- (1.) This writ petition is directed against an order dated December 6, 2013 passed by the Chief Judicial Magistrate, Barasat (hereafter the CJM) whereby he discharged the respondents 6 and 7 from G.R. 2116 of 2013, arising out of Baguiati Police Station FIR No. 258/13 dated June 1, 2013 under sections 447/323/354/506, Indian Penal Code (hereafter the IPC), upon considering a supplementary charge-sheet filed by the respondent 5, the investigating officer. ISSUES: The two preliminary related issues that arise for a decision here are, (i) whether a writ petition that is directed against an order passed by a judicial magistrate in exercise of judicial functions, would be maintainable and (ii) whether in view of the remedies available to the petitioner under the provisions of the Code of Criminal Procedure (hereafter the Cr.P.C.), the writ petition should at all be entertained. FACTS
(2.) A written complaint dated May 31, 2013 was lodged by the petitioner before the Officer-in-Charge, Baguiati Police Station giving rise to the aforesaid FIR. Bare perusal of the complaint would reveal an allegation that the respondents 6 and 7, who are attached to the State Police Force, by exerting influence as police officers and threatening to implicate the petitioner in false cases had forced her to sign a development agreement for benefiting the respondent 8 and in course thereof assaulted and molested her. On surrender before the CJM, the respondents 6 to 8 were taken in custody and subsequently released on bail. The FIR was investigated by the respondent 5, and on completion of investigation police report under section 173(2) of the Cr.P.C. was filed before the CJM against the respondents 6 to 8 vide charge-sheet bearing No. 334/13 for commission of offences under sections 447/325/354/506/34, IPC. By an order dated September 9, 2013, the CJM took cognizance of the offence pertaining to GR 2116/2013. However, all on a sudden, November 30, 2013 to be precise, the respondent 5 filed a second charge-sheet under section 173 Cr.P.C. (bearing No. 524/13) before the CJM seeking to implicate only the respondent 8 and purporting to discharge respondents 6 and 7 of the alleged offence. The second charge-sheet records, inter alia, as follows: "As per order of my superior and from the statement of available witnesses and other relevant facts collected during the subsequent phase of investigation that a prima facie charge as revealed against R. Vinod Kumar and Papindar Singh Randhawa no way stands as such no prima facie charge has yet been established so that both the accd. persons can be sent up for trial. Therefore, under the present circumstances just to avoiding miscarriage of justice may happened. I do not have any other option but to sent only Debobrata Baidya as shown accused of this case for trial and consequently, I do not sent the accd. R. Vinod Kumar and Papinder Singh Randhawa up for trial as no prima facie charge established against them. They may kindly be discharged from the case." The order dated December 6, 2013 passed by the CJM, which is impugned in this writ petition, is reproduced below: "Accd: (1) R. Vinod Kumar is on C.B. Accd: (1) Papinder Singh (2) Debabrata Baidya are on.....Bail, to 13.02.2014 for appearance and copy. Later - Received Supplementary CS - No. 524/13 dt. 30.11.2013 u/s. - 447/323/354/506 I.P.C. Considering all the materials as sent by I/O u/s. - 173(5) Cr.P.C. Let it be kept with the record. Seen the supplementary CS. Hd. Ld. A.P.P. who has submitted that 02 (two) accd: persons namely (1) Binod Kr. Nayer @ R. Vinod Kumar and (2) Papinder Singh Randhawa may be discharged from this case. Considered. Let the above named two accused persons be discharged. *** ARGUMENTS FOR THE PETITIONER
(3.) On the question of maintainability of the writ petition, Mr. Kishore Datta, learned advocate (now senior advocate) argued that (a) this is a case of improper exercise of power of investigation, since (b) section 173 of the Cr.P.C. does not permit investigation after submission of a charge-sheet, unless the relevant magistrate permits so in terms of sub-section (8) thereof, as a result which (c) the present complainant has become a victim covered by Article 21 of the Constitution, and (d) that since a writ of certiorari could be issued if an inferior Court acts without or in excess of jurisdiction, (e) the revisional and inherent powers of the High Court under sections 401 and 482, Cr.P.C. respectively cannot be construed as a fetter for exercise of Article 226 jurisdiction by the High Court, He, accordingly, submitted that the High Court under Article 226 can most certainly intervene in a matter of this kind. 3.1. Reliance was placed by Mr. Datta on T.T. Antony vs. State of Kerala, 2001 6 SCC 181 . There, two FIRs had been lodged. Upon whether there can be a 2nd FIR, the Court citing Emperor vs. Khwaja Nazir Ahmad, 1945 AIR(PC) 18 , held: "Where the police transgresses its statutory power of investigation the High Court under section 482 Cr.P.C. or Article 226/227 of the Constitution and this Court in an appropriate case can interdict the investigation to prevent abuse of the process of the T.T. Antony vs. State of Kerala, 2001 6 SCC 181 . There, two FIRs had been lodged. Upon whether there can be a 2nd FIR, the Court citing Emperor vs. Khwaja Nazir Ahmad, 1945 AIR(PC) 18 , held: or otherwise to secure the ends of justice." 