Meghalaya High Court
Samir Mandal vs State Of Meghalaya on 9 November, 2017
Author: S.R.Sen
Bench: S.R.Sen
THE HIGH COURT OF MEGHALAYA
CRL.PETN. No. 25 of 2017
1. Sri. Samir Mandal, son of Ganga Sagar Mandal,
permanent resident of Subhaspally,
Post Office and Police Station: Siliguri,
District: Darjeeling, PIN - 734001,
West Bengal.
... Petitioner
-Versus-
1. The State of Meghalaya.
2. Pinky Malakar, Wife of (L) Sujit Malakar,
Resident of BSNL Quarters,
Rynjah, Shillong, Meghalaya.
3. Basanti Malakar, wife of Late Umesh
Chandra Malakar, resident of Rani Villa,
Laban, Shillong-4, Meghalaya.
....Respondents
BEFORE
THE HON'BLE MR JUSTICE S.R.SEN
For the petitioner : Mr. D.Chakraborty, Adv.
Ms. M.Mandal, Adv.
For the respondents : Mr. K.Khan, Addl. Sr. GA.
Mr. N.Mozika, Adv.
Date of hearing : 09-11-2017
Date of Judgment : 09-11-2017
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JUDGMENT AND ORDER (ORAL)
1. Heard Mr. D.Chakraborty, learned counsel on behalf of the petitioner as well as Mr. K. Khan, learned Addl. Sr. GA, on behalf of the respondent No. 1 and Mr. N.Mozika, learned counsel on behalf of the respondent No. 2.
2. The petitioner's case in a nutshell is that:
"That Laban Police Station Case No. 124 (11) of 2016 dated 5th November, 2016, under Section 497 of the Indian Penal Code, pending before the Court of the Learned Chief Judicial Magistrate, has been initiated at the instance of one Sujit Malakar, the husband of the victim lady, on the strength of furnishing written information on 4th November, 2016 against the Petitioner herein for commission of the alleged Offence of Rape to the Victim lady and the same was treated as First Information Report (FIR in short) for commission of the alleged offence of adultery under Section 497 of the Indian Penal Code (a non-Cognizable Offence), giving rise to instant criminal proceedings against the Petitioner.
That subsequently the Officer-in-Charge, Laban Police Station and upon received of the same, the officer-in-Charge, Laban Police Station caused the same to enter into the General diary, vide General Diary no. 09 dated 4th November, 2016 and assigned R.C. Nongkynrih to enquire into and WPSI R.C.Nongkynrih then held a preliminary enquiry into the veracity of said written complaint dated 4th November, 2016 and for that purpose she got the statement of the victim girl recorded and submitted an Enquiry report to the officer-in-Charge, Laban Police Station. On the basis of the said enquiry report, the officer in charge, Laban Police Station has registered a FIR against the petitioner for commission of the Offence under Section 497 of Indian Penal Code being non-cognizable offence, without taking any Order from the Learned Magistrate in compliance of section 155(2) of Cr.P.C.2
Furthermore, the background of the instant proceedings is also relevant to mention in the present context which buttresses that the present written information dated 4th November, 2016, so furnished by the husband of the respondent no.2 is nothing but the counter F.I.R./Complaint of the earlier complaint dated 27th October, 2016 lodged with the Rynjha Police Station, by the respondent no. 2 hereto brought, interalia, the specific allegation of domestic violence and cruelty against her husband, i.e. the defacto complainant of the instant proceedings. Thus the petitioner hereto prudently believes that out of marital discord between the defacto complainant, in furtherance of his ill motive to tarnish and malign the image of his wife, came up before the Laban Police Station and furnished the written information/complaint dated 4th November, 2016, resulting in the petitioner to be victimized due to the marital dissonance of the defacto Complaint and his wife Pinky Malakar, the respondent no. 2 herein.
That it has come to the knowledge of the Petitioner that the victim lady, in her statements under sections 161 as well as 164 of the Code of Criminal Procedure, have categorically stated that allegations so levelled in the written information dated 4th November, 2016 against the petitioner by her husband namely Sujit Malakar are totally false and baseless.
That in the light of section 198 (as quoted above) read with section 2(d) [which defines the term "Complainant"] of the Code of Criminal Procedure, the Magistrate cannot take cognizance for the offence under section 497 of the Indian Penal Code on the basis of charge sheet (Police Report). Again, the investigating Officer, upon completion of investigation, files charge sheet before the competent Magistrate, upon which the Magistrate takes cognizance and issues process accordingly. Infact, in view of legal embargo couched in section 198 of the Code of Criminal Procedure, the Magistrate is debarred from taking cognizance for the offence under section 497 of the Indian Penal Code; thus, continuation of investigation anymore for the offence under section 497 of the Indian Penal Code would be a futile exercise. In other words, in appreciation of the spirit of section 198 of the Code of Criminal Procedure, it can logically be inferred that the police has no 3 authority to investigate into the offence under section 497 of the Indian Penal Code. Accordingly, continuation of the instant proceedings is the sheer abuse of the process of law and shall be amounting to the flagrant violation of the legal impediment as contemplated in section 198 of the Code of Criminal Procedure, thus the same is liable to be quashed at once.
