- (1.) The point involved in this revisional application is whether during pendency of the magisterial action over a complaint filed by the opposite party as complainant praying for direction for sending the petition of complaint to Officer-in-Charge of a police station for causing investigation under section 156(3) of Cr. PC; a second complaint over same set of facts and allegations filed by same complainant is maintainable.
(2.) The facts giving rise to the revisional application as it appears from the revisional application and its annexures is that, the opposite party filed a petition of complaint in the Court of the learned Chief Metropolitan Magistrate (in short CMM), Calcutta which was registered as Case No. C/4941/01 and the opposite party complainant prayed for sending the complaint to the Deputy Commissioner of Police, Detective Department, Lalbazar, Calcutta for causing investigation under section 156(3) of Cr. PC treating the complaint as FIR. It appears that in the said complaint which is annexure P-4 the opposite party complainant mentioned that previously on 27.8.01 she lodged written complaint before the Deputy Commissioner of Police, Detective Department, Lalbazar, Calcutta but the police did not take any action and did not register any FIR. It is evident that the learned CMM by his order dated 26.9.01 after perusing the complaint called for a report from the D.C.(D.D.), Lalbazar as to steps, if any taken on the complaint lodged by the petitioner which was received in his office on 27.8.01. It is clear that the learned CMM on that date did not pass any direction for sending the complaint to the concerned police station for investigation under section 156(3) of Cr. PC. Learned Magistrate fixed 21.11.01 for the report. The order of the learned Magistrate dated 21.11.01 which is annexure P-6 reveals that the learned Magistrate received the report of Investigating Officer (I.O.). I.O. in the report which is annexure P-5 mentioned that the said matter is related to company affair regulated under Companies Act, 1956. It is a civil issue and, therefore, no police action is possible on the basis of the application filed by the complainant before the office of the Deputy Commissioner, Detective Department on 27.8.01. The learned Magistrate by order dated 21.11.01 directed the I.O. to appear before him on 6.12.01. The order of the learned Magistrate dated 6.12.01 reveals that as the police did not take any step for investigation considering the matter relating to company affairs and civil issue, he passed order for informing the de facto complainant as to whether the de facto complainant wants direction under section 156(3) of Cr. PC or wants to initiate complaint as defined under section 2(d) of Cr. PC and fixed 22.1.02 for order. By order dated 22.1.02 learned Magistrate directed issue of fresh notice upon the informant. Next date was 12.2.02 and on that date a petition was filed for the complainant praying for time and the learned Magistrate granted time till 19.3.02. Thereafter it appears that the learned Magistrate fixed 10.4.02 for further order as the de facto complainant was found absent. It is evident that, in the meantime on 5.12.01 the same opposite party as complainant filed another complaint in same tune like the previous one and again prayed for direction upon Deputy Commissioner of Police, Detective Department for causing investigation in terms of section 156(3) of Cr. PC treating the complaint as FIR. The said complaint was registered as Case No. C-5890/01. The order of learned CMM dated 5.12.01 over the said subsequent complaint reveals that the learned Magistrate after perusing complaint took cognizance and transferred the case to learned Metropolitan Magistrate, 14th Court for disposal. The leaned Metropolitan Magistrate, 14th Court by order dated 21.2.02 issued process under section 418 read with section 120B of the Indian Penal Code (in short IPC) against the petitioners. Challenging the said order the petitioners have preferred the instant revisional application and have prayed for quashing the second complaint being Case No. C-5890/01.
(3.) Mr. Sekhar Basu, learned Senior Advocate appearing for the petitioners contended that on the basis of first complaint of opposite party in connectior with Case No. C/4941/01 the learned CMM by order dated 26.9.01 called for E report from the police authorities and the police authorities submitted that as the matter is concerning company affair and civil in nature they did not think it fit to investigate into the case particularly on the complaint lodged by the de facto complainant at the office of the Deputy Commissioner (Detective Department), Lalbazar on 27.8.01. He contended that provisions of section 157(l)(b) and provisions of section 159 of Cr. PC are important. Section 157 deals with procedure for investigation and sub-section l(b) reveals that if it appears to the Officer-in-Charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. Section 159 prescribes that a Magistrate on receiving such report may direct an investigation or, if he thinks fit at once proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into or otherwise to dispose of the case in the manner provided in the Code.;