Gauhati High Court
Srikanta Roy vs The State Of Assam And Anr on 21 May, 2019
Equivalent citations: AIRONLINE 2019 GAU 343, (2019) 200 ALLINDCAS 809
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/7
GAHC010135332017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 260/2017
1:SRIKANTA ROY
S/O. LT. M.C. ROY, NANDANPUR PATH, BASISTHA ROAD BELTOLA,
GUWAHATI, PIN-781028.
VERSUS
1:THE STATE OF ASSAM and ANR.
2:SMT. ARCHITA CHOUDHURY
D/O. SRI ANIL KR. CHOUDHURY
R/O. H. NO.3
BARNACHAL ROAD BAMUNIMAIDAM
P.S. CHANDMARI
GHY.-21
DIST. KAMRUP M
ASSAM
Advocate for the Petitioner : MR.D PHUKAN
Advocate for the Respondent : MR.N AHMEDR-2
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
JUDGMENT
Date : 21-05-2019 Heard the learned counsel for the petitioner and also the learned counsel for the respondent no. 2. The respondent no. 1, State of Assam is a normal party.
Page No.# 2/7
2. The petitioner Srikanta Roy who is one of the accused in C.R. Case No. 967/2017 has filed an application u/s 401 Cr.P.C. for quashing the C.R. Case No. 967/2017 pending before the learned CJM, Kamrup(M) and also the impugned order dated 04.07.2017 of taking cognizance.
3. The son the present petitioner, namely, Anirudha Roy who is the husband of the respondent no. 2, Smti. Archita Choudhury had entered into marriage on 20.04.2011 and thereafter in connection with his job said Anirudha Roy left Guwahati for California to rejoin his job and the respondent no. 2 i.e. his daughter-in-law remained in the matrimonial home. The respondent no. 2 was not taken to the job place of Anirudha Roy which he assured erlier to take her to his work place. After few months on 10.11.2011 the respondent no. 2 filed FIR before the O.C. of Police Station raising certain allegations that the present petitioner along with three others started to demand dowry and subjected her to various types of torture for not giving proper dowry in the marriage. On the other hand her husband instead of supporting her had supported the conduct of the other in-laws that until and unless she fulfils their demand of dowry she cannot join her husband in USA. On a few occasions subsequently, she was forcefully confined in her rooms by her in-laws named in the FIR i.e. her father-in-law, mother-in-law and sister-in-law and her husband. The above FIR was registered as All Women P.S. Case No. 17/2012 u/s 498A IPC and however ended in Final Report on 25.09.2016. The learned Trial Court after receipt of such Final Report issued notice to the complainant/respondent to be present when the matter is called for hearing and in turn, the respondent-wife filed protest petition to the Final Report on 03.01.2017, raising serious objection against such filing of Final Report and she reiterated all her allegations that was incorporated in her initial FIR and contended that the Final Report has been filed in connivance of the police and her in-laws. In her protest petition she has narrated the incident that was reported in her FIR filed earlier about all the allegations regarding those demand of dowry, torture, confinement for non-fulfilment of the demand and that she was forced to leave her job etc. etc. The learned Court below upon hearing the matter of both sides and on perusal of the case-diary and the protest petition passed an order dated 27.02.2017 reject Final Report of the police and proceed with the protest-petition that was field by the complainant as complaint. Thereafter a Court registered the said protest petition as a Page No.# 3/7 complaint case and examined the complainant and her two witnesses u/s 202 Cr.PC and took cognizance of the offence u/s 498(A)/34 IPC vide its order dated 04.07.2017 and issued summon to the accused-persons to face the trial. The above order dated 04.07.2017 and subsequent proceeding has been challenged in this present petition, by the petitioner who is one of the accused in the said case.
4. It has been contended that as the Final Report has been submitted against the FIR filed by the respondent no.2, the cognizance on the same matter is barred as the said protest petition does not state any sort of specific complaint so as to constitute an offence u/s 498A IPC. It is contended by the learned counsel for the petitioner that there has been no specific date, time and manner etc. of the nature of torture, demand etc. and no offence u/s 498A IPC made out. More so on earlier occasion also the respondent had failed to prove her case. It is also challenged that the allegation i.e. in the subsequent complaint petition/protest petition are false and concocted one only to harass her husband and in-laws.
5. I also heard the submission of the learned counsel for the respondent no. 2 who has led this Court towards the earlier FIR as well as the subsequent protest petition which is registered as a complaint case by the Court below to show that both the petitions contains the same allegations and in earlier case the Investigating Officer despite there being evidence on her part to make out a case of dowry demand against the accused, has filed the Final Report. Raising serious objection against Final Report the respondent-wife filed her protest petition. It has been contended that her protest petition contains all the ingredients of the offence regarding cruelty on the basis of which the Court can prima facie hold about the commission of the offence. The statements of the complainant /respondent no. 2 and her two witnesses have also been recorded, which have supported the contention raised by the respondent no. 2 in the complaint petition. Accordingly, the learned counsel for the respondent no. 2 has vehemently objected to the present-petition preferred by the petitioner on the ground that there being no illegality and irregularity in the impugned order of taking cognizance present petition is not maintainable. This Court has limited jurisdiction to interfere the order of taking cognizance by the learned Court below, where complainant has made out a prima facie case for proceeding.
6. An affidavit-in-opposition has also filed by the respondent which contains all details of Page No.# 4/7 the evidence between the parties.
