. 6 dated 03.11.2011 filed under Sections 302/34/109 of the Penal Code, corresponding to G.R. Case no. 689 of 2011 under Sections 302/109/120B/201/34 of the Penal Code, now pending in the Court of Chief Judicial Magistrate, Narsingdi, should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             Succinctly, the facts of the case are that the petitioner lodged an FIR on 06.11.2011 with the Narsingdi Police Station under Sections 302/34/109 of the Penal Code against 14 persons named therein and some unknown persons stating, interalia, that his brother Lokman Hossain was the two-time elected Mayor of Narsingdi Pourashava and had been honored with gold medals twice by the Government as the best Mayor. Lokman Hossain held various leading posts in different organizations and he worked for the welfare of the general people of Narsingdi Pourashava and by working tirelessly he transformed Narsingdi into a developed city. When Lokman Hossain wished to become the General Secretary of the District Awami League, Salauddin Ahmed Bachchu (FIR-named accused no. 1) also desired to grab the post of the General Secretary and campaigned in this regard. But Bachchu failed to gather public support in his favour. Two other leaders, namely, Abdul Matin Sarkar and Tarek Ahmed contested the last Pourashava Election and were defeated by Lokman Hossain by a huge margin. Being jealous of Lokman’s success, the above-stated rivals, in collaboration with others, conspired to kill Lokman. On 01.11.2011 at about 8pm, a party meeting was being held at the temporary office of the Awami League beside the Sadar Road at Narsingdi wherein Lokman Hossain was present. The FIR-named accused nos. 11-14 along with some other unknown persons having entered into the Awami League office, shot Lokman Hossain injuring him seriously, with 5 (five) rounds of bullets and, then, the assailants fled away. Lokman Hossain, at first, was taken to the Narsingdi Sadar Hospital and thereafter to the Dhaka Medical College Hospital and he narrated the occurrence to the informant on the way to the hospitals. Lokman Hossain expired at 10.40pm at the Dhaka Medical College Hospital. The Shahbag Police Station prepared Inquest (Surathal) Report and after holding Post Mortem Examination, the dead body was buried. Thereafter, the FIR was lodged.

3.             During the investigation of the case, 8 accused (including the FIR-named accused no. 11, namely Haji Ashraf Hossain alias Ashraful Sharker) made confessional statements under Section 164 of the CrPC before the learned Magistrate and  statements of the 2 witnesses, namely, Ashikur Rahman alias Ashik and Md. Ibrahim Sarkar Roni, were also recorded under Section 164 of the CrPC by the learned Magistrate. After conclusion of the investigation, the Investigation Officer (IO) submitted charge sheet no. 367 dated 24.06.2012 under Sections 302,109,120B, 201 & 34 of the Penal Code against 12 (twelve) persons which included only 3 FIR-named accused and recommended non-prosecution of 11 FIR-named accused.

4.             On disagreeing with the charge sheet submitted by the police, the informant filed a Naraji petition on 24.07.2012 before the learned Chief Judicial Magistrate, Narsingdi. After hearing on the Naraji petition, the learned Magistrate by order dated 25.07.2012 rejected the same and accepted the charge sheet. Against that order, the informant filed Criminal Revision no. 183 of 2012, and it was disallowed by the Judgment and Order dated 21.11.2012 passed by the learned Sessions Judge, Narsingdi. Lastly, the petitioner moved before this Court and obtained the present Rule with an order of stay on the proceedings of the lower Court case.

5.             Mr. Ebadur Rahman Chowdhury (shortly, ER Chowdhury), the learned Advocate appearing for the petitioner, refers to the petition of complaint and, side-by-side, the provisions of Section 200 of the CrPC and submits that the learned Magistrate’s Judgment and Order dated 25.07.2012, which was affirmed by the Judgment and Order dated 21.11.2012 by the learned Sessions Judge, Narsingdi suffers from legal infirmity inasmuch as while the Naraji petition evidently is registered as CR case no. 561 of 2012 by the cognizance-taking Court without raising any question as to whether the Naraji petition is worthy of treating as a fresh complaint, the learned Magistrate was statutorily duty bound to examine the informant and witnesses who were present before him.

