Calcutta High Court (Appellete Side)
Arpita Mukherjee Nee Chaterjee vs Deva Prosad Ganguly & Anr on 26 August, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar CRR 1251 of 2014 with CRAN 235 of 2015 Arpita Mukherjee nee Chaterjee
-vs.-
Deva Prosad Ganguly & Anr.
For the Petitioner : Mr. Dipak Sengupta
Mr. Sahid Imam
Mr. Debabrata Ray
Mr. D. Sinha
Ms. Sharmistha Dhar
For the Opposite Party No.1 : Mr. Arindam Jana
Mr. Debapratim Guha
For the State : Mr. Amarta Ghose
Heard on : 18/03/2015; 27/03/2015;
02/04/2015; 09/04/2015;
23/04/2015 & 07/05/2015
Judgement on : 26/08/2015
Subrata Talukdar, J.: In a scene from the epic drama 'Hamlet', Polonius gives the following advice to his son Laertes, when the latter is departing for abroad:-
"Polonius: Yet here Laertes! Aboard, aboard, for shame! The wind sits in the shoulder of your sail, And you are stayed for. There - my blessings with thee! And these few precepts in thy memory"
Among the precious nuggets of paternal advice the following is, in the opinion of this Court, a relevant backdrop to the discussion that follows in this judgment.
"Beware Of entrance to a quarrel; but, being in, Bear't that th' opposed may beware of thee."
In the facts of this case the petitioner, who is the sister-in-law of the opposite party no.1 (for short OP1) and the OP1 appear to be literally following Polonius's advice to the hilt. Both the parties have unremittingly fought and are still fighting a bitter personal war and, the Courts - be it the Court of the Ld. Magistrate or the Courts higher in the hierarchy - have become the casualties.
During their bitter battle the parties have time and again approached the Courts at all levels to act - in view of their institutional position - as the umpire. Reams of paper and time immeasurable have been expended by Courts at all levels to resolve the animus between the parties.
It would be relevant with regard to the above discussion to notice the observations of the Ld. Chief Judicial Magistrate (for short CJM) , Alipore who, in his order dated 12th July, 2011 was pleased to record as follows:-
"For the purpose of amicable settlement between the parties as per wish of the parties and parties lawyer this Court interviewed by asking both at chamber out of a social responsibility as allegation is compoundable one and on hearing both sides they both want three weeks or more time. For the interest of justice case is adjourned for compromise To 8-08-2011 for compromise as plea.
Before parting with the matter it should be proper to give my observation that the effort on the part of mine is purely informal in nature and in course of interaction with the parties it is seemed to me that Smt. Arpita Mukherjee thinks and believes that the complnt Deva Prasad Ganguly and his wife are greedy persons and on some pretext want to grab the property or it's lion share of her father's property and thereby will put her with her son financially insecured position. While the complainant thinks or believes that he and his wife have not been getting respect and treatment from the accused person and her father as per their expectation and entitlement. Result of which whole dispute between them and their families are cropped up. However I want to opine that Smt. Arpita Mukherjee (accd.) acts on the basis of notion and suspicion. On the other hand Mr. Deva Prasad Gangully is more logical and acts on some documents and proof and finally I say both of them are very adamant and ultimately my three hours effort fails. Matter has been left to their respective sense and wisdom with all hope if their good sense prevails in future including next date as fixed above on 08-08- 2011 for further chance of compromise i.d. case to be proceed in its own course of procedure."
Thereafter, by order dated 7th January, 2012 the Ld. 8th Judicial Magistrate (for short JM) in Complaint Case No. 630 of 2011 (for short C-630/2011) noticed that although the Ld. CJM, Alipore tried to settle the dispute between the parties amicably, the attempt was fruitless. Therefore, the Ld. 8th Judicial Magistrate observed as follows:-
"Considering the fact of enmity between the parties as apparent from the order of the Ld. CJM dated 7th December, 2011 and also after considering the settled principle of law as to adoption of very careful approach is deserved in deciding a case where inimical relationship exists between the parties".
The Ld. 8th Judicial Magistrate therefore came to the view that the police report is necessary and called for the same under Section 91 CrPC.