That Your Petitioner categorically states that the victim lady herself, the respondent no.2, in her statement under section 164 of the Code of Criminal Procedure has already stated that the allegation contained against the petitioner in the written information/complaint dated 4th November, 2016 are entirely false, thus the allegation of rape does no longer exist. Furthermore, as the registration of FIR under Section 497 of the Indian Penal Code and continuation of Investigation thereof are bereft of statutory sanctity, in view of the provision of section 198 of the Code of Criminal Procedure. Accordingly, on these score alone the impugned proceedings is liable to be quashed at once by the Hon'ble High Court by exercising its inherent power under section 198 of the Code of Criminal Procedure. Otherwise, there would be a total travesty of justice.
Inspite of elapse of a considerable period of more than 7 months since the initiation of the impugned proceedings, the police was sitting idle in completing the investigation. And accordingly, your petitioner feeling completely devastated and aghast, penned down a letter dated 17th June, 2017 addressing to the Superintendent of Police, East Khasi Hills, Shillong and requested him to intervene into the matter so that the Investigating Officer concludes the investigation and submit the police report in final form before the Learned Magistrate at an early date.
After being aware of the aforesaid letter dated 17th June, 2017, the investigating Officer immediately thereafter, in order to wreak vengeance on the petitioner, rushed to the Court of the Learned Judicial Magistrate First Class, Shillong with a prayer to collect blood sample of the Petitioner for DNA analysis, while the Learned Magistrate by his Order dated 27th July, 2017, allowed such prayer of the Investigating Officer.4
After obtaining the aforesaid Order dated 27th July, 2017, the investigating authorities are incessantly asking the petitioner to give his blood sample for DNA analysis. The investigative agency has also procured the Order from the Learned Judicial Magistrate, Shillong for collection of the blood samples of the respondent no.2.
That the investigating agency procured sanction from the Learned Magistrate to investigate a non cognizable offence post facto. In the above perspective, it is categorically stated that it is the settled law that the provision of section 155(2) of the Code of Criminal Procedure is mandatory in nature and registering a FIR and initiation of investigation thereon without complying of the same shall inevitably vitiates the proceeding. Hence post facto sanction from the magistrate, after efflux of more than one month since initiation of the impugned proceedings cannot cure the defect crept in at the time of initiation of the Proceedings, as the provision of section 155(2) of the Code of Criminal Procedure cannot operate retrospectively.
The petitioner herein assails the impugned proceedings being Laban Police Station Case No. 124 (11) 16 of 2016 dated 4th November, 2016, alleging for commission of offences under Section 497 of the Indian Penal Code, pending before the Court of the Learned Chief Judicial Magistrate, Shillong along with the impugned Order dated 07.12.2016, passed by the Chief Judicial Magistrate at Shillong and the impugned Order dated 27.07.2017 passed by the Judicial Magistrate, Shillong in Laban Police Case No. 124 (11) 2016, in view of the following reasons:
(i) There is specific legal impediment in section 198 of the Code of Criminal Procedure that the police is devoid of any authority to investigate into the alleged offence under Section 497 of the Indian Penal Code.
(ii) The criminal proceedings under reference is hit by the non-
obstanate clause as provided in section 222(4) of the Code of Criminal Procedure, 1973.
5
(iii) The instant Criminal Proceedings had been initiated without prior sanction of the Learned Magistrate as mandated under Section 155(2) of the Code of Criminal Procedure, 1973 and such sanction was obtained on a subsequent date by the Laban Police Station, and thus defect which had been crept at the time of institution of the proceedings, cannot be cured by subsequently getting the sanction as mandated under Section 155(2) of the Code of Criminal Procedure, 1973. As such, the proceeding is liable to vitiated abinitio.
(iv) The investigation pertaining to the impugned proceedings so carried on by WPSI R.C.Nongkynrih, being informant for registration of FIR and initiation of the instant proceedings, is opposed to be the principal of natural justice."