6.             He then takes us through Chapter XIV of the CrPC, which consists of Sections 154 to 176, and submits that the police, after being formally informed about commission of cognizable offence through the FIR under Section 154 of the CrPC, started investigation under Section 156 of the CrPC and, accordingly, the IO was under an obligation to reduce into writing the statements of the persons who are acquainted with the facts and circumstances of the case. The learned Advocate for the petitioner contends that the evidence of the victim’s wife and close acquaintances, who were previously informed about the conspiracy by the victim, are very much relevant in this case and they were ready and willing to make statements before the IO regarding the conspiracy against the victim but, as Mr. ER Chowdhury alleges, the IO purposefully refrained from recording the statements of the said vital witnesses in carrying out his duty under Section 161 of the CrPC. Moreover, in reducing the statements of the persons who have been examined by the IO under Section 161 of the CrPC into writing, the IO deliberately omitted recording of the crucial part of the statements of the statement-makers, Mr. ER Chowdhury continues to allege. He strenuously submits that although the FIR disclosed 14 names with specific allegations and the confessional statements, made by as many as 8 persons and 2 statements made by 2 witnesses, clearly show the complicity of the accused-opposite party nos. 2-12 in the commission of the offence of criminal conspiracy, non-forwarding of the said accused in the police report is sheer reflection of the whimsicality of the decision of the IO. After pointing out the above allegations against the IO, the learned Advocate for the petitioner contends that the investigation has been conducted by the IO at the behest of the interested party and submits that the police report ought to have been rejected by the learned Magistrate at the time of taking cognizance.

7.             He further submits that both the Courts below, the learned Magistrate who took cognizance and the learned Sessions Judge who affirmed the order of the learned Magistrate, committed errors of law in getting themselves engaged to examine and assess the statements made under Section 164 of the CrPC in an attempt to find out the contradictions of the statement-makers at the investigation stage, for, as per the learned Advocate for the petitioner, it is the duty of the trial Court to examine and assess the evidence made by the statement-makers.

8.             The learned Advocate for the petitioner takes us through the confessional statements made by the accused Haji Ashraf Hossain and contends that anyone with ordinary prudence would take a view that there are sufficient elements to prosecute those persons. To this end, Mr. ER Chowdhury submits that the learned Magistrate and the learned Sessions Judge committed a serious illegality by holding that since the accused Haji Ashraf’s statements as to the complicity of the aforesaid 11 persons in committing the offence of conspiracy are based on hearsay, their names have not been forwarded in the police report. He professes that at the phase of investigation, the Magistrate would merely see whether there are sufficient materials, which includes the FIR, statements under Sections 161 & 164 of the CrPC, information noted in the case-diary, medical certificate, post-mortem report and seizure list, to prosecute any person; not for convicting any person.

9.             Mr. ER Chowdhury points out that the learned Magistrate did not bother to look at the case-diary of the IO of this case and it is his contention that had the learned Magistrate gone through the case-diary, his decision might have been different with regard to the accused who have been dropped from the charge-sheet by the IO.

10.         He strenuously submits that this case, being a sensational one, having gained overwhelming publicity in the electronic and print media of the country, the learned Magistrate ought to have applied his mind judiciously in taking cognizance and, also, the learned Sessions Judge was under a duty to meticulously revise the order passed by the leaned Magistrate, instead of mechanically agreeing with the learned Magistrate’s order.  

11.         By terming the police report to be seriously biased as well as the judgments of the Courts below to be erroneous, the learned Advocate for the petitioner humbly seeks interference of this Court and, thus, prays for making the Rule absolute.

12.         Mr. Monsurul Huq Chowdhury (shortly, MH Chowdhury), the learned Advocate appearing for the opposite party nos. 2-12, at the very outset takes us through the Naraji petition filed by the petitioner and submits that this is merely an ‘objection’ against a police report and the learned Magistrate is not bound to treat the same as a fresh complaint and thereby to examine the petitioner and his witnesses under Section 200 of the CrPC. He submits that within the four corners of the CrPC there is no existence of the words ‘Charge Sheet’, ‘Final Report’ and ‘Naraji Petition’; these are invented through the judicial pronouncements of the Apex Courts of this sub-continent. Likewise, the word ‘objection’ is also an invention of the higher judiciary, he submits. By drawing our attention to the date of submission of the police report, which is 01.07.2012, together with the date of filing of the Naraji petition, which is 24.07.2012, and side-by-side the Order no. 114 dated 25.07.2012 of the learned Magistrate, he submits that after submission of the police report, the learned Magistrate in the above order no. 114 recorded that charge sheet was yet to be accepted; since the charge sheet was not accepted by the learned Magistrate, the petitioner was not competent to file Naraji petition at that point of time, Mr. MH Chowdhury argues. It is the submission of the learned Advocate for the opposite parties that until and unless an order is passed on the police report by the Magistrate, either accepting the same or rejecting it, the complainant is not entitled to file a Naraji petition in the form of a fresh complaint and if the complainant files a Naraji petition before accepting the charge sheet, it would simply be treated as an objection. In support of his above submissions, the learned Advocate refers to the case of Shaban Ali Mia Vs State 48 DLR 55.

