1. This Rule arises on an application under Sections 397, 401 read with Section 482 of the Code and under Article 227 of the Constitution of India and is directed against order No. 32 dated 23.2.80 passed by Shri S. K. Basu, Judge, 4th Additional Special Court, Calcutta. By the said order, the learned Judge rejected the application filed by the petitioner for quashing the proceeding. The application for quashing was filed on three grounds. In the first place, it was stated that Shri K. D. Chakraborty, Inspector of Police, C. B. I., S. P., Calcutta is the complainant in this case. He is also the investigating officer. It was contended that it is cardinal principle of natural justice that the person complaining must not be the investigating agency. In the instant case, the said principle of natural justice having been violated, there has been miscarriage of justice and has vitiated the entire proceeding and for the matter of that, the entire proceeding should be quashed.
2. The second ground was to the effect that the language of the petition of complaint and the language of the sanction order granted against the accused by the competent authority are verbatim which shows that the sanctioning authority did not apply his mind in granting sanction and the same has been procured by the investigating officer and the draft of the sanction was that of the investigating officer. Thus there being no valid sanction the Court has got no jurisdiction to take cognizance and as such the proceeding should be quashed. The third ground for quashing, as stated in the petition, was that on a look at the petition of complaint it is evident that there is no prima-facie case against the accused and therefore, on that ground also the accused should be discharged and the proceeding should be quashed. The leaned Judge negatived all the contentions raised by the accused and rejected the application. Being aggrieved, the accursed No. 1 has come up to this Court.
3. We shall dispose of the first objection last. With regard to the second objection, the learned Judge finds that the petition of complaint was lodged after the sanction for prosecution was accorded by the competent authority. Therefore, it is quite likely that some of the phrase of the sanction order might be borrowed in the petition of complaint. Simply for that, it cannot be said that there was non application of mind on the part of the authority according sanction. We do not find any reason to differ from the reasoning offered by the learned Judge and do not think that simply because the words and phrases used in the sanction order and in the petition of complaint are almost similar, it can be said that the sanctioning authority did not apply its mind and as such, the Court ought to have held that the sanction was not a valid one and as such, ought not to have taken cognizance.
4. With regard to the third point, the learned Judge, in our opinion, was right to think that it was premature to embark on this investigation at this stage. The cognizance has already been taken and the learned Judge was of opinion that until and unless the prosecution gets opportunity to adduce evidence to establish prima-facie case it cannot be said that the petition of complaint doe not disclose any prima-facie case and as such, the proceeding should be quashed. We have gone through the petition of complaint and simply on perusal of the petition of complaint it cannot be said that the petition of complaint does not disclose any prima-facie case. We, thus, find that there is no substance with regard to this point also.
5. With regard to the first point is has been submitted by Mr. S. D. Banerjee that the very fact that Shri K. D. Chakraborty, Inspector of Police, C.B.I. S.P., Calcutta is the complainant in this case and Shri Chakraborty is also the investigating officer offends against the cardinal principle of natural justice the person complaining must not be the investigating agency. In support of his contention, Mr. Banerji first refers to a Bench decision of this Court, reported in 79 C.W.N. 107 (Rasiklal Bhansali vs. State of West Bengal). In that case, on the basis of a first information report lodged at the Burrabazar police station within the jurisdiction of the Presidency Magistrate at Calcutta an investigation was undertaken by one Roy, Sub-Inspector of Police, who submitted a charge-sheet against the petitioner, Rasiklal under Sections 411 and 414 of the Indian Penal Code and charges under these Sections were duly framed. The proceeding before the Presidency Magistrate was quashed by this Court on the ground that the offence having been allegedly committed outside the territorial jurisdiction of the Presidency Magistrate, the Presidency Magistrate has no jurisdiction to try the offence. Thereafter Roy lodged a complaint at the Watgunj Police Station and without making any further investigation, nor having been authorized to do so by the officer-in-charge of the said police station, incorporated the materials collected by him at the previous investigation in the case diary, and submitted a charge-sheet before the Police Magistrate, Alipore, who framed charge against the petitioner under Sections 411 and 414 of the Indian Penal Code. It was held by this Court "that the complainant, Roy, having himself under taken the investigation without any specific orders from the officer-in-charge of the Watgunj Police Station, the investigation was illegal being in violation of the mandatory provision s of Section 156(1) of the Criminal Procedure Code, 1898". It was further held "although the cognizance taken by the Police Magistrate, Alipore, on the basis of such illegal investigation is not null and void, nor can the charge-sheet submitted pursuant to such illegal investigation be deemed to be without jurisdiction but the improper manner in which the investigation was conduced having been brought to the notice of the court at an early stage, the court, following the ruling of the Supreme Court in
Mr. Banerji draws our attention to paragraph 15 of the decision, where their Lordship have observed as follows -
Investigation should not ordinarily be under taken by an investigating officer who is the complainant. This is not in consonance with fair play and is against the principle of natural justice. Where the Prosecutor is the person entrusted with the collection of evidence, he will certainly proceed of evidence, he will certainly proceed with a biased mind and this may prejudice the accused persons against whom charge-sheet is ultimately submitted.