By order no. 33 dated 23rd July, 2014 in C-465/2012 the Ld. 3rd Additional District and Sessions Court at Alipore recorded in his order as follows:-
"However, during the hearing of this petition both the Ld. Counsel for the OP1 (the present petitioner) and the petitioner (the OP1 in the present CRR) (who is also an advocate) shook hands with each other and jointly submitted to this Court that they have forgotten and forgiven the entire incidents and further they have jointly prayed to this Court to dispose of the two petitions dt. 13.05.14 and 17.06.14 in view of their having compromised with each other and having forgotten the past events."
The Ld. 3rd Additional District and Sessions Court observed further as follows:-
"When the parties themselves have shook hands and forgiven each other then there is nothing left for this Court to adjudicate on the petitions dated 13.05.14 and 17.06.2014 and accordingly both are thus dismissed. To 15.09.14 for hearing of the main application."
Upon a reading of the order of the 3rd Additional District and Sessions Court dated 3rd July, 2014 (supra) any reasonable individual could have concluded that as adults the parties have really forgotten the disputes and forgiven each other. To the above extent the labours of the Ld. Courts bordering on the sentimental exude optimism. However, the subsequent conduct of the parties was to prove otherwise.
Now, coming to this revisional application being CRR 1251 of 2014 the petitioner prays for a direction of quashing the impugned proceedings being C-8509/2013 instituted by the OP1 and pending before the Court of the Ld. 10th JM, Alipore under Sections 302/501 of the Indian Penal Code (for short IPC). The proceedings being C- 8509/2013 have their genesis in a complaint filed by the petitioner to the Officer-in-Charge, Lake Police Station on the 26th of September, 2012. The essential part of the complaint reads as follows:-
"Like everyday, today, that is 26.09.2012 at around 7.05 - 7.10 am, I went to drop my son to the pickup point of the Scholl Bus near Priya Cinema. On the way along Motilal Nehru Road, near Oncology Centre, suddenly a youth aged about 20-22 years pounced upon me from rear side. He tore my wearing apparel and tried to match my gold chain, that I was wearing. His actions were dangerous. Not only that he tried to snatch my gold chain, in the course he also tried to outrage my modesty. As I raised an alarm few people arrived at the scene and the youth fled away. While going he gave me a threat that saying "Rantu Babu eill not leave you alone"."
In his complaint being C-8509/2013 filed before the CJM, Alipore the OP1 has, inter alia, stated as follows:-
"6. That on 08.02.2013 evening at 8 P.M. just like a bolt from the blue Your petitioner was confronted with an enquiry, understandably at the behest of the accused person, by a Police Officer in uniform from the Lake Police Station with reference to a complaint dated 26.09.2012 lodged by the accused person, the copy thereof not made available to the petitioner till date inter-alia to the effect that on that date i.e. 26.09.2012 around 7.05/7.10 hours in the morning one unknown youth of 20/22 years tried to snatch the neck chain of the accused person on her way to drop her son at his school near Oncology Centre at Motilal Nehru Road and the accused also mentioned in that complaint that some one called "Rantu Babu" was behind the incident. Strangely enough, the accused person did not make any whisper about the alleged incident in the Ld. Court of the 3rd A.D.J., Alipore, South 24 - Parganas where there was hearing on 08.02.2013 morning relating to the revisional application, and when there was hearing also earlier in the Ld. Court of the 8th J.M., Alipore in November middle 2012.
7. That Your petitioner was grilled by the Police Officer at the behest of the accused person on the basis of a ramshackle complaint, falsely and mischievously lodged by the accused person, without any rhyme or reason, but probably on the advice of her mentors. That the Police Enquiry revealed that the complainant/petitioner is not nick named as "Rantu" at the locale.
This nick-name of the petitioner is known only to the accused person being a very close family member. Secondly, at the alleged place of occurrence some persons were examined by the police and it could be ascertained from them that at that relevant point of time no such incident was witnessed by them as alleged in the letter of complaint of the accused person.
Last but not the least, the accused person was also requested by the police authorities to produce any witness in support of the incident but she declined.
8. That for all practical intents and purposes, the aforesaid complaint lodged by the accused person was not substantiated as per the evidence Act at all by the accused warranting Your petitioner to lodge a complaint with the lake P.S. requesting the O.C. concerned for initiating a proceeding U/S 182 of the I.P.C. against the accused person.