13.         He then takes us through the confessional statements of all the 8 persons made under Section 164 of the CrPC and submits that no one except Haji Asraful made any statement about the alleged conspiracy to have been made by the opposite party nos. 2-12. By taking us through the confessional statements of Haji Asraful, he submits that the accused Asraful was not present at the alleged meeting held on 13.10.2011 at Motijheel office of the accused-opposite party no.2 and, therefore, merely on the basis of the accused-Asraful’s hearsay-statements there is no reason to implicate these 11 persons in this case.

14.         He lastly questions the jurisdiction of this Court in entertaining the present application under Section 561A of the CrPC by submitting that the petitioner in fact has attempted to file a second revisional application before this Court under the camouflage of making prayer for exercising inherent jurisdiction of this Court. He takes us through the Judgment and Order passed by the learned Sessions Judge and submits that the learned Sessions Judge thoroughly dealt with the points raised by the petitioner in his revisional application and he, upon hearing both the sides at length, passed his order with sound reasoning and findings and, according to Mr. MH Chowdhury, this petition is nothing but a sheer abuse of the process of the Court.

15.         By making the above submissions, the learned Advocate for the opposite party nos. 2-12 prays for discharging the Rule.

16.         After hearing the learned Advocates for the both sides, perusing the application together with its annexure, reading through the decisions placed before us, it was felt that in order to arrive at a proper and just decision, a brief scrutiny of the powers of police in investigating a criminal case, as set out in the CrPC, is required on top of examining the duties of a judicial Magistrate in dealing with an application filed by the informant against the police report, be it termed as a Naraji application or objection. Upon skimming through the full index of the CrPC, we find that the provisions of Part V & Part VI of the CrPC may assist us in resolving the issues raised in this case.

17.         Part V of the CrPC consists of only one chapter namely, Chapter XIV comprising Sections 154 to 176 and its contents are with regard to information about the commission of a cognizable offence to the police, their power of investigation and the procedure to be adopted by them. Section 154 envisages that information regarding cognizable offence must be procured in writing with the signature of the informant and then it be retained in the police station. Section 155 lays down the provisions on information and investigation of non-cognizable offence; Sub-section (2) of this Section, prohibits a police officer from investigating a non-cognizable case. Section 156 states about investigation into cognizable offence; while sub-Section (1) of this Section authorizes a police officer, in-charge of a police station, to investigate any cognizable offence without the order of a Magistrate, sub-Section (3) requires an OC to commence investigation of any cognizable offence if it is ordered by a Magistrate having power of taking cognizance. In cases where a cognizable offence is suspected to have been committed, the Officer-in-Charge (OC) of a police station, after sending a report to the Magistrate, is entitled under Section 157 to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b), of the proviso to section 157 (1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of a report to be sent, under Section 157. Section 159 gives power to a Magistrate, on receiving a report under Section 157, either to direct an investigation, by himself or through another Magistrate subordinate to him, or to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the provisions of the CrPC. Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Section 161 provides that any person supposed to be acquainted with the facts and circumstances of the case may be examined by the IO and his/her statements may be reduced into writing. Section 164 stipulates the conditions of recording the statement of any witness or confession of an accused. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches during an investigation, in the circumstances, mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the OC about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV.  Section 169 authorises the IO or the OC to release an accused when no case is made out against the accused upon investigation. Section 170 directs the OC to send the accused to the Magistrate when evidence is sufficient. Section 171 provides that no complainant or witness shall be required to accompany police-officer on his way to the Court nor they shall be subjected to restraint; however, recusants may be forwarded in custody. Section 172 contains the provisions as to maintaining a diary of proceedings in investigation by the IO. In Section 173 it is embodied that following completion of the investigation, the OC shall forward a police report to the Magistrate empowered to take cognizance suggesting either for prosecution or release of the accused person/s. Sections 174 to 176 are not necessary for the purpose of this case and, hence, their discussions are ignored.

