R.K.BAG, J. - (1.) THIS criminal revision is preferred by the petitioners challenging the judgement and order dated 28.07.2008 passed by the learned Additional Sessions Judge, Fast Track, 6th Court, Malda in Criminal Revision No. 09 of 2007 arising out of order dated 30.12.06 passed by the learned Chief Judicial Magistrate, Malda in G. R. Case No. 688/2004, by which learned Judge of the court below directed learned Chief Judicial Magistrate, Malda to consider the application filed by the Opposite Party No. 2 against acceptance of the final report submitted by the Investigating Officer in the light of the observations made in the body of the judgement.
(2.) FOR proper appreciation of the submissions made by learned counsels of both parties it is necessary to delineate the background of passing the order challenged by way of criminal revision before the learned Additional Sessions Judge, Fast Track, 6th Court, Malda. The Opposite Party No.2 being the de facto complainant made allegation on the basis of which Ratua Police Station Case No. 53 of 2004 dated 04.04.2004 under Sections 379/326/307/34 of the Indian Penal Code was started against the present petitioners. On completion of investigation the police submitted final report on 29.07.2004 as sufficient evidence could not be collected for prosecuting the present petitioners in the said criminal case. However, the Investigating Officer made prayer before the learned Chief Judicial Magistrate, Malda for prosecuting the Opposite Party No.2 on the allegation of committing offence under Section 211 of the Indian Penal Code on the ground that the Opposite Party No.2 procured forged documents in order to prosecute the present petitioners by initiating Ratua Police Station Case No. 53 of 2004 dated 04.04.2004. By passing order on 04.08.2004 learned Chief Judicial Magistrate, Malda accepted the final report submitted by the Investigating Officer without giving the Opposite Party No.2 any opportunity of hearing and also proceeded under Section 204 of the Code of Criminal Procedure and issued warrant of arrest against the Opposite Party No.2. The Opposite Party No.2 was arrested on the strength of warrant of arrest issued by the learned Chief Judicial Magistrate, Malda and was released on bail on 09.08.2004. The application filed by the Opposite Party No.2 challenging the order of acceptance of the final report and praying for further investigation of the case was taken up for hearing by learned Chief Judicial Magistrate, Malda on 23.09.2004. By passing order on 23.09.2004 learned Chief Judicial Magistrate, Malda observed that notice was not given to the Opposite Party No.2 before acceptance of the final report submitted by the Investigating Officer due to mistake on the part of the officer of the court, but next date was fixed for hearing of the application submitted by the Opposite Party No.2 for obtaining explanation from the concerned officer of the court. Ultimately, the application filed by the Opposite Party No.2 against acceptance of the final report submitted by the Investigating Officer was taken up for hearing by learned Chief Judicial Magistrate, Malda on 30.12.2006. On 30.12.2006 learned Chief Judicial Magistrate, Malda rejected the application filed by the Opposite Party No.2 on the ground that he has already accepted the final report and discharged the accused persons and started proceeding against the Opposite Party No.2 under Section 211 of the Indian Penal Code and as such the said order cannot be reviewed or recalled for want of jurisdiction on the part of learned Chief Judicial Magistrate, Malda. The Opposite Party No.2 challenged the said order dated 30.12.2006 passed by learned Chief Judicial Magistrate, Malda before the court of learned Additional Sessions Judge, Fast Track, 6th Court, Malda disposed of the said criminal revision no. 09 of 2007 on 28.07.2008. Learned Additional Sessions Judge, Fast Track, 6th Court, Malda had set aside the order passed by learned Chief Judicial Magistrate and directed learned Chief Judicial Magistrate, Malda to consider the application filed by the Opposite Party No.2 against final report submitted by the Investigating Officer in the light of the observation made in the body of the judgement. It is pertinent to point out that learned Additional Sessions Judge, Fast Track, 6th Court, Malda has observed in the body of the judgement that the order of further investigation and submission of report under Section 173 (8) of the Code of Criminal Procedure would not have amounted to review of the earlier order passed by learned Chief Judicial Magistrate, Malda. It is also observed by learned Additional Sessions Judge, Fast Track, 6th Court, Malda that learned Chief Judicial Magistrate, Malda should not have accepted the final report submitted by the Investigating Officer without giving opportunity of hearing to the Opposite Party No.2. The judgement and order passed by learned Additional Sessions Judge, Fast Track, 6th Court, Malda in criminal revision no. 09 of 2007 has been challenged by the petitioners before this court in the instant criminal revision.
(3.) WITH the above factual matrix, Mr. Sovanlal Hazra, learned counsel appearing on behalf of the petitioners submits that the power and authority to give direction for further investigation and submission of police report under Section 173(8) of the Code of Criminal Procedure cannot be exercised by learned Magistrate on the basis of an application filed by the Opposite Party No.2 after discharge of the petitioners from the criminal case on acceptance of the final report. Mr. Hazra, also contends that the issue of not giving opportunity of hearing to the Opposite Party No.2 before acceptance of the final report submitted by the Investigating Officer cannot be taken into consideration by learned Magistrate after long lapse of more than 2 (two) years from the date of acceptance of the final report and after initiating proceeding against the Opposite Party No.2 under Section 211 of the Indian Penal Code. According to Mr. Hazra, the court cannot pass dual order of reviving Ratua Police Station Case No. 53 of 2004 dated 04.04.2004 and issuance of warrant of arrest against the Opposite Party no.2 giving rise to a separate proceeding under Section 211 of the Indian Penal Code. The last submission made by Mr. Hazra is that Opposite Party No.2 cannot ventilate his grievances against the orders dated 04.08.2004 and 23.09.2004 passed by learned Chief Judicial Magistrate, Malda when those orders were not challenged by the Opposite Party No.2 before higher forum within the prescribed period of limitation. Mr. Hazra has relied on the decision of the Supreme Court of India in the case of "Reeta Nag V. State of West Bengal & Ors", reported in (2009) 9 SCC 129 in support of his above contentions.;