THE STATE OF BIHAR Vs. SUDHIR KUMAR MANDAL AND RATNESHWAR THAKUR

JUDGEMENT

(1.) This revision by the State is directed against the order of the Sub -divisional Magistrate, Dumka dated the 19th February, 1970 under which he has cancelled the first information report in the case under Sec. 379 of the Indian Penal Code and discharged the accused opposite party. As it appears, this criminal case has arisen in the following circumstances. On 17th January, 1970, the informant, who is an Executive Engineer of the Public Works Department posted at Dumka went to witness the evening cinema show along with his wife who carried her purse (Shanti Niketan type) containing a bunch of key, a pair of golden earrings and a handkerchief. They left the cinema house after the show was over leaving the purse there by mistake. When they detected this mistake at their residence, he (husband) at once sent a written report dated 17th January, 1970 (9.45 P.M.) to the Officer -in -charge of Dumka Town Police Station for necessary action. On the basis of that report, the Officer -in -charge drew up a formal first information report that very night against unknown, under Sec. 379, I.P.C. and took up investigation. In course of that investigation the police searched the residential places of these opposite parties. The residence of opposite party no. 1, Sudhir Kumar Mandal, was a room in the building named 'New Bihar', and that of Ratneshwar Thakur, opposite party no. 2, a room in Indralaya Hotel. It has been stated by learned Government Advocate that these two buildings are about a mile apart in the town of Dumka. Ratneshwar's search was effected at 9 -15 A.M. and that of Sudhir Kumar Mandal at 10 A.M. From the box of Ratneshwar a bunch of key, one piece of gold bali were recovered in course of that search. So also from the box of Sudhir Kumar Mandal a Shanti Nike -tan type hand bag and a gold ball were recovered. The police seized these articles for which necessary seizure lists were prepared before witnesses. Next day (19 -1 -1970), these articles were put on test identification parade in which they were duly identified by the informant.

(2.) On 18 -1 -1970 both the accused persons were produced in custody before the Sub -divisional Magistrate who granted them bail on 19.1.1970. While the investigation in the case was still going on and the submission of the final form in the case was awaited, on 22.1.1970 these accused persons filed a petition before the Sub -divisional Magistrate requesting that the investigation in the case should be stopped and they be discharged. That prayer was seriously objected to on behalf of the State. In due course, the Sub -divisional Magistrate heard the parties on 6.2.1970 and by his impugned order dated 19.2.1970 cancelled the first information report and discharged the accused. As observed above, it is against this order of the Sub -divisional Magistrate that the State has filed this revision.

(3.) Learned Government Advocate appearing for the State has assailed the legality of the impugned order on the ground that since the case was still under investigation by the police it was wholly beyond the authority of the Magistrate to stop or cancel the investigation which falls exclusively within the domain of the police. According to him, if the Magistrate had any jurisdiction to take action in the matter that was after the submission of the final form and not earlier. As already stated, the final form in the case was still being awaited and as I am informed, the police has not submitted any final form in the case till now.