18.         Part VI of the CrPC, which consists of Chapters XV to XXX, deals with proceedings in prosecution; meaning that when a police report under Section 173 containing the information and materials is submitted, then the provisions of Part VI show the paths to proceed with the case. Out of a handful provisions of this Part, Section 190 under Chapter XV, Sections 200 to 203 under Chapter XVI and Sections 204 to 205D under Chapter XVII are relevant for our case in hand. Section 190 sets out the method and conditions of taking cognizance to be followed by different types of Magistrates. From the perusal of the provision of Section 190 of the CrPC, we find that the designated Magistrates, as categorized in Section 190(1), are empowered to take cognizance of any offence on the basis of 3 types of information. The 1st basis is when a Magistrate receives information through a complaint and 2nd basis is when the Magistrate receives information through police report and the 3rd basis is when the Magistrate receives any information through 3rd party who is not connected with the case or if the Magistrate comes across any incident personally or becomes suspicious of any incident. Having examined the material provisions in the CrPC relating to trials, it is interesting to note that no trial would begin without cognizance of the offence being taken by a Magistrate. Except the provisions contained in Section 190 of the CrPC, there is no other provision under which a Magistrate may take cognizance. Section 200 incorporates the provisions for examination of complainant and witnesses present before a Magistrate, Section 201 lays down the procedures to be adopted by the Magistrate if he is not competent to take cognizance, Section 202 empowers the Magistrate to postpone issuance of process and thereby enquire into the case himself or by others, Section 203 speaks about dismissal of complaint, Section 204 provides commencement of proceedings before Magistrate by issuing process, Section 205C directs the Magistrate to transfer of case to the Court of Sessions when, after commencement of proceedings before the Magistrate, it transpires that the offence is exclusively triable  by the Court of Sessions and Section 205D sets out the procedure to be followed when there is a complaint case and police investigation in respect of the same offence.

19.         In our plain way of perusing the above provisions of the CrPC, Sections 156, 173, 190, 200, 203 & 204 placed under Chapters XIV to XVII of the CrPC appear to us to be relevant for adjudication of the issues raised in the present case. Our humble understanding of the above-mentioned Sections is that on receipt of a complaint, a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200 of the CrPC. After recording those statements, if in the opinion of the Magistrate, there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203 of the CrPC. On the other hand, if in his opinion, there is sufficient ground for proceeding, he may issue process under Section 204 of the CrPC. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202 of the CrPC, he may order an investigation to be made by the police under Section 156(3) of the CrPC. When such an order is made, the police will have to investigate the matter and submit a report under Section 173 of the CrPC. On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) of the CrPC and issue process straightway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173 of the CrPC will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police, there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the IO because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. In the alternative, the Magistrate, on receiving the police report, may, without issuing process or dropping the proceeding, proceed to act under Section 200 of the CrPC by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or whether process should be issued.

20.         Now, let us revert to the facts of the case in order to see whether the police has carried out its functions of investigation in consonance with the above provisions and, also, whether the learned Magistrate dealt with the police report and Naraji petition in line with the relevant provisions of the CrPC.

