Patna High Court - Orders
Masud @ Masud Alam vs The State Of Bihar & Anr. on 8 August, 2013
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 13258 of 2012
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Masud @ Masud Alam, S/O Azim Ali @ Azimuddin Ahmad, resident of
Village - Bisahar, P.S.- Itahar, District - Uttar Dinajpur (West Bengal)
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Mahbuba Khatoon, W/O Md. Azimuddin, resident of village - Bariyal,
P.S.- Aabadpur, District- Katihar
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Md. Mohammad Sufyan, Advocate
For the Informant : Mr. Anjum Akhtar, Advocate
For the Opposite Party/s : Mr. Suresh Prasad Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
5 08-08-2013This is a petition for quashing the order dated 17.10.2011 passed by learned Sessions Judge, Katihar in Cr. Rev. No. 20 of 2011 whereby the court below has been pleased to reject the revision application filed by the petitioner against the order taking cognizance dated 08.06.2010 for offence under Section 376 of the Indian Penal Code passed by the learned Judicial Magistrate - 1st Class, Katihar in C.A. Case No. 3645 of 2009.
The prosecution case as alleged in the complaint by the complainant is that the complainant was suffering from ailment in the abdomen and accused no. 2 was Maulbi in Baryol Madarsa and used to visit the house of the complainant. The accused no. 2 tried to impress the complainant to follow him to a Hakim who will mend her illness but she refused saying that her husband does not like. It is further alleged that on 01.06.2008 in the absence of the husband of the complainant the accused nos. 1 and 2 came to the house of the complainant and told her that her husband was going to Raiganj and has asked the accused persons to take her to Hakim and get the complainant ready for taking her to a Hakim. It is further alleged that accused no. 2 administered her tea by which the complainant got Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 2 unconscious and when she gain consciousness in the night, she found herself along with the two accused persons in a room of a hotel. It is further alleged that when she got consciousness, she tried to make Hulla thereafter both the accused persons at the point of dagger overpowered her and committed rape and kept her there for three days. It is further alleged that the accused persons took her to Bhagalpur and kept her in Kahalgaon at Murakchiya in a Hotel and they again raped her and were pursuing her for sale to someone then the complainant anyhow managed to flee away and then the husband was informed and the husband came.
The complaint was sent for lodging First Information Report under Section 156(3) Cr.P.C. The police after investigation submitted final form and the court below accepted the same and issued notice to the complainant and having considered the complaint and protest petition recorded the statement of complainant and her witnesses and after recording the statement of complainant and witnesses took cognizance on complaint by order dated 09.11.2009 and thereafter the complainant and witnesses were examined on oath and the trial court after due consideration of the complaint and the witnesses by order dated 08.06.2010 ordered to issue process against the accused after taking cognizance for the offence under Section 376 of the Indian Penal Code holding that prima facie case is made out against the accused persons.
Against the order taking cognizance dated 08.06.2010 a criminal revision was preferred before the learned Sessions Judge, Katihar. The said revision petition was dismissed by order dated 17.10.2011 confirming the order of the learned Magistrate, Katihar. The said order of Sessions Judge has been challenged by the petitioner by this petition under Section 482 Cr.P.C.
Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 3
Learned counsel for the petitioner contends that the complaint petition was filed which was registered as Complaint Case No. C 2048 of 2008. The said petition was sent for institution of First Information Report under Section 156(3) Cr.P.C. The police after lodging the First Information Report submitted final form and in the meantime a protest petition was filed with a prayer to keep it on record which can be converted into a complaint petition. The police submitted final form and the final form accepted by the Magistrate. The Magistrate proceeded on the protest petition. The said protest petition was treated as complaint and the Magistrate proceeded for inquiry under Sections 200 and 202 of the Cr.P.C. after taking cognizance.
It is submitted by the learned counsel for the petitioner that the protest petition cannot be treated as complaint on the ground that there is no prayer for taking action under Sections 202 - 204 of the Cr.P.C. and hence, does not come under the definition of complaint to be proceeded to take cognizance, issue process. Reliance has been placed upon a decision in the case of Rameshwar Prasad v. Bhatu Mahton and others reported in AIR 1958 Patna 11 as well as the decision in the case of Naresh Chandra Das & Ors. vs. State of Bihar & Ors. reported in 2004(3) PLJR 692.
Learned counsel for the complainant as well as the State, however, submitted that the allegation made in the complaint on the basis of which the case proceeded and sent for investigation treated as First Information Report as well as the protest petition, there is specific allegation with a prayer to take action and hence, comes within the definition of complaint and the court below while considering the fact proceeded in accordance with law and there is no merit in the submission of the learned counsel for the petitioner to interfere with the impugned order.