3. Mr. D.Chakraborty, learned counsel for the petitioner submits that the complainant who filed the FIR is now dead, and the FIR is totally false and was filed out of jealousy as both the petitioner and alleged victim are working in the same office. He also submits that the complainant is always suspicious about the integrity of his wife (alleged victim) and ultimately filed an FIR with the Laban Police Station which was registered as Laban Police Station case No. 124 (11) 2016 under Section 497 IPC. Learned counsel also referred to Section 198 of the CrPC as well as Chapter 20 and submits that no Court shall take cognizance of an offence punishable under Chapter 20 of the IPC except upon a complaint made by some person aggrieved by the offence. In support of his submission, learned counsel also placed a judgment passed by the High Court of Bombay in Shri Maroti s/o Kashinath Kaharade vrs The State of 6 Maharashtra and Anr.; Criminal Revision Application No. 192 of 1993 and he prayed that the entire investigation may be quashed.
4. On the other hand, Mr. K.Khan, learned Addl. Sr. GA submits that initially in the FIR, it is clearly mentioned that the wife of the complainant (alleged victim) was sexually assaulted and raped. If it is so, the case comes within the purview of 376 which is cognizable and for which the permission of the Court is not necessary.
5. After hearing the submissions of the learned counsels for the parties, I have perused the statement recorded under 161 and 164, as appeared in page 38 and 39 of the petition. On perusal of the statements mentioned above, it appears that the victim has totally denied the allegation made by her (Late) husband. Now, since the victim herself is denying the whole episode as alleged by her (Late) husband, I am of the considered view that there remains nothing to be investigated further. The statement under 161 and 164 are reproduced herein below for further reference, if any:
"Laban P.S. Case No. 124(11)16 U/S 497
IPC STATEMENT T/S 161 CrPC Annexure-II Victim:
Smti. Pinky Malakar (30 Yrs) W/o Shri. Sujit Malakar Of Laban, Masjid Road Present Address: BSNL Quarter, Rynjah.7
Examined the Victim Smti. Pinky Malakar W/o Shri. Sujit Malakar of Laban, Masjid Road U/S 161 CrPC who stated that I was married to Shri. Sujit Malakar in 2015 and have been staying with his family at Laban. That due to some kind of misunderstanding at home I asked my husband to move separately and only both of them stayed together at Laban, Masjid Road.
Further, she stated that the complaint by my husband Shri. Sujit Malakar that I was sexually assaulted and forcefully raped by Shri. Samir Mandal is false and all allegations made by him is not true. That the said person Shri. Samir Mandal is only my colleague and that we are only friends and nothing more than that. Further, she stated that ever since my time of pregnancy I shifted with my parents as Sujit was unable to take care of me due to his works. Further, my husband also took away my Micromax Mobile phone from my residence one week ago and did not return the same as all my official contacts are recorded in the mobile. That is all she stated.
R.O.A.C. Recorded As
Stated By WPSI R.C. Nongkynrih
Dated 7/11/16"
"ANNEXURE-9
FORM FOR RECORDING DEPOSITION
In the Court of: Judicial Magistrate First Class, Shillong Present: Smti. N.M. Momin Case no. G.R. Case No. 642 (S) 2016 Deposition of witness no. __________for the ______ prosecution____________ Recorded on oath or solemn affirmation under the provision of OATH ACT, 1969 (Act 44 OF 1969) on this 10th Day of January, 2016 in the __________language Interpreted __________ Name: Smti. Pinky Malakar Aged: 30 yrs Son/Daughter/Wife of : Shri. Sujit Malakar Residence: Presently: Rynjah, BSNL Complex 8 Permanent:
Police Station:
District: East Khasi Hills
Occupation: HDFC Securities
On Oath
The allegation that has been made against Shri. Sameer Mandal who is my colleague is totally false. The problems started after the marriage. My husband is a suspicious person. After six-seven months of marriage I am staying with my parents. After that he took me to Laban and then we stayed in a rented house. After that I got pregnant and he left me in my parents house. He suspects me with everyone. One day he took away my mobile phone and threatened me that he will see me. He threatens me often and I took it casually but I came to know that my husband filed a complaint against Sameer as we both are working in the same company. When I came to know I went to the police station and told the police that the complaint is false and that nothing has happened like that.
That is all I have to say."
6. It is also worth mentioning in this case that, ultimately after scanning the entire case record, it appears that the police has registered a case under 497 IPC and even made serious effort to collect the blood sample of the child for DNA test and this was stayed by this Court when it was moved by Mr. N.Mozika in CRL.PETN. No. 21/2017 by an order dated 26-09- 2017. Now, it is ordered further that the said order dated 26-09- 2017 passed in CRL.PETN. No. 21/2017 is made absolute.
7. After hearing the submissions advanced by the learned counsels for the parties and after scanning the statement under 161 and 164, I am of the considered view that there remains nothing further to investigate. If investigated also, it will be just 9 a futile exercise on the part of the Court as well as the police. Court's are not here to drag unnecessary litigation. Therefore, the FIR dated 04-11-2016 as well as the entire investigation is hereby quashed. Petition is allowed and stands disposed of.
JUDGE S.Rynjah 10