21.         It appears to us that this case being a cognizable one, its information was received by the concerned police station in writing with the signature of the informant under Section 154 of the CrPC and, then, under Section 156 of the CrPC police having started investigation, recorded statements of a number of persons under Section 161 of the CrPC. The informant-petitioner’s grievance, to some extent, is based on this provision. According to the informant-petitioner, there has been a non-compliance of this provision by the IO, for, firstly, despite the fact that the wife of the victim clearly comes within the ambit of the expression “person supposed to be acquainted” with the accusation of conspiracy stated in the FIR, she has not been examined towards reducing her statements into writing; secondly, the IO has not accurately recorded the statements of the persons who have already been examined under Section 161of the CrPC. Thereafter, 8 persons have made confessional statements and 2 witnesses have given their statements under Section 164 of the CrPC and it is the case of the informant-petitioner that there is ample information in the above statements, both in confessional and witnessing, about the offence of conspiracy made by the persons dropped from the charge sheet. In this case, the OC of the Narsingdi Sadar Police Station upon completion of the investigation prepared a police report on 24.06.2012 and then submitted the same on 01.07.2012 before the concerned Magistrate under Section 173 of the CrPC recommending prosecution for only 3 FIR-named accused together with some other persons not named in the FIR and, at the same time, requesting for releasing the 11 (eleven) FIR-named accused. After receiving the police report in this case on 01.07.2012, the Magistrate took cognizance on 25.07.2012 as per the provisions of Section 190(1)(b) of the CrPC. Prior to the above order dated 25.07.2012, the informant-petitioner filed a petition before the learned Magistrate on 24.07.2012 which was registered as a case under Section 200 of the CrPC being CR case no. 561 of 2012 contending that in addition to the commission of offence contained in the charge-sheet, there is sufficient evidence as to the commission of offence of conspiracy against the 11 (eleven) accused who have been recommended by the police for release from the accusation brought against them in the FIR. The learned Magistrate upon considering the police report in tandem with the Naraji petition took the cognizance of the offences against the persons named in the relevant column of the police report upon rejecting the Naraji petition which was filed with a prayer for taking cognizance against the FIR-named accused and the said rejection order later on being affirmed by the learned Session Judge in a revision case, this Court is now shouldered with the duty of examining the issues raised by the parties as to whether the informant-petitioner’s petition is to be regarded as a ‘Naraji application’ or as a mere ‘Objection’ to the concerned Magistrate against the performance of the IO, whether the learned Magistrate was under an obligation to treat the said application as a complaint under Section 200 of the CrPC and, thereby, whether the learned Magistrate was duty bound to examine the complainant and other witnesses present before him. In other words, the overall single point that emerges for adjudication by this Court is whether the learned Magistrate and the learned Sessions Judge committed any illegality in dealing with the petitioner’s Naraji application.

22.         Since the power and competency of this Court as to entertaining this application has been questioned by the learned Advocate for the opposite party, we are duty bound to deal with the said issue, at first, before embarking upon examination of the legality of the orders passed by the learned Magistrate and the learned Sessions Judge. It is fairly settled that the jurisdiction under Section 561A CrPC should not be readily invoked, as a matter of normal course, for the purpose of examining the correctness, legality or propriety of any finding, sentence or order recorded or passed by any inferior criminal Court which is done in exercise of revisional jurisdiction under Sections 435/439A of the CrPC; meaning that a second revision in the High Court Division in the camouflage of a petition under Section 561A of the CrPC after taking recourse to Section 439A shall not lie, as held in the case of Shafiqur Rahman Vs NI Chowdhury 35 DLR (AD) 127. While it is true that the High Court Division would always be loath to entertain an application under Section 561A of the CrPC against the revisional orders passed by the Sessions Judges, however, in an appropriate case where a clear-cut question of law, such as (1) the Magistrate or Sessions Judge has failed to exercise his jurisdiction or exceeded his jurisdiction, (2) the Magistrate or the Secession Judge who passed/recorded the order/judgment was not empowered to deal with or try the case and (3) the case was tried without any evidence as required by the provisions of the Evidence Act, 1872; meaning a case of no evidence, is involved, this Court must not hesitate to exercise its inherent power towards securing ends of justice, as propounded in the case of Mofazzal Hossain Mollah Vs State 45 DLR (AD) 175. A thorough examination of the scope of the provisions of Section 561A of the CrPC has been carried out recently, upon revisiting most of the celebrated cases of our jurisdiction and that of this sub-continent, by a Division Bench of this Court in the case of Syed Ehsan Vs the State reported at page 80 in 9 ALR 2017(1), wherein it is reiterated that the inherent power of the High Court Division ‘is to be exercised very sparingly with circumspection and in the rarest of the rare cases when exceptional features are brought to the notice of the Court’ (Para 15).

23.         In this case, the informant-petitioner’s grievance is that the complainant and other witnesses having not been examined by the learned Magistrate, provisions of Section 200 of the CrPC have been nakedly violated and, thus, it appears to us that clearly a question of law is involved in this case, which requires to be thoroughly examined by this Court by exercising its inherent power in the backdrop of non-availability of any other prescribed forum.