3.2. Referring to section 173(8), Cr.P.C. providing the power to the police to conduct 'further investigation', the following passage from T.T. Antony was cited: "The scheme of Cr.P.C. is that an officer in charge of a police station has to commence investigation as provided in section 156 or 157 of Cr.P.C. ... and forward his report to the Magistrate concerned under section 173(2) of Cr.P.C. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of section 173 Cr.P.C. 3.3. It was further contended, relying on Babubhai vs. State of Gujarat, 2010 12 SCC 254 , that if the investigation is tainted, then the charge-sheet is inconsequential. 3.4. Relying on Dwarka Nath vs. Income-Tax Officer, 1966 AIR(SC) 81 , Mr. Datta urged that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act and hence improper exercise of jurisdiction by the magistrate would be covered and the order may be quashed in exercise of writ powers. 3.5. Mr. Datta further submitted that the Fundamental Rights (here Art. 21) are at the highest pedestal and even the High Court cannot ask the litigant to approach under section 482, Cr.P.C. when an approach under Article 226 is made. 3.6. The decision of this Court in K.L. (P.) Ltd. and Ors. vs. The Municipal Commissioners of Kamarhati Municipality & Ors, 1985 CrLJ 26 was then cited for the proposition that though the Cr.P.C. provided alternate reliefs, it would defeat the ends of justice to dispose of the writ petition in favour of the respondents herein, given the facts and circumstances. 3.7. Nirmal Singh Kahlon v. State of Punjab, 2009 1 SCC 441 was the decision placed next, where the Supreme Court observed that even the victim has a right to fair trial. According to Mr. Datta, "right to fair trial" has now been extended to "right to fair investigation"; earlier, it was in the context of the accused, but now it has been extended ('equally applicable') to the victim as well. 3.8. Referring to the supplementary charge-sheet, Mr. Datta argued that a clean chit was given by the respondent 5 to two accused persons i.e. respondents 6 and 7, although earlier a charge-sheet (bearing No. 334/13) was filed against them and the CJM had taken cognizance of the offence. Relying on the decision in Hardeep Singh vs. State of Punjab, 2009 16 SCC 785 , it was vehemently contended that the respondent 5 in his capacity as investigating officer had transgressed his limits by giving a clean chit, which is the power of a Court or a judicial magistrate and since the subsequent charge-sheet is not in consonance with law, the CJM committed gross errors of jurisdiction in discharging respondents 6 and 7 from the case. 3.9. Umaji Keshao Meshram vs. Radhikabai, 1986 Supp1 SCC 401 , was then referred to for the proposition that jurisdiction conferred by Articles 226-227 cannot be curtailed by ordinary legislation. 3.10. The "Conclusions" in State of West Bengal vs. The Committee for Protection of Democratic Rights, West Bengal & Ors., 2010 3 SCC 571 , were also referred to by Mr. Datta on the scope of fundamental rights in the Constitutional scheme. 3.11. The Constitution Bench decision in Naresh Shridhar Mirajkar vs. State of Maharashtra, 1967 AIR(SC) 1 , was sought to be distinguished by Mr. Datta. He submitted that the Supreme Court was seized of the question as to whether an order passed by the Bombay High Court in exercise of ordinary original civil jurisdiction could be challenged by a writ petition under Article 32 of the Constitution by a stranger to the proceeding on the ground that his right guaranteed by Article 19 was invaded by the impugned order .The Supreme Court considered the High Court as a superior Court and not as an inferior Court and held that it had no supervisory jurisdiction over the High Court, which itself had the power to issue certiorari and power to issue such writ includes the power to supervise. In paragraph 53 of the report, the Supreme Court approved that certiorari is generally granted when a Court has acted without or in excess of jurisdiction and that in paragraphs 108 and 111 it was accepted that certiorari always lies to Courts. It was, accordingly, submitted that no principle of law was laid down in Naresh Shridhar Mirajkar , which would stand as an impediment to entertain this writ petition where relief is sought for under Article 226 of the Constitution against an order of the CJM passed without jurisdiction. 3.12. Reference was lastly made to Surya Dev Rai vs. Ram Chander Rai, 2003 AIR(SC) 3044 , in support of the contention that even a judicial order of a Civil Court was held to be amenable to the certiorari jurisdiction of a High Court if the same was passed without jurisdiction. 3.13. Mr. Datta concluded by submitting that this being a fit case for interference, the same may be entertained to prevent gross miscarriage of justice. ARGUMENTS FOR THE STATE;