On the rival contentions of the parties, the question for consideration Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 4 is whether the order taking cognizance as well as issuing process under Section 204 Cr.P.C. suffers from any infirmity.
Taking into consideration the facts and circumstances of the case, that a complaint petition was filed with specific allegation of rape by the accused persons named in the complaint, it is specifically mentioned that accused persons kidnapped the complainant on the pretext that her husband has asked the complainant to follow the accused persons for treatment by Hakim and when she proceeded she was administered some toxic material by which she got unconscious, when she got consciousness she found herself confined in a room where the accused persons raped her at the point of dagger and the said complaint even in the form of complaint petition with specific mention of the date of occurrence with a prayer to take cognizance for offence under Sections 366, 376 and 328/34 of the Indian Penal Code and punish the accused persons. The Magistrate received the complaint, ordered to lodge First Information Report under Section 156(3) Cr.P.C. and the police proceeded for investigation and thereafter the police after investigation submitted final form.
However, during the pendency of the said investigation a protest petition was also filed. The said protest petition was also on record with the name of the complainant, the name of the accused persons, the offence as well as the specific allegation about the kidnapping and rape and administering intoxicant substance with a prayer that the protest petition be kept on record so that it may be converted into a complaint petition in future.
Hence, from perusal of the complaint petition on the basis of which First Information Report lodged under Section 156(3) of the Cr.P.C. and protest petition, it is apparent that there is allegation which makes out cognizable offence of kidnapping and rape and administering intoxicant Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 5 substance with a specific prayer to take cognizance and punish the accused persons and be converted into complaint.
However, a complaint has been defined under Section 2(D) of the Cr.P.C. that "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report" and hence, the complaint means allegation made orally or in writing with a view of taking action.
Here from perusal of the complaint and protest petition, it is apparent that there is specific allegation made against the accused persons named in the complaint with a prayer to take action under Cr.P.C. and hence, there is no merit in the submission that the allegation made in the complaint petition as well as in the protest petition does not come under the definition of complaint.
Further when a complaint is filed before the Magistrate for taking action, the Magistrate is not bound to take cognizance, if the fact discloses the commission of a cognizable offence. The Magistrate has discretion in the matter that he may forward the complaint under Section 156(3) of the Cr.P.C. or to take cognizance under Section 190 of the Cr.P.C. and proceed if he decides to issue process and before issuing process he shall proceed under Sections 200 and 202 of the Cr.P.C.
However, the power under Section 156(3) of the Cr.P.C. can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(A) of the Cr.P.C. However, on receipt of the report on First Information Report lodged in pursuance of direction on complaint under Section 156(3) of the Cr.P.C. he can act on the report either to discharge the accused under Section 203 Cr.P.C. or straightway issue process under Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 6 Section 204 Cr.P.C against the accused or the Magistrate may apply his mind on the complaint or protest petition filed before him and take cognizance under Section 190 of the Code of Criminal Procedure but before issuing process against the accused on the basis of complaint or protest petition he has to proceed under Sections 200 and 202 of the Cr.P.C. recording the statement of the complainant and the witnesses and in this circumstance first proviso to Section 202 Cr.P.C. provides that no direction for investigation shall be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions.
However, it is pertinent to mention at this stage that the order for institution of the case under Section 156(3) of the Cr.P.C. is a power under Chapter XII which is a pre-cognizable stage whereas the order taking cognizance under Section 190 of the Cr.P.C. comes under Chapter XIV which is at a post-cognizable stage to proceed under Sections 200 and 202 of the Cr.P.C. and hence, the two powers are mutually exclusive and hence, the option to take cognizance on the complaint sent for institution of the complaint under Section 156(3) of the Cr.P.C. is not curtailed if the police submitted final form on the complaint and the Magistrate can take cognizance on the complaint and any argument that if the Magistrate ordered for investigation under Section 156(3) of the Cr.P.C. The complaint disappears and goes out of existence is not sustainable in the eye of law and this view has been supported in the cases of Madhao And Another Versus State of Maharashtra And Another reported in 2013(5) SCC 615, Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others reported in AIR 1976 SC 1672 as well as in the case of Tula Ram and others v. Kishore Singh reported in AIR 1977 SC 2401. However, it is Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 7 relevant to quote para 9 of the judgment reported in AIR 1977 SC 2401.