6. From the facts of the case, as disclosed earlier, it is seen that Their Lordships quashed the proceeding no on the ground that the investigating officer and the complainant was the same person, but on other grounds. Mr. Banerji next submits that their Lordships relied on the Supreme Court decision, reported in
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside until the illegality in the investigation can be shown to have brought about a miscarriage of justice.
The Supreme Court has not in the above case laid down any general principle that in no case an investigating officer can be the complainant. Mr. Banerji next refers to another Supreme Court decision reported in
7. In the present case, the investigation was made by Shri Chakraborty and after completion of investigation he filed the petition of complaint on which the learned Judge, Special Court, took cognizance. No illegality in the matter of investigation has been pointed out on behalf of the accused. A Special Court can take cognizance only when written complaint is filed before the Court. Simply because the investigating officer has filed the written complaint it cannot be said that there has been any illegality. The fact remains that cognizance has been taken by the Judge, Special Court on the complaint filed by the investigating officer. The only point hat awaits decision is whether such cognizance has been wrongly taken. A similar point arose for decision in the case reported in 1979 (1) C. H. N. 116 (Md. Muktar Alam Vs. The State). My learned brother Monoj Kumar Mukherjee, J., after considering the Bench decision reported in 79 CWN 107 and Supreme Court decisions reported in
(a) that a proceeding instituted on a charge-sheet submitted on the basis of an investigation conducted by an officer who himself is the complainant is not violative of any mandatory provision of law nor is the same a nullity.
(b) that an officer who is the complainant should not however ordinarily take up investigation of case instituted upon his complaint as it may prejudice the accused persons against whom charge-sheet is ultimately submitted.
(c) whether prejudice has been caused or not or whether the credibility of the prosecution case has been affected will always be a question of fact and as such will depend upon the facts of the particular case.
8. In the case before His Lordship, the accursed were arrested on October 15, 1976 at Calcutta on the allegation that they were Bangla Desh nationals and came over to India without any valid document and were remaining in India without any authority. A first information report was drawn up by Shri G. P. Chakraborty, Sub-Inspector of Police, Special Branch, Calcutta and on the basis thereof a case was registered by the Entally Police Station. Under orders of the Officer-in-charge of the said Police Station Sri Chakraborty took up the investigation and submitted charge sheet through the Officer-in-charge of Entally Police Station. Considering the nature of the allegations in the case and of the proof required to substantiate the case of the prosecution, it was held that "there was no scope for detailed investigation and therefore it cannot be said that the investigation by the complainant has caused or can cause any prejudice to the accused".
9. In the present case, the investigation was completed by Shri Chakraborty and after completion of investigation, he filed written complaint before the Judge, Special Court, on which the Judge took cognizance. The Officer was not in any way, personally concerned as was in the case reported in AIR 1976 SC 385 (Supra). This being the position, I agree with the proposition of law enunciated by my learned brother in the case referred to above and held that as no prejudice can be said to have been caused to the accused, simply for the fact that the Investigating Officer filed the petition of complaint the cognizance taken by the learned Judge is quite legal and there has been no violation of the principle of natural justice. I therefore find nothing to quash the proceeding.
10. In the result, the application fails and the Rule is discharged. The learned Judge is directed to proceed with the case in accordance with law. Let the records go down immediately.
Monoj Kumar Mukherjee, J.
11. I agree.