That to the utter astonishment and dismay of the petitioner, a person of considerable social status and standing, terribly humiliated and denigrated by the police enquiry on the basis of an out and out false, mischievous and malicious complaint lodged by the accused person virtually lowering the petitioner to the status of a street ruffian but the Lake P.S. has been sitting on the matter for months on end without any cogent reason altogether.
Your petitioner is constrained to state that Lake P.S. has abdicated its statutory duty as per the Law of the Land in the matter of initiating a proceeding U/s 182 of the I.P.C. knowing it perfectly well that as per the statute the petitioner on his own is barred from initiating any proceeding U/s 182 of the I.P.C. The petitioner immediately on 09.02.2013 filed a written clarification, with the Lake P.S. in connection with the allegation made by the accused in the said complaint on 26.09.2012 and thereafter forthwith/brought the matter to the notice of the Ld. 3rd A.D.J. Alipore, South 24 Parganas in case No. 465 of 2012 on the basis of which the Ld. Court was pleased to direct the O.C., Lake P.S. to file a report in the matter, with specific reference of substantiation of the allegation of the accused dt. 26.09.2012. It is pertinent to mention that the petitioner emphatically states that he was no way involved individually or with others or directly/indirectly in trying to outrage the modesty of the accused, his own sister-in- law or issuing threats to her as alleged or otherwise or at all, more so when two criminal cases and a revisional application were pending at that material point of time."
Therefore, on the ground that the petitioner is liable to be prosecuted for commission of offences under Sections 203/511 of the IPC, the OP1 prayed for taking cognizance and issuance of process.
By order dated 8th November, 2013 C-8509/2013 was transferred to the docket of the Ld. 10th JM, Alipore for disposal. The record was received by the Ld. 10th JM, Alipore on 8th November, 2013 and the OP1-complainant was examined. The Ld. 10th JM being satisfied that a prima facie case under Sections 203/511 IPC has been made out against the present petitioner-accused directed issuance of process under Sections 203/511 IPC including issuance of summons.
Sri Dipak Sengupta, Ld. Senior Counsel appearing for the petitioner has elaborately argued that information was lodged by the petitioner disclosing facts to the police with regard to commission of a cognizable offence. Relying on the decision of the Hon'ble Apex Court in Lalita Kumari vs. State of U.P. & Ors. reported in AIR 2014 SC 187, Sri Sengupta argues that it is the mandatory obligation of the police to record a FIR. According to Ld. Counsel, in view of paragraph 111 of Lalita Kumari (supra) the power of the police to hold a preliminary enquiry without recording a FIR stands excluded.
Sri Sengupta submits that till date no FIR has been recorded by the police on the complaint of the petitioner dated 26th September, 2012 thereby compelling her to bring the incident to the notice of the Commissioner of Police.
Sri Sengupta further argues that in the year 2012 a revisional application was filed by the petitioner in respect of a separate complaint lodged by the OP1 being C-630/2011 before the Ld. 8th JM, Alipore under Sections 504, 506 and 34 IPC. Such revisional application being Criminal Motion No. 465 of 2012 was filed before the District and Sessions Judge, Alipore and thereafter transferred to the Ld. 3rd Additional District and Sessions Court, Alipore.
Sri Sengupta points out that C-465/2012 was instituted on 12th of December, 2012 and was independent of the incident on 26th September, 2012 out of which C-8509/2013 emanates. Strangely, however the Ld. 3rd Additional District Court at Alipore by order dated 12th March, 2013 was pleased to direct the police in respect of the offence alleged to have been committed on 26th September, 2012 - although such offence was neither connected nor associated with C- 465/2012 - which was an application in revision to the complaint of the opposite party under Sections 504, 506 and 34 of the IPC (being C-630/2011) to file a report.
