Calcutta High Court (Appellete Side)
Sri Ram Niwas Chowdhury vs The Superintendent Of Police on 20 April, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
1 (11) 20th April, 2012.
(SKB) C.R.R. 2304 of 2011
Sri Ram Niwas Chowdhury
Vs.
The superintendent of Police,
CBI, SPE, Calcutta
Mr. Pratik Bhattacharyya .....for the petitioner.
Mr. Himangshu De, Mr. Mrityunjoy Chatterjee ....for the C.B.I. The present revision petition has been preferred by the petitioner praying, inter alia, that the order dated 11th March, 2011, passed by the learned Additional District & Sessions Judge Fast Track Court No.8, Kolkata, whereby he affirmed the order passed by the learned Metropolitan Magistrate 12th Court, Calcutta in GR Case No. 1835 of 1994, initiated on the basis of a FIR drawn by C.B.I., Anti Corruption Branch, Calcutta, arising out of FIR being RC No.33 of 1992 under sections 120B/420/466/ 467/468/471/511 of Indian Penal Code and under section 13(2) and 13(1)(d) of the Prevention and Corruption Act, be quashed alongwith charges framed by the Metropolitan Magistrate against the petitioner under sections 120B/209/419/420/467/471/511 of Indian Penal Code.
The prime grievance made by the learned counsel for the petitioner is that no cognizance could be taken by the Metropolitan Magistrate on the FIR drawn by the CBI as mandatory procedure envisaged under section 340 of the Criminal Procedure Code was not followed. Furthermore, the learned trial judge could not take cognizance of the offence as no complaint was filed by the registry 2 of this Court. The counsel for the petitioner has referred to Section 195 of the Code of Criminal Procedure to show that no court can take cognizance of offence under section 209 of IPC until the requisite complaint is filed by the registry of this Court.
To appreciate the argument raised by the counsel for the petitioner, it will be necessary to have brief gist of the facts.
Few writ petitions were filed in this Court in which stay order was passed. It appeared that some interpolation was made in the cause title of the writ petitions and the petitioner took advantage of stay order. This conduct of the petitioner was condemned by learned judge of this Court (Ajit Kumar Sengupta, J. as His Lordship then was) by making the following observations:
"Some of intrinsic evidence which I have narrated hereinbefore would unmistakably point out how some of the persons wanted to take benefit of an order passed on 31st May, 1986 by manipulating, fabricating and interpolating the pages and inserting new pages in the Court records. This is a serious matter and cannot be brushed aside. Apart from that, these contempt applications are hopelessly barred by limitation. The conduct of the persons who are involved in this matter, whether a lawyer or a litigant or an employee of the High Court, must be severely dealt with. I have no doubt in my mind that such thing could not have been done without active collusion, conspiracy and connivance of the petitioners and their Advocates on records and some employees of the High Court Department."3
After having taken a serious note of the various acts of omission and commission, on the part of the petitioner or litigants or employees of the High Court, His Lordship directed the registry, on the appellate side to place the matter before the CBI for a thorough enquiry. The relevant portion of the order wherein this direction was given, read as under:
"The Registrar, Appellate Side, is directed to place the matter before the Central Bureau of Investigation who shall make a thorough enquiry into the matter and submit a report before this Court in sealed cover within three months from the date of communication of this order."
His Lordship on 11th March, 1992 directed the CBI to submit report regarding progress made, from time to time to the Registrar, Appellate Side in sealed cover.
The grievance of the petitioner is that CBI straightway registered criminal case bearing no. RC 93 of 1992 for offence punishable under section 120B/420/460/ 467/468/471/511 of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, against Ram Newas Chowdhury, Omkarnath Srivastav (Lal), Sri Shiw Kumar Roy and Sri Arup Kumar Das. On 19th March, 2008, Metropolitan Magistrate passed an order that charge under section 120B/209/419/420/ 467/468/471/511 IPC be framed against the petitioner.
To appreciate the facts, it is necessary to notice the charges framed against the petitioner. The first charge against the petitioner stated that in the year 1991 at Kolkata, petitioner alongwith his co-accused Omkarnath Srivastav (Lal), Sri Shiw Kumar Roy and Sri Arup Kumar Das had filed C. R. No.5902(W) of 1991 and C.R. No.5903(W) of 1991 on 15th February, 1991 on 4th October, 1991 respectively, against the order dated 31st May, 1985 in civil revision no. 5056(w) of 1983 by inserting the names of 4 different persons who were not party to the proceedings in the Civil Revision No. 5056(W) of 1983. Petitioner had also obtained money from other co-accused to provide job to them in the Eastern Railway as per the order of the Court passed in C.R. No.5056(W) of 1983.
This conduct of the petitioner amounted to an offence, punishable under section 120B IPC. The pertinent charge around which the present controversy revolves under section 209 IPC reads as under:
"That, you during 1991 at Kolkata fraudulently and dishonestly made a claim by filing contempt petition through Shri Soumen Ghosh, Advocate, vide C.R. No. 5903(W) 91 before the Hon'ble High Court, Calcutta, showing different persons as petitioners knowing fully well that they have no knowledge about the proceeding and signature appearing on Vokalatnama annexed with Writ Petition are false and thereby you committed an offence punishable U/s. 209 of the I.P.C. and within the cognizance of this Court. And I do hereby direct that you be tried on the said charge by this court."
