TARUN KUMAR GUPTA, J. - (1.) THE defacto complainant of G. R. Case No.1413 of 2009 arising out of Hare Street P. S. Case No.325 of 2009 has filed this application under Section 482 of the Code of Criminal Procedure challenging the order dated 18th October, 2012 passed by learned Chief Metropolitan Magistrate, Calcutta.
(2.) THE petitioner's case, in short, is that the petitioner company used to run a firm of tax consultancy in a portion of the second floor of the premises of Nicco house, 2, Hare Street, Kolkata ­ 700001. An incident of fire occurred in said building on 27th of March, 2009 at about 2 P. M. Fire brigade personnel came with fire brigade engine and controlled the fire around 9 P. M. Some employees of the petitioner company left the office on that day after 9 P. M. when the fire was under control. After said incident the police personnel put an escort around the building and that personnels of the petitioner company were allowed to enter the building only on 31st of March, 2009 at about 1 P. M. They found that the office premises was lying in dismantled condition and that furnitures and articles were lying destroyed. As Nicco Corporation Ltd. was trying to evict the petitioner company from that building their employees taking advantage of said fire committed said mischief. Over said incident the petitioner lodged a written complaint dated 31st of March, 2009 to the O. C. Hare Street P. S. but without any result. On next day at about 4 P. M. when the petitioner's representative was in the office one Kartick Kumar Chatterjee with 3 / 4 employees of Nicco Corporation had been to the petitioner's office and threatened them with dire consequences if the complaint filed in the Hare Street P. S. was not withdrawn. The petitioner sent letters to the higher officers of the police for inaction on the part of the Hare Street P. S. but without any result. The petitioner obtained information under R.T. I. Act from the West Bengal Fire Services wherefrom it came out that fire service personnel did not demolish the office premises or any furniture of the office of the petitioner company situated in the second floor of the Nicco House at the time of fire fighting. The petitioner in view of the inaction on the part of the police lodged a complaint dated 17.04.2008 before the court of learned CMM for referring the complaint to the O. C. Hare Street P. S. under Section 156 (3) of the Code of Criminal Procedure for starting specific complaint under Section 34 / 120B/ 427/ 436/ 440/ 447/ 448/ 506 I. P. C. against the personnel of Nicco Corporation named therein. The Court forwarded the same to the O. C. Hare Street P. S. for starting investigation treating the same as FIR which resulted initiation of Hare Street P.S. case No.325 of 2009. After investigation police submitted final report mentioning the incident as a mistake of fact. The petitioner filed a 'Naraji' petition and the court directed reinvestigation vide order dated 1st of February, 2012 without accepting said final report. The court directed to get the matter investigated by an officer other than earlier investigating officer by an order dated 1st of February, 2012. However, after further investigation again police filed final report on the ground of want of evidence. Against said final report the petitioner again filed an application dated 24.05.2012 under Section 173 (8) of the Code of Criminal Procedure for reinvestigation by C. B. I. By the order impugned learned Trial Court rejected said prayer for reinvestigation by C. B. I. as said court had no power for direction of reinvestigation by C. B. I. However, learned court took cognizance of the offence under Section 190 of the Code of Criminal Procedure and transferred the case to the court of learned M. M., third court for enquiry by examination of the complainant and witnesses, if any, under Section 200 of the Code of Criminal Procedure directing the defacto complainant to appear before said court on 17th February, 2012 by the order impugned. Being aggrieved this application has been filed under Section 482 of the Code of Criminal Procedure. Mr. Tapas Dutta, learned counsel appearing for the petitioner defacto complainant, submits that the owners of the Nicco House were very influential persons having close relation with ministers of State and Central Government, bureaucrats and senior officers of both the Governments. As a result, the police in the Hare Street P. S. filed final report in the case of the petitioner. It is his further submission that though at the instance of fire service a specific case under Section 11J / 11L of West Bengal Fire Services Act read with Section 285 I. P. C. was started against owners of M/s. Nicco House and occupiers of M/s. Nicco House UCO Alliance Credit Ltd, but a charge sheet was filed in that case showing all 19 accused persons of said case as absconding though most of them were attending the office regularly. He further submits that the reply of the RTI given by fire services authority showed that due to fire fighting there was no need of demolition of any portion of petitioner's office situated at second floor of said house. According to him, the first I. O. submitted final report with the comments "mistake of facts" while the subsequent I. O. submitted final report with the comments "want of evidence" and that this goes to show that both of them submitted said report without proper investigation. According to him, the police could not properly investigate the case due to said influence of the accused persons and accordingly there should have been an order of investigation by C. B. I.
(3.) MR . Dutta in this connection refers para 7 of the case law reported in 1988 (Supp) SCC 482 (Kashmeri Devi vs. Delhi Administration and another) to impress upon this court that a magistrate has a power for directing investigation by C. B. I. In support of his contention he also refers another case law reported in (2011) 13 SCC 337 (Disha vs. State of Gujarat and others). He next submits that the petitioner lodged a specific complaint dated 12th of March, 2012 to the O. C. Hare Street P.S. alleging that though forensic examination of said building after said breaking out of fire was yet to be started but on 20th of March, 2009 at about 12.30 P. M. 4/ 5 labourers with the iron bar and axe came down from the second floor of said building and went out through the main gate wherein police were posted and that in spite of pointing out said fact to the police present there, no action was taken by the police. According to him, this also showed that the police was in league with the owner of the Nicco House and his associates being the accused persons of the complaint filed by the petitioner. He submits that unless there is an investigation by C.B .I. the truth cannot be unearthed and as such the order impugned should be set aside by directing the C. B. I. investigation in the matter.;