7. Due consideration was given to the submission of the learned counsel for both the parties. Now the crucial question that has been raised in the present petition that (1) whether learned Court below cannot take cognizance of the offence on the protest petition so filed, treating as a complaint?, (2) whereas such a protest petition (it has been registered as a complaint petition) does not constitute any ingredient of the offence u/s 498 A IPC. So as to treat as a complaint u/s 2(d) of Cr.PC?
8. We are aware that the Code of Criminal Procedure does not provide any specific provision for filing protest petition against a Final Report after investigation. Hon'ble Supreme Court has laid down the law that it should be in the interest of justice that prior to acceptance of such Final Report the informant/complainant should be heard. Accordingly after submission of the FR the learned Trial Court issue notices to the complainant/informant to submit about such filing of Final Report. As it has been discussed above the informant in the protest petition raised serious objection against Final Report and she has narrated all details of the incident raising the similar allegation of cruelty upon her by her in-laws including her husband.
9. What should be the duty of the Court after filing of such Final Report has been explained in the case of Abhinandan Jha v. Dinesh Mishra ,reported in AIR 1968 SC 117. It is held that while considering the provisions u/s 156(3)/169/178/190 of the Code, the Magistrate is not under any obligation to accept the final report if he does not agree with the opinion formed by the police. The power to take cognizance, notwithstanding formation of opinion by the police, which is the final stage of investigation has been provided for in Section 191(1)(C) of the Code.
10. When a report is forwarded by police to the Magistrate under Section 173(2)(1) is placed before him the following situations may arise. The report may conclude that no offence appears to have been committed by a particular person or persons. When such a report is placed before the Magistrate he has again option for adopting one of three courses open as mentioned below:
(1) He may accept the report and drop the proceeding, or Page No.# 5/7 (2) He may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of offence and issue process.
(3) He may direct further investigation to be made by the police under Section 156(3).
11. The position is therefore well settled that upon receipt of a police report u/s 173(2) a Magistrate is entitled to take cognizance of offence under Section 190(b) of the Code, even if the police report is to the effect that no case is made out against accused. The Magistrate can take into account statement of witnesses examined by the police during investigation and take cognizance of the offence if he thinks it fit and he is not bound to follow the procedure envisaged in Sections 200/202 of the Cr.P.C.
12. A similar aspect is dealt with in the decision of Moinul Hoque v. State of Assam, reported in 2013 (4) GLT 1038, wherein it is held that when a police officer after investigation has return the case in final report on the ground of insufficient evidence, if the complainant nevertheless wants to protest, thereby inviting the Magistrate to take cognizance under Section 190(1)(a), if it were be so, the protest petition filed would have to satisfy the requirement of a complaint as defined in Section (2)(d) of the Cr.P.C. and that the complaint should contain allegations of fact which constitute the offences upon which alone the Magistrate to take cognizance under Section 190(1)(a) of the Cr.P.C. However, if the protest petition does not contain any allegation of facts which can constitute an offence or is without containing those necessary particulars that a normal complaint has to contain, it cannot be treated as a complaint for the purpose of proceeding u/s 200 of the Cr.P.C.
13. In Sajaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Ors., reported in (2015) 3 SCC 123, the same principle is reiterated that the court is not bound by the report submitted by police and the Magistrate is still free to reject the report and take cognizance, but for the purpose of taking cognizance of an offence the legal requirement to constitute the offence u/s 190(1)(b) of the Code is to be fulfilled. However, once the legal requirement to constitute the offence qua the accused is lacking there is no point of taking cognizance and proceeding further against him.
14. As regards the taking of cognizance of an offence it is held that at the stage of taking Page No.# 6/7 cognizance of a case what is to be seen is whether there is any sufficient ground for taking judicial notice of an offence with a view to initiate further proceeding. The word cognizance is an indefinite import. It merely means (became aware of) and it connotes take notice of judicially, it occurs that as soon as a Magistrate applies his mind to the suspected commission of an offence. Taking of cognizance is a sine qua non or a condition precedent for holding a valid trial.
15. It has been stated that there are three options open to the Court after receipt of such Final Report - first, the Court can accept the Final Report on being satisfied on the materials furnished in the case-diary. Secondly, if the Court is not satisfied with the Report, the Court can direct for further investigation. Thirdly, the Court can suo moto take cognizance of the offence rejecting such Final Report. Accordingly, it can be found that there is no legal bar to take cognizance to an offence even after Final Report has been filed in the given case.
16. In view of legal proposition the Court is fully justified to accept the protest petition as a complaint petition, if it contains the foundation of complaint within the purview of Section 2(d) of the Cr.PC. Of course it has also been explained that if on a whole and indefinite complaint the Court cannot take cognizance of an offence similar of the protest petition unless it has not adduced all the materials constituting the offence.
17. That being the position of law now if we come to the present case in hand it would be found that the respondent no. 2/informant while filing the protest petition has narrated all details of the offence that has been alleged u/s 498A IPC and accordingly it can be treated as a complaint within the purview of Section 2(d) of the Cr.PC. Further the Court also chooses to examine the complainant and other witnesses prior to taking of the cognizance. From the statement of those witnesses, (which is appended in the present petition) it is discernible that all of them have supported the case of the complainant and thereafter cognizance has taken by the impugned order. There appears no illegality and impropriety in order of the learned Trail Court so as to interfere with. It is to be noted that out of five accused-persons only one has come forward to challenge the impugned order and rest of the accused-persons not before this Court.
18. In the reasons and discussion above, I find no merit in the present petition and the Page No.# 7/7 same is accordingly dismissed. The petitioner is at liberty to make prayer for discharge at the time of consideration of charge before the trial Court.
JUDGE Comparing Assistant