In CRR 3462 of 2022-CAL HC- Police report u/s 173(2) of CrPC must contain documents as well as statements prescribed in Sec.173(5) and Magistrate is under obligation to consider such accompaniments to satisfy his judicial conscience before taking cognizance: Calcutta HC
Justice Bibek Chaudhuri [10-11-2022]

Read Order: NEELAM AGARWAL & ANR V. THE STATE OF WEST BENGAL & ANR 

Mansimran Kaur

Kolkata,November 16,2022: Noting that cognizance is taken prior to the commencement of a criminal proceeding, the Calcutta High Court has clarified that taking cognizance is a sine qua non or condition precedent for holding a valid trial.

A Single-Judge Bench of Justice Bibek Chaudhuri dismissed the instant criminal revision by observing that   the Magistrate in the present matter took cognizance of offence on the basis of the police report and the materials in case diary which he was entitled to consider under Section 172(2) of the Code, hence this Court was not in a position to set aside the order of taking cognizance against the accused persons.

 In connection with the Alipore Police Station Case of 2021 under Sections 304B/498A/406/34 of the IPC, the Investigating Officer submitted a charge-sheet against one Kushal Agarwal, Naresh Agarwal and Smt. Neelam Agarwal. 

Smt. Neelam Agarwal and Naresh Agarwal were the petitioners before this Court. They had instituted the instant criminal revision challenging the order passed by the Chief Judicial Magistrate at Alipore taking cognizance of offence punishable under Sections 304B/498A/406/34 of the IPC against the petitioners and their son Kushal Agarwal. 

The petitioners also challenged the legality and propriety of the aforesaid order passed by the  Chief Judicial Magistrate at Alipore issuing warrant of arrest against the petitioners after taking cognizance of offence on the basis of the police report/charge-sheet filed by the Investigating Officer.

In this matter, the marriage of one Rashika Jain was solemnized with the above named Kushal Agarwal on February 9, 2020. It was alleged that Rashika Jain was subjected to physical and mental cruelty and harassment by her husband and parents-in-law on demand of dowry since her marriage.

 Failing to bear such physical and mental torture, Rashika Jain had met with an unnatural death within one year of her marriage on February 16, 2021. 

The defacto complainant being the unfortunate father of the deceased lady finally approached this court under Article 226 of the Constitution of India for a direction upon the police authority so that the investigation might be concluded to its logical end.

While challenging the very basis of the case, i.e., order of cognizance taken by the Chief Judicial Magistrate, the petitioners filed another application before the Sessions Judge at Alipore praying for anticipatory bail. However, prayer for the anticipatory bail of the petitioners was rejected by the Sessions Judge. 

The de facto complainant to file a writ petition of 2021. The said writ petition was disposed of by a Coordinate Bench of this Court vide order dated June 14, 2022. 

After considering the submissions from both the sides and after pursuing the impugned order, the Court noted that the impugned order contained two distinct parts. In the first part the Magistrate took cognizance of offence punishable under Section 304B/498A/406/34 of the IPC against the accused persons named in the charge-sheet. Second part of the order relates to issuance of a warrant of arrest against the petitioners passed by the Magistrate. 

In view of the same, the Court took into account Chapter (XII) of the Code of Criminal Procedure containing the provisions relating to “Information to the Police and Their Powers to Investigate.”

It was further noted that Section 173(5) of the Code postulates a provision on the principle of fair trial. Thus it casts a duty upon the Police Officer to produce all documents and statements recorded under Sections 161 of all the persons which and whom the prosecution proposes to rely on. 

“Since Police reports under Section 173(2) shall contain documents and statements prescribed in Section 173(5) of the Code, the Magistrate is under obligation to consider the accompaniments to satisfy his judicial conscience before taking cognizance”, the Court further stated. 

 The Court observed that if the impugned order of taking cognizance contained an observation that the Magistrate consulted with the case diary maintained by the Investigation Officer at time of talking cognizance, the court cannot raise any doubt over the issue of taking cognizance, because all the documents and statements required to filed along with the police report were placed in the case diary.

“Only because the Investigating Officer failed to file those documents under Section 173(5) with the police report, cognizance taken by the Magistrate on the basis of police report and materials in case diary cannot be said to be bad”, the Court further noted. 

It was further noted by the Court that on perusal of the impugned order it was ascertained that the Magistrate carefully perused the charge-sheet/police report under Section 173(2) of the Cr.P.C and the case diary and found that there are prima facie materials against the accused persons for further proceeding and accordingly he took cognizance of offence punishable under Section 304B/498A/406/34 of the IPC against the accused persons named in the charge-sheet. 

Therefore, when the Magistrate took cognizance of offence on the basis of the police report and the materials in case diary which he was entitled to consider under Section 172(2) of the Code, this Court was not in a position to set aside the order of taking cognizance against the accused persons, the Court observed. 

On the question as to whether the Magistrate acted illegally and with material irregularity in issuing non-bailable warrant of arrest against the petitioners, this Court was inclined to record that the Magistrate duly considered the guidelines of the Hon’ble Supreme Court in the case of Satender Kumar Antil. 

On perusal of the case diary he found that the petitioners never joined the investigation. The petitioners cannot claim protection against arrest on the basis of the advocate’s letter written to the Investigating Officer on behalf of the petitioners that they were willing to extend cooperation to unearth the truth in the course of investigation, the Court noted. 

 On the contrary, the fact remained that the Investigating Officer failed to ensure attendance of the petitioners during investigation. Moreover, prayer for anticipatory bail of the petitioners was rejected by the Sessions Judge on September 21, 2022, the Court thus observed. 

 Under such circumstances, the Court failed to find any merit in the instant revision and the same was accordingly dismissed.