Md. Lablu Khan Vs. Abdus Sattar Shaikh & another [4 LNJ (2015) 338]

Case No: Criminal Appeal No. 1587of 1997

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Citation: 4 LNJ (2015) 338

Case Year: 2015

Appellant: Md. Lablu Khan

Respondent: Abdus Sattar Shaikh & another

Delivery Date: 2014-04-21

 
HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Md. Ziaul Karim, J.
And
Ashish Ranjan Das, J.


Judgment on
21.04.2014
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Md. Lablu Khan
...Informant-appellant
-Versus-
Abdus Sattar Shaikh and another
. . .Respondents
 
Code of Criminal Procedure (V of 1898)
Section 200
Without examining the complainant on oath, as required under section 200 of the Code, it cannot be determined as to whether there is a prima facie case against the accused-persons or not and without examining the complainant as required under section 200 of the Code the complaint petition cannot be thrown out in limine. . . .(13)

Code of Criminal Procedure (V of 1898)
Section 200
The Narajee is to be treated as fresh complaint, the Court can take cognizance of an offence if, in his opinion, there is sufficient ground for proceedings and discharge the accused where no sufficient ground exists. But in the instant case, the informant categorically narrated the manner of occurrence aswellas the manner of raising arms towards him and the Police during investigation in its report merely stated that there is no eye witness to the occurrence. But the informant in his narajee petition categorically stated that the Police without visiting the place of occurrence without examining the eye witnesses most illegally submitted a perfunctory final report. We have meticulously examined the FIR, narajee petition, impugned order, Police report along with other materials on record and we find that there are sufficient grounds for proceeding against the accused in the instant case. Moreso, it appears that the learned Judge of the Tribunal without appreciating the narajee petition and without any speaking order accepted the Police report. So in our view the same cannot be sustained. Therefore, we hold that the appeal having merit succeeds. . . .(14 and 19)

Bhagwant Singh Vs. Commissioner of Police (1985)2 SCC 537=AIR 1985 SC 1285; Union Public Service Commission Vs. Papaiah (1997 Cr. L. J. 4636(SC); Nurul Huq Vs. Fazal Ahamed and 3 others, 48 DLR 327; Nur Mohammad Mandal Vs. Abul Hossain and 3 others, 28 DLR 389; (4 Crl. L.J. 217( DB) Cal.); (AIR 1917 Cal. 671= 18 Crl. L.J. 626(DB) and (AIR 1952 Pat. 200 + AIR 1923 All 544 + AIR 1927 Lah. 145.) ref.  

No one appears,
…. For Informant-appellant.

No one appears,
… Accused-respondent no.1

Mrs. Sakila Rowshan, D.A.G. with
Mrs. Sharmina Haque, A.A.G. and
Mr. Md. Showardhi, A.A.G.
. . .For the  State-respondent no.2.
 
Criminal Appeal No. 1587of 1997.
 
JUDGMENT
Syed Md. Ziaul Karim, J:

By this appeal, the informant-appellant has challenged the legality and propriety of the order dated 23-06-1997 passed by the learned Judge of Senior Tribunal, Khulna (briefly as Judge) in Special Tribunal Case no. 107 of 1997 arising out of Dacope P.S. Case no.05 dated 23-07-1996 under sections 19A and (f) of the Arms Act discharging the accused-respondent without taking cognizance and not considering the narajee petition filed by the informant.

Facts in brief, are that on 23-07-1995 the appellant as informant lodged a first inform-ation report against the accused respondent alleging that on the night following on 22-07-1995 at 3:00 p.m. he was engaged in the fish shrimp of Md. Saiful Kabir as watcher at about 3:00 p.m. he found a man catching shrimp in the said gher and the informant went near him and focus torched light and he identified the accused as Abdus Sattar who raised Pipe gun for to hang fire. Thereafter the accused was caught red-handed with the help of the other locals. Then he handed over the accused with arms with the Dacope Police Station and lodged the instant case.

The Police after investigation submitted final report in favour of the accused. Against which the informant filed the narajee petition.

Eventually the case was taken up by the learned Judge of Tribunal for trial who by the impugned order dated 23-06-1997 accepted the Police report and discharged the accused by rejecting the narajee petition.
Feeling aggrieved the informant preferred the instant appeal.

No one appears on behalf of the appellant to support the appeal. In view of the facts this is an old appeal of 1997 we are inclined to take it up for disposal on merit considering the materials on record.

No one appears on behalf of the accused-respondent no.1 to oppose the appeal.

The learned Deputy Attorney General appearing for the State-respondent no.2 supports the appeal and submits that the learned Judge of the Tribunal without appreciating narajee petition and without passing any order to that effect accepted the Police report and discharged the accused which cannot be sustained in the eye of law.

In order to appreciate her submissions we have gone through the record and given our anxious consideration to her submissions.