24.         The above resolution, in favour of entertaining this petition, leads us to take up examination of the substantive contentious issues raised by the parties of this case. The first contention canvassed on behalf of the opposite parties is that there was no ‘Naraji application’ before the learned Magistrate and the application filed by the informant may, at best, be regarded as an ‘Objection’ to the investigation as the same was filed by the informant before accepting the ‘Charge-sheet’ & the ‘Final report’ and, therefore, the Magistrate was not duty bound to examine the informant and in support of their contention the learned Advocate for the opposite parties has referred to the decision reported in 48 DLR at page 55. For the purpose of adjudication of the above contention, we should be acquainted, at first, with the words used hereinbefore, namely Charge-sheet, Final report, Naraji petition and Objection. From the examination of Sections 154 to 176 of the CrPC, occurring in Chapter XIV, and also Sections 190 & 200-205D of the CrPC, incorporated in Chapter XV, it is seen that out of the above-mentioned terminologies, only ‘Final report’ has been employed in sub-Section (2B) of Section 202 without telling anything about its definition; apart from it, there was no mentioning of the aforesaid expressions in the CrPC. The Police Regulations of Bengal, 1943 (shortly, PRB), however, incorporates some of the foregoing terminologies containing their meanings. In PRB Regulation 272, a report by the police filed under Section 170 of the CrPC is referred to as a ‘Charge-sheet’ and in PRB Regulation 275, report sent by police under Section 169 of the CrPC has been termed as ‘Final report’. But the words ‘Naraji petition’ or ‘Objection’ have not found place anywhere in the CrPC or PRB; those have been employed in the judicial pronouncements by the Apex Courts. When an informant or a complainant or any one on behalf of the victim of a criminal offence expresses his or her dissatisfaction/ disagreement about the outcome of an investigation and thereby registers his/her protest to the Magistrate, it is treated as ‘Protest petition’; which is popularly known by all concerns, be it the parties to the case or personnel of investigating agencies or members of the Bar & Bench of our jurisdiction, as ‘Naraji petition’ from the time of introduction of criminal Court system by the British in this part of the world through enactment of the first Code of Criminal Procedure in the year 1861which provided an impetus to the criminal litigants to agitate any procedural illegality before a Court of law. The Apex Courts of this subcontinent, including ours, have been persistently consistent in recognising a Naraji petition as a petition of complaint under Section 200 of the CrPC and, accordingly, although as per the provisions of Section 200 of the CrPC, a Naraji petition may be presented before the Magistrate both orally or in writing, in practice, however, Naraji petitions are always filed in writing stating specific allegations of committing any offence by the known or unknown perpetrator/s.

25.         On the contrary, when a complaint is made by the informant/complainant to the superior authority of the IO questioning the mode or pattern of investigation adopted by the IO, or raising the allegation of inefficiency or bias against the IO, the said complaint may be taken by the superior authority of police as an ‘Objection’. Secondly, if during investigation the informant/complainant approaches the Magistrate with the allegations of incompetency or corruptibility against the IO without stating the commission of any offence to have been committed by the named/unnamed persons, the informant/complainant’s move be treated as an ‘Objection’. Thirdly, when a Magistrate, before passing an order on the police report as to its rejection or acceptance, receives an application from the informant/complainant containing specific allegations of commission of an offence against named persons, but the Magistrate without examining the informant/complainant under Section 200 of the CrPC directs further investigation under Section 156(3) of the CrPC, the said application of the informant/ complainant would be treated as a mere ‘Objection’.  Fourthly, when the informant/ complainant files an application protesting the ‘Final report’ submitted by the IO with a recommendation of discharge of the accused, but the Magistrate ignores the request of the IO to discharge the accused and takes cognizance without examining the informant, the informant’s protest petition does not get the status of a ‘Naraji application’ which is to be seen as an ‘Objection’ against the ‘Final report’, as observed by their Lordships in the case of Shaban Ali Mia Vs State 48 DLR 55 referred to us by the opposite parties.

26.         Having outlined an apparent workable definition with overall average features of the ‘Naraji petition’ and that of ‘Objection,’ we may now comfortably endeavour to tally those aspects with the informant’s petition filed before the Magistrate for resolution of the contention as to whether it is to be regarded as ‘Naraji Petition’ or ‘Objection’.