It is relevant for the purpose of discussion by this Court to reproduce the order no. 9 dated 12th March, 2013 of the Ld. 3rd Additional District Court in C-465/2012:-
"After going through the petitioner dt. 26.2.13 and the written objection which is filed by the O.P. No. 1 against the said petition and also after considering the arguments highlighted by the Ld. Advocate of both sides, this court finds that U/S 403 Cr. P.C. this court has jurisdiction to entertain these matters particularly when all further proceedings of the C. Case No. 630 of 2011 has been stayed by the Ld. Sessions Judge, 24-Parganas (S). This court has also power U/S. 91 Cr.P.C. to call for a report from o/c, Lade P.S. regarding the incident dt. 26.9.12 which is lodged by the O.P.-1. So the o/c Lake P.S. is instructed to submit a report how far the allegation of the incident dt. 26.9.12 which is lodged by the O.P. No.1 has been substantiated and that report is to be submitted positively within 21.3.13. the o/c., Lake P.S. also to submit the report in final form which was called for by the Ld. Judicial Magistrate, 8th Court, Alipore in continuation of the report which is already submitted on 30.8.12.
Inform o/c, Lake P.S. By sending a copy of this order through C.I. of Alipre Court, immediately. This order is passed exclusively as interim measure."
Pursuant to the order of the Ld. 3rd Additional District and Sessions Court dated 12th March, 2013 (supra) the police filed a report as directed in C-465/2012. The report is also required to be placed in extenso.
"Ref: Criminal Motion No. 465 of 2012 (27901) Re:- The attached order sheet of Ld. A.D.J. 3rd Court Alipore dated 12.3.13 in the matter of Deva Prasad Ganguly........... The petitioner
-versus-
Smt. Arpita Mukherjee...........The Complainant.
Sir, With due respect and most humble submission I, the undersigned beg to submit before gracious honour that an enquiry was made into the matter as referred above.
Enquiry reveals that on 26.9.12 one Arpita Mukherjee ex- wife of Mr. Kunal Mukherjee & daughter of Prosanta Kr. Chatterjee presently residing at Flat No.101, 153A Motilal Nehuru Road, Kolkata- 29 submitted a letter at this P.S. alleging on that day at around 7.05/07-10 hrs. One unknown youth of 20/22 year old tried to outrage her modesty and tried to snatch her neck chain or her way to drop her son for his school near Oncology Centre on Motilal Neheru Road. She also mentioned that someone called Rantu Babu was behind the incident.
On examining the complainant it could be learnt that the complainant is a divorced woman and residing her paternal house with her ailing father and minor son and a long pending dispute has been going on between her and her brother in law namely Sri Deva Prosad Ganguly, who is also known as Rantu. The bone of contention between them is taking control of the property of Mr. Prosanta Kr. Chatterjee. As the matter related with Civil dispute within the family and several complaint lodged on earlier occasions by the parties, initially no case was recorded and an enquiry was made by examining the local witness of the alleged incident. During enquiry it could be learnt that firstly Mr.Deva Prosad Ganguly is not nick named as Rantu at the locale. Secondly at the alleged place of occurrence some persons were examined who were there at that relevant point of time and it could be ascertained from them that they did not witness any such incident as alleged in the letter of complaint of the Smt.XX Arpita Mukherjee, However Smt. Arpita Mukherjee was also requested to produce any witness of the incident but she decline.
This to be mentioned here that over their dispute several complaints have been rebined at the B.S. by Smt. Arpita Mukherjee but she always avoided the E.O. on some plea and pretext and those enquiry could not be completed. Whereas Mr. Deva Prosad Ganguly was co-operative during enquiry. In court of enquiry Mr. Deva prosad Ganguly strongly denied the allegation and stated that his reputation by lodging false and fictitious complaint against him before the different authority and at every time of lodging complaint by her sister in law he filed criminal case before the Ld. Court against Smt. Arpita Mukherjee and her father P.K.Chatterjee. He also produced some relevant documents/order of the Ld. Court which transpired that in C. Case No 630/2011 Ld.C.J.M. Alipore also tried to amicably settled their dispute but to no effect and the Ld. Court had observed that Smt. Arpita Mukherjee acts on the basis of notion and suspicion and on the other hand Mr. Deva Prosad Ganguly is more logial and acts on the docuemtn and some proof. Later the case was transferred to Ld. J.M. 8th court Alipre where the said Ld. Court also had the same opinion and criticized Smt. Arpita Mukherjee and her father for frequently sending caveat to Mr. Deva Prosad Ganguly with an apprehension of filling civil suit against them by Mr. Deva Prosad Ganguly. In that case the Ld. Court was directed this P.S. to cause an enquiry and report. Consulted with the E.O. and it could be learnt that the police enquiry could not be completed due to continuous non co- operation from the end of Smt. Arpita Kukherjee. The matter is still pending before the Ld. Court. The father in law of the petitioner could not be examined for his ill health.
