Subhasis Dasgupta, J. - (1.) The impugned order dated 15th November, 2018 passed by the learned Judicial Magistrate 1st Additional Court, Basirhat, 24 Parganas North in connection with G.R. Case No. 2263 of 2018 arising out of Haroa Police Station Case No. 291/18 dated 06.06.2018 under Sections 341/325/326/506/34 of the Indian Penal Code rejecting the prayer of petitioner/de facto complainant for further investigation is the subject of challenge in this revisional application under Section 482 of the Code of Criminal Procedure.
(2.) In order to address the issue some crucial facts may be mentioned here as follows:- The FIR named 11(eleven) accused persons were alleged to have wounded victim, Habibar Rahaman, on 05.06.2018 at about 9.30 PM, while he was returning home riding on his motorcycle. The FIR named accused persons thus intending to kill the victim wounded Habibar Rahaman with use of deadly weapons causing multiple injuries on his person. In consequence of such attack, the victim sustained several cut injuries, fracture injuries and other injuries on his vital parts of the body. Finally the accused persons fled away committing theft of Rs.83,000/- from the possession of the victim Habibar Rahaman, who had a garments shop, styled as 'Nahar Bastralaya' at Haroa Market place. On the basis of complaint lodged by de facto complaint, Hazi Abu Bakkar Molla, police took up investigation and ultimately submitted chargesheet under Section 341/325/ 326/506/34 of the Indian Penal Code against 9 (nine) accused persons out of 11 accused persons, with a prayer for discharge against 2 (two) accused persons namely Ibrahim Molla and Kuddus Molla. Having received information somehow that police had already submitted chargesheet against 9 (nine) persons with a prayer for discharge against two(2) accused persons, mentioned hereinabove, De facto complainant felt aggrieved, and filed a petition dated 14th August, 2018 under Section 173 (8) Cr. P.C praying for further investigation. In the petition filed by de facto complainant, it was alleged that the learned court below proceeded to discharge the two (2) FIR named accused persons without issuing any notice upon the de facto complainant. The accused persons sought to be discharged were very influential and the investigating agency did not conduct investigation in a fair and proper manner, and rather acted in gloves with them. It was also alleged that entire incident of committing murderous assault was held under the leadership of the two FIR named accused persons, who were sought to be discharged in this case. Proper medical documents could not be collected, and the weapons, with which the assault was committed, could not be recovered during investigation, simply to hush up the evidence at the instance of the investigating agency. The most partisan attitude of the investigating officer towards conducting investigation was simply an attempt to shield the two lead role taking accused persons from the clutches of the law, because of their social and financial clout. The investigation having conducted in a perfunctory manner, a prayer for further investigation was made by the de facto complainant, which the learned court below ought to have allowed the same in application of the provisions under Section 173(8) Cr. P.C. Learned court below by order dated 15.11.2018 proceeded to reject the prayer for further investigation under Section 173(8) Cr. P.C., relying on a decision of the Apex Court reported in delivered in the case of Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and Ors., 2017 4 SCC 177 Thus according to the learned Magistrate of the court below, the Magistrate has the power to direct investigation under Section 156 Cr.P.C at the pre-cognizance stage even after a chargesheet or a closure report is submitted, once cognizance is taken and the accused persons appear pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The cognizance having already been taken in the instant case on 07.07.2018, the learned court below observed that the Court had no power to order for further investigation under Section 173(8) of the Code of Criminal Procedure on the application made by the de facto complainant after the cognizance of the offence had already been taken.
(3.) Learned advocate for the petitioner submitted that the magisterial authority to order for further investigation after submission of the chargesheet by the police, even when cognizance had already been taken on the chargesheet was not expressly taken away by incorporating express prohibition for the purpose in Section 173(8) Cr. P.C., and thus the submission of a report under sub-Section 173(2) Cr.P.C would not preclude the power of the Magistrate to direct further investigation by the investigating agency and consequent submission of supplementary chargesheet thereon despite the fact that the Magistrate had taken cognizance of the offence on a report submitted under the said provision.;