Aggrieved against the order passed by the Metropolitan Magistrate where charges were framed, the petitioner filed the criminal revision no.5 of 2009 in the Court of Sessions of Calcutta. The same was entrusted to Additional District and Sessions Judge 8th Fast Track Court, Calcutta for disposal. The learned sessions judge dismissed the revision petition on 11th March, 2011 by upholding the charges framed by the trial judge. The learned court below formulated following points for consideration:
a) Whether Metropolitan Magistrate, 12th Court, Calcutta, is justified in framing charges for the offences under section 120B/209/420/511 I.P.C.? and 5
b) Whether there is any scope to further interfere by the court of appeal with the observations made by the Metropolitan Magistrate 12th Court, Calcutta?
I have perused the order framing charges and the order passed by the revisional court. I have also heard Sri Pratik Bhattacharya, learned counsel for the petitioner and Sri Himangshu De along with M. Chatterjee, learned counsel appearing for the CBI. Section 195(1)(b)(i) of the Code of Criminal Procedure specifically states that no Court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal Code namely, 199, 200, 205 to 211 both inclusive and 228 when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. Admittedly, petitioner has been charged under section 209 of IPC. As per the mandate of law laid in Section 195 of Cr.P.C., it was incumbent for this Court to file a complaint against the petitioner. It is a settled legal position that if in a relation to the court of competent jurisdiction offences have been committed cognizance of the same is bared because of prohibition prescribed under section 195 of Cr.P.C. It is specifically stated no court can take cognizance of the offence except by way of complaint in writing.
Sri H. De. Appearing for CBI has stated that once this Court has directed the CBI to enquire into the matter and it came to the notice of the CBI that a cognizable offence was committed, CBI was duty bound to take the accused to the task.
To counter this, Sri Pratik Bhattacharyya, learned advocate for the petitioner, stated that litigants during the course of prosecution do commit various offences, but it is for the court to decide in which case such litigant is to be prosecuted. Sri Bhattacharyya further states that for the Court it is incumbent to decide in which 6 case for the administration of public justice accused is to be sent for prosecution or not.
After hearing the counsel for the parties two issues arise for consideration for this Court:
1) Whether before holding an enquiry under Section 340 of Cr.P.C., court has to arrive at a conclusion that it is expedient in the interest of justice to hold an enquiry? and
2) Whether complaint by this Court was mandatory or not?
So far as the first issue is concerned, I am of the considered view that His Lordship Ajit Kumar Sengupta (as His Lordship then was) in his order dated 1st October, 1991 had already done this exercise and given a finding that some of the persons wanted to take benefit of an order passed on 31st March, 1985 by manipulating, fabricating and interpolating the pages and inserting new pages in the court records. The entire finding has been reproduced in the preceding portion and discussed. Therefore, no separate enquiry is required as His Lordship has passed the order dated 1st October, 1991 in consonance with the provisions of law. Therefore, an enquiry is deemed to have been held and conditions of Section 340 of Cr.P.C. complied with. Needless to say in such an aggravated situation, Court can take suo motu notice and hold an enquiry.
So far as the second issue is concerned, I accept the submission made by Mr. Bhattacharya that it is mandatory for this Court to file a complaint, in writing. Indication to this effect is already available in the order dated 4th October, 1991, passed by Ajit Kumar Sengupta, J. (as His Lordship then was). His Lordship had further directed the Registrar, Appellate Side of this Court to take into consideration the reports sent by the CBI and His Lordship had further directed on 11th March, 1992 that the CBI 7 should submit progress report from time to time to the Registrar, Appellate Side, in a sealed cover.
Therefore, it is apparent that His Lordship desired that the Registrar, Appellate Side, taking into consideration the report submitted by the CBI, should follow the future course against the persons who were found to have interpolated and manipulated the records and committed serious offences. Thus, CBI could not file the charge-sheet, but only complaint was to be filed. Thus the right course for the Registrar, Appellate Side, of this Court was to file a complaint in writing in the court of competent jurisdiction based on the material placed by the CBI before him for consideration. Therefore, the order framing charges passed by the 8th Metropolitan Magistrate, against the petitioner and the co- accused and the judgment passed by the Additional District and Sessions Judge, 8th Tack Court are set aside. However, Registrar, Appellate Side, is directed to comply the following directions:
a) That he shall take into consideration the enquiry report submitted by the CBI and other reports submitted from time to time.
b) To give effect to the directions issued by an Hon'ble Judge of this Court on 4th October, 1991, based on the materials gathered by CBI. Registrar Appellate Side shall file a complaint in writing in the court of competent jurisdiction against the accused.
c) Needless to say that accused before filing of a complaint is not entitled to hearing by the Registrar, Appellate Side.
However, as and when the cognizance is taken by the Court of competent jurisdiction in the complaint against accused, they have a right to urge before the competent trial court whether the charges are to be framed or not.
8Taking into consideration that this matter is pending for the last twenty years. The Registrar, Appellate Side, is directed to file a complaint within one month from receipt of the order. Thereafter, the concerned court where the complaint shall be instituted shall, within three months thereafter, decide whether accused are to be summoned to start trial or not.
The revisional petition stands disposed of accordingly. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Kanwaljit Singh Ahluwalia, J.)