"But the Magistrate's powers under S. 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before cognizance is taken. In other words, Section 202 would apply only to cases where the Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances as in the present case where the Magistrate before taking cognizance of the case himself chooses to order a pure and simple investigation under S. 156(3) of the Code. The question is, having done so, is he debarred from proceeding with the complaint according to the provisions of Sections 190, 200 and 204 of the Code after receipt of the final report by the police? We see absolutely no bar to such a course being adopted by the Magistrate."
In the case of Madhao & Another Versus State of Maharashtra & Another reported in 2013(5) SCC 615 in paragraphs 18, 19, 20, 21 and 22, the Apex Court has held as follows:-
"18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3).
19. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 8 record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
20. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
21. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code.
22. The above principles have been reiterated in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy and Tula Ram v. Kishore Singh."
Hence, taking into consideration the facts and circumstances of the case, since the allegation made in the complaint makes out an offence and there is prayer for taking action, on the basis of which cognizance was taken even after submitting final form by the police, there is no bar to take cognizance on the complaint sent for institution of the case under Section 156(3) of the Cr.P.C. as doing so he is not debarred from proceeding with the complaint. However, the decision relied upon by the petitioner is not applied to the facts and circumstances of the case.
Here a case relied upon by the learned counsel for the petitioner in the case of Rameshwar Prasad v. Bhatu Mahton and others reported in AIR 1958 Patna 11, the question for consideration is that application for leave to appeal under Section 417(3) Cr.P.C. lies only if the case is instituted upon a complaint and it was asserted that the police submitted charge-sheet on the First Information Report lodged by the police and trial proceeded and since Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 9 the case was a police case on First Information Report, so Section 417(3) Cr.P.C., 1898 is not applicable.
However, a plea was taken that the complainant filed a protest petition before the S.D.O. before police submitted charge-sheet and so the protest petition must be treated as a complaint and the case ought to have been instituted upon the complaint. The plea was rejected on the ground that the case proceeded on First Information Report and the protest petition only mentions that the Magistrate should direct the statement of some of the prosecution witnesses to be recorded under Section 164 Cr.P.C. and hence, it was held that on First Information Report and in the protest petition neither there was accusation nor any prayer to take action against the accused but for recording statement of witness. Hence, it was held that it does not satisfy the definition of the complaint under Section 4(H) Cr.P.C. and hence, the case is distinguished on the two counts to the present facts and circumstances of the case that the present case arises out of a complaint case with specific allegation of accusation making out a case for offence under Sections 376, 368 and 328 of the Indian Penal Code with a prayer to take cognizance and the accused be punished and hence, there is specific assertion of taking steps under the act for punishment whereas the case of Rameshwar Prasad v. Bhatu Mahton and others reported in AIR 1958 Patna 11 was on the basis of the First Information Report lodged with a protest having a prayer for a direction to record the statement of the prosecution witnesses under Section 164 Cr.P.C. and not for taking cognizance and proceeding on a complaint under Sections 190 or 200 and 202 of the Cr.P.C. and hence, is not applicable to the facts and circumstances of the case.
However, in the case of Naresh Chandra Das & Ors vs. State of Bihar & Ors. reported in 2004(3) PLJR 692 a complaint was filed with a Patna High Court Cr.Misc. No.13258 of 2012 (5) dt.04-07-2013 10 prayer "It is, therefore, prayed that Honour would be pleased to forward the petition of complaint to the Officer Incharge Barsoi with a direction to institute F.I.R. and to investigate the case against the accused persons through the Superintendent of Police, Katihar" and the said complaint was sent to Barsoi Police Station where the First Information Report was registered and final form submitted recommending initiation of proceeding under Sections 182 and 211 Cr.P.C. A protest petition was filed with a prayer "It is, therefore, prayed that your Honour would be pleased to keep this protest petition on record for future reference" and taking into consideration the prayer it was held that it cannot be treated to be a complaint petition as neither allegations made nor there is prayer for taking action in protest or complaint petition. However, the fact of the present case at hand is quite distinct from the decision relied upon by the learned counsel for the petitioner, hence, the decision relied upon by the learned counsel for the petitioner in the cases of Rameshwar Prasad v. Bhatu Mahton and others reported in AIR 1958 Patna 11 and Naresh Chandra Das & Ors vs. State of Bihar & Ors. reported in 2004(3) PLJR 692 are not applicable to the facts and circumstances of the case.
Hence, I do not find any merit to interfere with the order taking cognizance and the petition is dismissed.
(Gopal Prasad, J.) Kundan/-