This is for favour of your Honours kind perusal.
Submitted Sd/- Illegible, O/C Lake P.S. Kolkata-20.3.12"
Sri Dipak Sengupta, Ld. Senior Counsel argues that the Ld. 3rd Additional District and Sessions Court, Alipore could not have taken recourse to Section 91 CrPC to call for a police report to substantiate a separate and different incident which was not in the case before the Ld. Court since admittedly C-465/2012 and impugned proceedings being C-8509/2013 are distinct. Sri Sengupta further argues that the Ld. 3rd Additional District and Sessions Court, Alipore could not have taken recourse to Section 403 and Section 91 CrPC to call for a report from the police since no jurisdiction accrued upon the Ld. Revisionist Court under the above noted sections.
Sri Sengupta reiterates the primary contention on behalf of the petitioner that in the absence of a mandatory recording of a FIR, the police are not competent to place any enquiry by way of a report before the Ld. Court.
The next limb of Sri Sengupta' submissions is that the order of the Ld. 10th JM, Alipore dated 30th November, 2013 which is impugned in the present CRR 1251 of 2014 directing issuance of process is vitiated by non-application of mind and was not warranted in the facts of the present case. Relying heavily on the judgment of the Hon'ble Apex Court in Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. reported in 1999 (5) SCC 749, Sri Sengupta argues that issuance of process against any person is a serious matter. No process could have been issued by the ld. 10th JM on the complaint of the OP1 dated 8th November, 2013 without elaborate scrutiny of documents and properly examining the substance of the allegations. Sri Sengupta points out that the law laid down in Pepsi Foods (supra) has been subsequently upheld in the judgment of S. Khushboo vs. Manniamal & Anr. reported in 2010 (5) SCC 600.
Developing his arguments further on the point that the order directing issuance of process was mechanical, Sri Sengupta takes this Court to the provisions of Section 203 IPC. Section 203 IPC reads as follows:-
"203. Giving false information respecting an offence committed. - Whoever, knowing or having reason to believe that an offence has been committed, given any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Explanation. - In sections 201 and 202 and in this section the word "offence' includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460."
On a reading of the Section (supra) Sri Sengupta argues that outraging the modesty of a woman which falls under Section 354 IPC does not come under the purview of Section 203 IPC (supra). The classes of offences which can be proceeded with under Section 203 IPC have been clearly elucidated in the Explanation and such classes do not include Section 354 IPC. Ld. Counsel therefore argues that the pending proceedings being C-8509/2013 along with the order dated 30th November, 2013 deserve to be set aside.
Sri Sengupta points out that against the report of the police filed before the Ld. 3rd Additional District and Sessions Court on 20th March, 2013 the petitioner has filed an objection. By order dated 4th April, 2013 the Ld. 3rd Additional District and Sessions Court was pleased to consider the written objection of the petitioner against the report of the police. It was noticed by the Ld. Court that the written objection has been served upon the OP1 before the Ld. Court. The Ld. 3rd Additional District and Sessions Court thereafter kept the written objection with the records to be considered at the time of final disposal of C-465/2012.
Sri Sengupta further argues relying on GHCL Employees Stock Option Trust vs. India Info Line Ltd. reported in 2013 (4) SCC 505 that the Ld. 10th JM erroneously issued summons by the order impugned dated 30th November, 2013 without recording his satisfaction that a prima facie case was established against the present petitioner. Sri Sengupta argues that it is apparent from a bare reading of the provisions that since the complaint dated 26th September, 2012 contains the ingredients of attempt to outrage the modesty of a woman, the same does not fall with the ambit of Section 203 IPC. Therefore clearly process was wrongly issued by the Ld. 10th JM against the petitioner.
Relying further on G. Sagar Suri & Anr. vs. State of U.P. & Ors. reported in 2000 (2) SCC 636, Sri Sengupta submits that the petitioner is entitled to move this Hon'ble Court invoking Section 482 CrPC or Article 227 of the Constitution of India when in the absence of any offence being made out against her in the complaint filed by the OP1, the petitioner should not be allowed to go through the agony of a criminal trial.