On going to the materials on record, it transpires that after investigation of the case, the Police submitted final report, the same was received by the learned Magistrate on 03-05-1997. On 20-05-1997 the informant filed Narajee petition against the said report. Afterwards the learned Magistrate referred the case record to the Tribunal wherein on 15-06-1997, the informant furnished the statements of five witnesses by swearing respective affidavits. It is a matter of great regret that the Tribunal did not at all take any notice regarding Narajee petition, which is not only non application of judicial mind but also a cause of injustice to the parties.

A three-Judge Bench of the Supreme Court of India in Bhagwant Singh Vs. Commissioner of Police (1985)2 SCC 537=AIR 1985 SC 1285 opined that while dealing with a final report submitted by the Police stating that no offence appears to have been committed, the Magistrate can adopt one of the three courses, i.e. (1) he may accept the report and drop the proceedings or (2)  he may disagree with the report and taking the view that there is sufficient ground for proceedings further, take cognizance of the offence and issue Process or (3) he may direct for further investigation to be made by the Police under sub-section 3 of Section 156 of the Code of Criminal Procedure (briefly as Code). While adopting the first course (accepting the final report and dropping the proceedings), 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. In its subsequent decision in Union Public Service Commission Vs. Papaiah (1997 Cr. L. J. 4636(SC), the Court, as per the law laid down in Bhagwant Singh’s case observed that the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is ″must ″.

It has been held in the case of Nurul Huq vs. Fazal Ahamed and 3 others reported in 48 DLR 327 that if an accused discharged from prosecution or on a final report that means that the accused has been discharged from custody not discharged from the case and subsequent prosecution of the accused is permissible. It was further held in the said case that Narajee petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a Narajee petition by complying with the requirements of the law.

In the instant case the Tribunal did not take notice regarding narajee petition. It has been held in the case of Nur Mohammad Mandal vs. Abul Hossain and 3 others reported in 28 DLR 389 that the complainant is to be examined on oath under Section 200 of the Code. We also hold that without examining the complainant on oath, as required under section 200 of the Code, it cannot be determined as to whether there is a prima facie case against the accused-persons or not and without examining the complainant as required under section 200 of the Code the complaint petition cannot be thrown out in limine.

By the above principle we find that the Narajee is to be treated as fresh complaint, the Court can take cognizance of an offence if, in his opinion, there is sufficient ground for proceedings (27 Cal. 985 (DB), and discharge the accused where no sufficient ground exists.

There can be said to be no sufficient grounds in the following cases for issue of process.
  1. where the complaint is made on information and not an personal knowledge. In such cases the Court should satisfy itself on inquiry that there is a case for the issue of process (4 Crl. L.J. 217( DB) Cal.)
  2. Where the allegations made in the complaint are not substantiated by the statement on oath (AIR 1917 Cal. 671= 18 Crl. L.J. 626(DB).
  3. Where the allegations disclose a dispute purely of a Civil nature (AIR 1952 Pat. 200 + AIR 1923 All 544 + AIR 1927 Lah. 145.)
The following are not sufficient grounds for refusing issue of process.
  1. Where a prima facie case is, made out but in the Magistrate’s opinion there is no chance of conviction and no useful purpose will be served by the inquiry.
  2. Avoidance of religious ill feeling
  3. The fact that the offence is cognizable by the Police in the first instance.
  4. The fact that the Magistrate thinks that it is unlikely that the proceeding will result in a conviction, though the fact that another person accused upon the same facts for the same offence has been acquitted may properly be taken into consideration in determination whether upon the materials before the Magistrate there is sufficient ground for proceedings.
  5. The fact that one of the accused was a member of the higher services in the land who was sworn to do justice.
The aforesaid general principles are squarely applicable in the cases instituted under the Special law i.e. the Arms Act.

We also find that the above essential ingredients are absolutely absent in the case in our hand.

It is pertinent to point out that the informant categorically narrated the manner of occurrence aswellas the manner of raising arms towards him and the Police during investigation in its report merely stated that there is no eye witness to the occurrence. But the informant in his narajee petition categorically stated that the Police without visiting the place of occurrence without examining the eye witnesses most illegally submitted a perfunctory final report. We have meticulously examined the FIR, narajee petition, impugned order, Police report along with other materials on record and we find that there are sufficient grounds for proceeding against the accused in the instant case. Moreso it appears that the learned Judge of the Tribunal without appreciating the narajee petition and without any speaking order accepted the Police report. So in our view the same cannot be sustained. Therefore, we hold that the appeal having merit succeeds.

In view of foregoing narrative the appeal is allowed. The learned Judge of the Tribunal is directed to dispose of the narajee petition filed by the informant in accordance with law and in the light of observations made above.

The Office is directed to send down the record at once.

Ed.