(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:
(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.
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