Sri Sengupta points out that the State-OP2 represented by Ld. Counsel before this Court has been unable to substantiate the steps taken by the Investigating Authority on the complaint of the petitioner dated 26th September, 2012. Neither the State has been able to produce any record to such effect.
Sri Sengupta concludes by arguing that the petitioner is a divorcee and living with her school going son and facing several criminal proceedings instituted at the instance of the OP1 before several Ld. Courts at Alipore and the present impugned proceedings being C-8509/2013 is one more attempt by the OP1 to intimidate the petitioner to deprive her of her ancestral property.
Per contra, Sri Arindam Jana, Ld. Counsel for the OP1 argues that time and again the OP1 had to take recourse to the police and the Courts being faced with continuous harassment and threats at the hands of the petitioner. Citing examples of such harassment Sri Jana argues that both the OP1 and his wife, being the elder sister of the petitioner, have received frivolous caveats repeatedly from the petitioner on the apprehension that the OP1 and his wife intend to deprive the petitioner of the property belonging to the father of the petitioner.
In response to the several caveats the OP1 was compelled to institute criminal proceedings being C-630/2011 under Sections 405, 406 and 34 IPC before the Ld. 8th JM, Alipore with a prayer to call for a report from the police under Section 91 IPC. By order dated 7th January, 2012 and 10th July, 2012 the 8th JM was pleased to direct the petitioner to file a written objection giving reasons for the allegations in connection with sending repeated caveats and further directing the Officer-in-Charge, Lake Police Station to submit a report.
Sri Jana next submits that it will be obvious from the police report filed before the Ld. 8th JM, Alipore that the petitioner failed to adduce proper reasons for sending the caveats and also did not cooperate with the police. Taking this Court to the order of an Hon'ble Single Bench of this Court dated 27th August, 2012 in CRR 2910 of 2012 also filed by the present petitioner, Sri Jana submits that the Ld. Trial Court was directed not to take into consideration any of the observations made by the Ld. Trial Court or the Revisionist Court apart from the merits of the dispute between the parties.
Sri Jana submits that during the lifetime of the father of the petitioner, who is also the father-in-law of the OP1 and father of his wife, i.e. the elder sister of the petitioner, both the OP1 and his wife were restrained from visiting the father of the petitioner on the basis of a false affidavit produced by the petitioner to the effect that the father of the petitioner had no intention to be on visiting terms with either the OP1 or his wife. Sri Jana also points out that it is strange that at the hearing of C-465/2012 before the Ld. 3rd Additional District and Sessions Court, the petitioner was silent with regard to her complaint in connection with the alleged incident of 26th September, 2012.
Ld. Counsel argues that the nickname 'Rantu Babu' of the OP1 is only known to the petitioner and close relatives. The police report dated 20th March, 2013 as submitted in C-465/2012 gives the picture that the nickname of OP1 'Rantu babu' was not known to the local persons of the area and preliminary enquiry reveals that the local persons were present at the relevant time.
Sri Jana also submits that from the police report it appears that the petitioner refused to cooperate in the enquiry and such has been her regular habit. Sri Jana relies upon the fact that several reports filed by the police earlier namely, being report dated 29th February, 2012 in C-630/2011; report dated 29th August, 2012 in C-630/2011; General Diary Entry dated 10th August, 2011 as recorded by the police; and the report dated 20th March, 2013 in C-465/2012 repeat the fact that the petitioner is not at all interested in assisting the police to carry forward their enquiry and allegedly suffers from the mania of being haunted by the OP1 and his wife with the intention of ousting her from her parental property. On the other hand, Sri Jana argues that the police report shows that the OP1 has been always cooperating with the investigating authority and has been producing such evidence on documents in his command when called for.
Sri Jana submits that even the death of their father and father- in-law of the OP1 was not brought to the notice of either the OP1 or his wife, being the elder daughter, at the proper moment thereby preventing the wife of the OP1 from paying her last respects to her late father.