27.         The petition in the present case was filed by the informant on 24.07.2012 protesting the dropping off the 11 (eleven) FIR-named accused in the police report submitted by the IO. So, evidently the protest petition was not filed during the time of investigation, as it transpires from the date of the above two events that the petition was filed after completion of the investigation by the IO and, furthermore, from a minute perusal of the averments of the petition, it is apparent that there are specific allegations of commission of offence against the specified persons, albeit the petition contains the dissatisfaction of the informant about non-recording of the statements of the relevant witnesses by the IO. Thus, clearly the informant’s protest petition being featured with the requisite criterion of a Naraji petition, it must be seen as a Naraji petition and, in no way, can it be termed as an ‘Objection’ only for the reason that it contains informant’s dissatisfaction about the mode of recording statements under Section 161 of the CrPC or on the plea that it was prematurely filed before the Magistrate. In fact, the informant filed the petition before the Magistrate at an appropriate time, for, he filed it only after being informed by the IO under Section 173(1)(b) about the outcome of the investigation. The police report in the present case being a ‘Final report’ in respect of a large number of FIR-named accused, the Magistrate afforded an opportunity to the informant to place his contentions and argument before the Court and, accordingly, after receiving the police report the Magistrate refrained from passing an order as to accepting or rejecting it without first hearing the informant. Even if the IO ignores to notify the informant resulting in the informant’s absence before the Magistrate, the Magistrate is quite competent to notify the informant about the submission of ‘Final report’ by the IO and hear the informant before passing an order on the police report.

28.         The Indian Supreme Court in Bhagwant Singh Vs Commissioner of Police (1985) 2 SCC 537 stressed on the desirability of intimation being given to the informant when a report made under Section 173(3) of the CrPC (similar to Section 173(2) of the Indian CrPC) is under consideration. The Court held as follows: (SCC p. 542, para 4)

“There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.”

29.         Thus, while on the one hand, a petition, which merely contains the allegations of some procedural illegalities to have been committed by the IO in recording the statements under Section 161 of the CrPC or in conducting TI parade or in collecting/failing to collect the prosecution materials by the IO cannot be regarded as a Naraji petition, on the other hand, a protest petition, which contains specific allegations against the known perpetrators, does not lose its status as Naraji petition only because of filing the same before passing an order on the police report by the Magistrate, provided that the petition does not seek to drop the name of any accused whose name has been shown in column 2 of the report.

30.         Having resolved that the informant’s petition is a Naraji petition and, thereby, the same is to be eyed by the Magistrate as a complaint under Section 200 of the CrPC, we may now take up examination of the issue as to whether the learned Magistrate committed any illegality by not examining the complainant.

31.         From perusal and examination of Section 200 of the CrPC, which we carried out hereinbefore, it is our simple understanding that whenever any judicial Magistrate decides to take cognizance of any complaint presented by a complainant, he is duty bound to examine the complainant on oath. However, 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. In other words, if the Magistrate does not decide to proceed under Section 200 of the CrPC, he is not bound to examine the complainant. Now, the pertinent question comes up for consideration as to the meaning of ‘Magistrate’s decision’ to proceed under Section 200 of the CrPC. It is easy to understand the ‘Magistrate’s decision’ as to his unwillingness to proceed under the provisions of Section 200 of the CrPC if he sends the complaint to the police before examining the complainant. However, there would be a different resolution, if the Magistrate sends the complaint to the police after registering it as a CR case, which is not the scenario in our case.

32.         In this case, the complaint has been registered as a CR case and the Magistrate upon hearing the complainant without examining him on oath rejected his petition. The crucial point, therefore, emerges in this case for our consideration as to whether by registering the informant’s complaint as a CR case, the Magistrate triggered the button to enter into the ship of Section 200 of the CrPC. Once the Magistrate decides to act under the provisions of Section 200 of the CrPC, it shall be illegal for him not to comply with the mandatory provision of examining the complainant on oath in view of employing the word “shall” in Section 200 of the CrPC by the Legislature. After examining the complainant under Section 200 of the CrPC, the Magistrate is competent either (1) to take cognizance straight-way as per the provision of Section 190 (1)(a) of the CrPC, or (2) to take recourse to Sections 202 to 205C under Chapters XVI & XVII, but once the Magistrate examines the complainant, he cannot send the complaint to the police for its investigation under Section 156(3) of the CrPC. The Magistrate, after examining the complainant and considering the materials before him, is also equally competent to dismiss the complaint by briefly recording the reasons for dismissal under Section 203 of the CrPC either straight-way or after exhausting the procedures laid down in Section 202 of the CrPC.

