S.K.Sen, J. -
(1.) This Full Bench Reference arises from a revisional application by the petitioner Arun Kumar Roy against an order of the Sub-Divisional Magistrate, Kurseong, dated 12th September, 1960, calling for charge-sheet against the petitioner under Sections 304A and 279 of the Indian Penal Code. On 16th April, 1960, about 8-30 P. M. the petitioner when driving a car is alleged to have knocked down a woman named Rani Tamangni who died on the spot. Sub-Inspector S.K. Roy registered a case, but after investigation he submitted a final report on 6th September, 1960, put up on 8th September 1960, before the Sub-Divisional Magistrate, taking the view that it was an accident, the death of the woman being due to her sudden rush across the road, so that the petitioner was not to blame. The Magistrate called for the case diary, and after perusing the same he took the view that prima facie the petitioner was guilty of rashness and negligence, and so he called for a charge-sheet under Sections 304A and 279 I. P. C. The petitioner moved the Sessions Judge, Darjeeling, against the order. The learned Sessions Judge, relying on the Bombay decision State v. Muralldhar Gobardhan, AIR 1960 Bom. 240, held that the Magistrate had the power to call for a charge-sheet; and he observed that even (if?) it were held that the Magistrate had no such power, still it could be regarded as an irregular way of summoning the accused after taking cognizance, as was held in Narendra Lal Mukherji v. State, AIR 1956 Assam 127(2), and that there was no reason to recommend the quashing of the order of Sub-Divisional Magistrate.
(2.) The petitioner then moved this Court in revision, and Criminal Revision Case No. 1717/60 was a started thereon. There being conflicting unreported decisions of Division Benches or this High Court on the point whether or not a Magistrate has the power to call for a charge sheet when a final report is submitted by the police, the case has been referred to this Bench for decision along with the following question:
"When the police upon investigation has submitted a final report under Section 173 of the Criminal Procedure Code, can a Magistrate direct the police to submit a charge-sheet, or in the alternative, can he take cognizance on the statement of facts contained in the final report and/or the materials contained in the case diary and issue process against the accused?" The two conflicting Division Bench decisions of this Court on the point are Kashem Ali Gomasta v. State, Cri. Revn. No. 226 of 1960, D/- 12-9-1960 (Cal) and Rabindra Nath Chakrabarti v. State, Cri. Revn. Nos. 898 and 921 of 1959 D/-5-1-1961 (Cal.). In Kashem Ali Gomasta's case, Cri. Revn No. 226 of 1960 Dated 12-9-1960 (Cal.), the Magistrate on receiving the final report and a naraji or protest petition against the final report, called for the case diary including the statements under Section 161 of the Criminal Procedure Code, and then took cognizance of offences under Sections 148, 304/149 and 304/109 I. P. C. Mitter and Bhattacharya, JJ. held that the Magistrate is not bound to accept a final report under Section 173 of the Criminal Procedure Code, but he may go through the materials collected by the Police, and if satisfied that there is enough material to put up the case on trial, he may direct the police to submit a charge-sheet; but he cannot take cognizance on the basis of the police diaries and statements under Section 161 of the Code. In Rabindra Nath Chakrabarti's case Cri. Revn. Nos. 898 and 921 of 1959 D/-5-1-1961 (Cal.) the Magistrate on receiving a charge-sheet against 6 persons under Section 147 of the Indian Penal Code only, called for the case diary in view of a naraji or protest petition filed before him, and after perusing the police papers called for a revised charge-sheet under Sections 147, 304/149 and 201 I. P. C. and such a revised charge-sheet was thereafter submitted against 12 persons including the 6 persons originally sent up. The accused persons moved two separate revisional applications against the order of the learned Magistrate; and it was held by K.C. Sen J. and myself that the course adopted by the Magistrate was irregular, and that the Magistrate must take cognizance on the charge-sheet as originally submitted by the police, but on perusing the documents mentioned in Section 173(4) and Section 251A of the Code, he could summon additional accused and adopt the procedure under Section 207A ot the Code, if he thought that a sessions triable case was prima facie made out. In the course of this judgment it was observed that the Magistrate cannot interfere with the discretion of the police under Sections 169 and 170 of the Code and direct submission of a charge-sheet when the police have submitted a final report, or a revised charge-sheet for specified offences when the police have submitted a charge-sheet; and that when a final report is submitted, the , Magistrate may take cognisance of the offence disclosed if any, from the facts which appear in the final report, and summon the accused who, on perusal of the police papers, appear to him to be concerned in the offence.
(3.) In both the cases, it was observed that of there is a final report, and a naraji or protest petition has been filed, it is open to the Magistrate to treat the naraji petition as a petition of complaint, examine the petitioner under Section 200 of the Code, and take cognizance under Section 190 (1)(a) of the Code. But the two Benches took opposite views on the question whether the Magistrate may call for a charge-sheet in such a case, or in the alternative take cognizance on the basis of the final report under Section 190(1)(b) after considering the materials collected by the police. On account of this difference in view, this Full Bench Reference has been made.;