Sri Jana takes the legal point that since the petitioner has herself entered plea before the Ld. 10th JM on 6th June, 2014, having regard to the provisions of Section 252 CrPC, she cannot be now allowed to resile from such position. C-8509/2013 is now fixed for evidence and the petitioner cannot pray for quashing of the proceedings at this stage. The order dated 12th March, 2013 passed by the Ld. 3rd Additional District and Sessions Court, Alipore was not challenged by the petitioner in the present CRR and, therefore only a challenge to the police report dated 20th March, 2013 cannot be sustained. Under the law, according to Sri Jana, the police is permitted to make a preliminary enquiry as part of its investigative procedure and such enquiry can be called for by the Ld. Magistrate as considered appropriate.
Sri Amarta Ghose, Ld. Counsel appearing for the State submits that in the absence of any cooperation from the petitioner with the police to produce witnesses, the Ld. Court had to take recourse to come to a finding with regard to the facts in issue and therefore correctly directed the police to file a report. Sri Ghose argues that in spite of utter non-cooperation by the petitioner the police has placed a fair report before the Ld. Court and the Court will be required to draw its own conclusions.
Having heard the parties and considering the materials on record this Court notices that having regard to the interpretation of the provisions of Section 203 IPC, the argument of Sri Sengupta cannot be accepted. To the mind of this Court the word 'offence' has been defined in Section 40 of the IPC and an offence under Section 203 has been classified with other classes of offences in Chapter XI of the IPC.
Section 40 of the IPC reads as follows:-
"40. 'Offence'. - Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word 'offence' denotes a thing made punishable by this Code.
In Chapter IV, Chapter VA and in the following se4ctions, namely, sections 64, 65, 67, 71, 109, 110, 114, 115, 116, 117, [118, 119 and 120], 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word 'offence' denotes a thing punishable under this Code, or under any special or local law as hereinafter defined.
And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word 'offence' has the same meaning when the thing punishable under the special or local law is punishable under such law with or without fine."
To the further mind of this Court the Explanation to Section 203 IPC covers the category of offences which, if committed at any place out of the country would be punishable by treating such offence to have been committed inside the country. Therefore, the categories of offences in the Explanation to Section 203 IPC by the use of the words "offence includes" creates an exclusive category of offences which will be punishable under Sections 201, 202 and 203 IPC by treating them to be punishable in India although they may have been committed at any place outside India.
Therefore, the only conclusion this Court can draw is that the Explanation has created a separate class of offences committed outside the country without impinging on the defining Section, being Section 40 IPC read with the parent Section 203 IPC. Therefore to exclude Section 354 IPC from the ambit of Section 203 IPC once the act is allegedly committed inside the country would be putting a premium to the Explanation overriding the intention of the controlling section.
This Court, for the reasons already discussed above, cannot also lose sight of the fact that the bitter personal relationship between the parties has time and again forced several courts to examine the crux of the dispute and sift the chaff from the grain. This Court is of the considered view that in order to do so both the Ld. Trial Court and the Revisionist Court can apply any tool legally under their command to arrive at a just finding. Such tools cannot exclude calling for a police report to assist the Court in its enquiry.
Therefore, Sri Sengupta's argument that it is the mandatory obligation to first record a FIR before embarking on any enquiry cannot be accepted. The quest for justice is reflected in the observations of the Hon'ble Apex Court in Paragraph 15 of AIR 2012 SC 2242 in the matter of P. Sanjeeva Rao vs. State of A. P. which is a follows:-
"15. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequieria through LRs., 2012 (3) SCALE 550 : (AIR 2012 SC 1727 : 2012 AIR SCW 2162). A timely reminder of that solemn duty was given, in the following words:
"What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.""
Therefore, when the Ld. Courts are sincerely ardent to direct the gathering of facts in this incessant battle between the parties, the search for the truth by the Ld. Courts cannot be interfered with at this stage by this Court exercising its jurisdiction under Section 482 CrPC.
Finally, this Court finds substance in the legal position that since the petitioner has already entered plea in C-8509/2013, which is evident from the order of the Ld. 10th JM dated 6th June, 2014, this Court having regard to the decision of the Hon'ble Apex Court In Re:
Subramnium Sethuraman vs. State of Maharashtra reported in AIR 2004 SC 4711 is required to refuse the prayer of the petitioner to quash the impugned proceedings.
CRR 1251 of 2014 stands accordingly dismissed.
Interim order, if any, stands discharged.
CRAN 253 of 2015 stands accordingly disposed of.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)