33.         In the present case, the learned Magistrate, having registered the informant’s complaint as CR case, clearly had taken a decision to take recourse to the provisions of Section 200 of the CrPC and, thus, he was under an obligation to examine the informant and the witnesses listed therein and, only thereafter, he would have been in a position either to take cognizance or to dismiss the complaint. By not examining the complainant, thus, we hold that the learned Magistrate committed an illegality and the case is liable to be remanded to the Magistrate so as to enable the learned Magistrate to pass his order after examining the informant and the witnesses named therein.

34.         However, from the perusal of the Magistrate’s order, it appears to us that the learned Magistrate did not look at the contents/notes of the case-diary submitted by the IO along with the police report. Under the requirements of Section 173(3A)(a) of the CrPC, a diary of proceedings maintained by the IO having been forwarded along with the police report forms part of the police report. When an investigation culminates into a final report as contemplated under Section 173(3) of CrPC, then the competent Court enjoins a duty, within its authority sanctioned by law, to scrupulously scrutinise the final report and the accompaniments, which usually includes the case-diary, by applying its judicial mind and take a decision either to accept or reject the final report. Following quashment of the impugned order by this Court, thus, the learned Magistrate is competent to look at those aspects of the police report which he had missed previously. Therefore, before examining the informant and witnesses, if the learned Magistrate decides to take cognizance against the opposite party nos. 2-11under Section 190(1)(b) of the CrPC upon perusing the case-diary, there is no need to examine the informant and the witnesses. It is already spelt out hereinbefore that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the materials on record make out a case for the said purpose, for, while the investigation is the exclusive domain of the police, the taking of cognizance of the offence is an area exclusively within the domain of a Magistrate.

35.         In course of considering the contents of the case-diary and examining the informant and the witnesses, perusing the statements under Sections 161 & 164 of the CrPC, the Magistrate shall be at liberty either to take cognizance or to dismiss the same without being influenced by any comments/ observations made hereinbefore/after in this judgment. However, in dismissing the complaint under Section 203 of the CrPC, the learned Magistrate must restrain himself from examining and weighing the evidence, for, it is not the province of the Magistrate to sift or appreciate the evidence at that stage with reference to the materials on record and come to the conclusion that no prima facie case is made out for proceeding further in the matter. At this stage, the Magistrate is to see whether there are sufficient materials for prosecution. The Magistrate should not consider the evidence for conviction at this phase. It is the exclusive domain of the trial Court to assess and weigh the evidence and thereby arrive at appropriate findings. At this stage, however, it is open to the Magistrate, before issuing the process, to record the evidence to find out whether an offence has been prima facie made out. On consideration of the averments made in the complaint and the evidence thus adduced, if it surfaces that an offence has been prima facie made out, then processes would be issued to the O.Ps to take further steps in the matter, for which the Magistrate is not required to record reasons.

36.         Accordingly, the order dated 21.11.2012 passed by the learned Sessions Judge, Narsingdi in Criminal Revision No. 183 of 2012 and the order dated 25.07.2012 passed by the learned Chief Judicial Magistrate, Narsingdi in Narsingdi Police Station Case No. 6 dated 03.11.2011 corresponding to GR Case No. 689 of 2011 under Sections 302/34/109 of the Penal Code, both, are hereby quashed.

37.         The learned Chief Judicial Magistrate, Narsingdi is directed to take necessary steps for examining the petitioner and witnesses as per Section 200 of the CrPC and thereby pass an appropriate order after examining the petitioner and witnesses, if he does not decide to take cognizance against the opposite party nos. 2-11 on the basis of the police report, which include case-diary together with other information & materials.

38.         In the result, the Rule is made absolute without any order as to costs.

Office is directed to communicate this order at once.

Ed.

 



Criminal Miscellaneous Case No. 19685 of 2013