DEBI PROSAD DEY,J. - (1.) The complainant being one of the partners of M/s. New Southern Electric, having its office and place of business at 184A, Shyama Prasad Mukherjee Road, Police Station- Tollygunge, Kolkata-700 026, has filed a petition of complaint against the present petitioner and others on the ground that the present petitioner in collusion with the petitioner nos.2 to 6 broke open the padlock of the said room situated at 184A, Shyama Prasad Mukherjee Road, Police Station- Tollygunge, Kolkata-700 026 and took away one Generator, 50 pieces of ceiling fan valued at Rs.75,000/- without consent and knowledge of the complainant and taking advantage of absence of the complainant from Kolkata. The alleged occurrence took place on 25th March, 2009. The complainant lodged a petition of complaint before the Learned Chief Judicial Magistrate at Alipore on such allegation and the matter was taken up by Learned Judicial Magistrate, 3rd Court at Alipore. After examination of the complainant and his witnesses the learned trial Court directed that the matter should be investigated by the Police under Section 202 of the Code of Criminal Procedure and after having such report from the Police the learned Magistrate issue summon under Section 379/406/34 of the Indian Penal Code against all the petitioners.
(2.) Challenge in this revisional application is the entire complaint case being C. Case No.2538/2009. Learned advocate appearing on behalf of the petitioners submitted that in fact no offence could be made out from such report of the Police and he handed over the certified copy of such report to the Court for perusal. On careful scrutiny of such report it transpires that the Investigating Officer did not find any case under Section 379 of the Indian Penal Code in view of the fact that the petitioner no.1 is the partner of the said firm and that the local witnesses did not support the case of the complainant regarding removal of such properties from the tenanted premises. On the other hand, the tenanted premises stands in the name of the husband of the petitioner no.1. In that view of this case the report of the Police Officer clearly established that Police did not find any case under Section 379 of the Indian Penal Code. It transpires from such report that the Investigating Officer took leave of the Court for further investigation to find out if any case under Section 406 has been made out by such petition of complaint. At the time of hearing learned advocate appearing on behalf of the opposite party no.2 fairly submitted that the petition of complaint is bereft of any ingredients under Section 406 of the Indian Penal Code. Accordingly, such leave of the Investigating Officer to investigate about the case under Section 406 of the Indian Penal Code appears to be misnomer. Learned Magistrate by his order dated 16.12.2009 issued summon against all the petitioners stating, inter alia, that a prima facie case has been made out by such report of the Investigating Officer under Section 379/406/34 of the Indian Penal Code against all the petitioners. It is apparent from such report that no case has been made out under Section 379 of the Indian Penal Code and the Investigating Officer has prayed for leave for further investigation with regard to the offence under Section 406 of the Indian Penal Code.
(3.) Learned Advocate appearing on behalf of the petitioner submitted that the petitioner being one of the partners of such company cannot be roped in a case under Section 379 of the Indian Penal Code and accordingly the petitioner shall not be made liable for any offence under Section 406 of the Indian Penal code. It is further submitted that learned Magistrate did not look into the case of the petitioner at the time of issuance of summons and learned Magistrate did not even consider properly the report of the police officer submitted in terms of the direction of learned Magistrate. Learned Advocate appearing on behalf of the petitioner further contended that learned Magistrate ought to have dismissed the case under Section 203 of the Code of Criminal Procedure since the police officer did not find any materials under Section 379 of Indian Penal Code at the time of investigation and the police officer had only prayed for leave of the Court to further investigate with regard to the offence under Section 406 of the Indian Penal Code. Therefore the entire case ought to be quashed only on the ground that learned Magistrate did not adhere to the report of the police officer at the time of issuance of summons.;