Tripura High Court
Shri Gouranga Roy vs The State Of Tripura on 21 September, 2017
THE HIGH COURT OF TRIPURA
AGARTALA
Criminal Revision Petition No. 87/2016
Shri Gouranga Roy,
S/O Late Sonamoni Roy,
South Charilam,
P.S. - Bishramganj,
District - Sepahijala, Tripura.
...... Defecto Complainant Petitioner.
-Versus-
1. The State of Tripura,
Represented by Secretary,
Home Department, Govt. Of Tripura,
New Capital Complex, Agartala.
Tripura (West).
2. Shri Jogendra Debnath,
S/O Late Taramohan Debnath,
Resident of South Charilam,
P.S. - Bishramganj,
District - Sepahijala, Tripura.
3. Shri Bishnu Acherjee,
S/O Late Lalmohan Acherjee,
Resident of Barman Tilla,
Jogendranagar, P.S. - East Agartala,
District - Tripura (West).
4. Smt. Parulbala Debnath,
W/O. Shri Jogendra Debnath,
Resident of South Charilam,
P.S. - Bishramganj,
District - Sepahijala, Tripura.
...... Respondents.
BEFORE THE HON'BLE THE CHIEF JUSTICE Counsel for the petitioner : Mr. B. Choudhury, Advocate.
Mr. J.P. Saha, Advocate.
Counsel for the respondents : Mr. R.C. Debnath, Addl. P.P., Mr. P. Roy Barman, Advocate.
Mr. S. Lodh, Advocate.
Mr. P. Maishan, Advocate.
Date of hearing : 01-09-2017
Date of Judgment & Order : 21-09-2017
JUDGMENT & ORDER
Aggrieved by the order dated 26-4-2016 passed by the learned Judicial Magistrate, 1st Class, Bishalgarh, in PRC Case No. 206/2014 Criminal Revision Petition No. 87/2016 Page 1 of 8 rejecting the prayer of the petitioner for taking cognizance against the respondents No. 3 (accused No. 5) and the Accused No. 2 U/s 190(1)(a) CrPC for commission of the offences punishable U/s 197/465/468 IPC, this revision petition is preferred by him.
2. The petitioner filed a complaint before the learned Sub-Divisional Judicial Magistrate, Bishalgarh alleging that the respondent No. 2 had sold a land measuring 0.20 acre to him by a registered sale deed and handed over possession of the said land to him on 25-6-1998 whereafter he has been possessing the same till today without any interruption from any quarter. When the respondents (except the respondent No. 3) attempted to dispossess him of the suit land on 20-11-2011, he instituted Title Suit No. 27/2011 against them before the learned Civil Judge, Junior Division, Bishagarh for denying his title and ownership over the suit land. In this way, the petitioner managed to protect his possession of the suit land. The application of the petitioner for mutation of the suit land in his favour was, however, frustrated by the respondent No. 3, who is the Tehshilder, by preparing false enquiry report. In the written statement filed by the respondents No. 2, 4 and 5, he for the first time came to learn that the respondent No. 2 had already caused mutation of the suit land in his name. When the petitioner approached the respondent No. 3 at his office and asked him as to how mutation could be done in the name of the respondent No. 4, the respondent No. 3 advised them to meet him at his house where better discussion could be held. The petitioner accompanied by his men, namely, Anil Babu and Rupchand Mondal accordingly visited the respondent no. 3 at this house and asked as to when he got the registered sale deed and possession of the suit land. The respondent No. 3 then informed them that he could arrange the mutation by making appropriate report if he was given ₹25,000/-. When the petitioner approached the respondent No. 3 again the next day apprising him of his purchase of the suit land by registered sale deed and of his legitimate right to get the suit Criminal Revision Petition No. 87/2016 Page 2 of 8 land mutated in his name and of his inability to pay the amount so demanded by him, he told him in front of Anil Babu that there would be no need to pay the money and no report would be given by him for the mutation. His repeated requests to the respondent no. 3 to prepare the report in order to record the mutation did not meet any success. On the contrary, the respondent No. 3 angrily asked the petitioner and his friends to get out of his house. Subsequently, on the basis of information furnished under the Right to Information Act, the petitioner came to know on 3-9- 2013 that the respondent No. 3 on 13-8-2010 had knowingly prepared a fraudulent and false report certifying that the respondent No. 2 had purchased the suit land and peacefully possessed the same. It was on the basis of such false enquiry report that the suit land got mutated in the name of the respondent No. 2. According to the petitioner, the so-called vendors of the suit land, namely, Jogesh Ch. Debnath and Manaasundari Devi could not have executed the sale deed dated 22-3-2008 in favour of the respondent No. 2 when they had died some 25/30 years back. Thus, the petitioner claimed that the respondent No. 2 committed the offences punishable U/s 177/182/196/200/415/468/471 IPC whereas the respondents No. 4, the accused No. 2, 3 and 4 (who are not parties in this petition) committed the offences punishable U/s 177/182/196/200 IPC. However, the respondent No. 3 committed the offences punishable U/s 197/465/468 IPC. On receipt of the complaint, the learned Magistrate U/s 156(3) CrPC directed the police to investigate the case. After making half- hearted investigation of the case as revealed from the statements of the witnesses recorded under Section 161 CrPC, the police submitted the charge sheet only against the respondent No. 2 whereupon the learned Magistrate decided to drop the proceedings against the five co-accused including the respondent No. 3, who in collusion with the respondent No. 2 recorded the mutation illegally. The petitioner thereafter filed a petition U/s 190 CrPC for taking cognizance against the dropped FIR named accused including the respondent No. 3. As already noticed, the learned Magistrate Criminal Revision Petition No. 87/2016 Page 3 of 8 by the impugned order rejected the petition of the petitioner. At this stage, it may be noted that the prayer of the petitioner in his petition U/s 190 CrPC was to take cognizance of the offences charged against the accused No. 2 (respondent No. 4 herein) and the respondent No. 3 (accused No. 5).
3. I have carefully gone through the impugned order and other materials on record. I have also carefully considered the submissions of the learned counsel appearing for the rival parties. The submissions made by Mr. S. Lodh, the learned counsel for the respondent No. 2 and 4 and Mr. P. Roy Barman, the learned counsel for the respondent No. 3 on the maintainability of the criminal revision petition with vehemence have been duly taken note of. Though numerous contentions have been advanced by the learned counsel for the parties by citing an equal number of citations, the only question, according to me, which calls for consideration is whether the learned Magistrate has improperly exercised his jurisdiction in refusing to take cognizance of the offences charged against the respondent No. 3 and 4 and for not issuing processes against them? The law in this field is no longer res integras from a catena of decision of the Apex Court starting from HS Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh), (1980) 4 SCC 631: AIR 1980 SC 1883. The latest decision in this field is Rakesh and another v. State of U.P. and another, (2014) 13 SCC 133: AIR 2014 SC 3509: 2014 Cri LJ 4195, which restated the legal position:
"6. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma3, notice must be had of the decision of this Court in H.S. Bains v. State (UT of Chandigarh)4 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options:
3
Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, (1982) 3 SCC 510 4 (1980) 4 SCC 631 Criminal Revision Petition No. 87/2016 Page 4 of 8 "6. ... (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."
4. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) have been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein. Reference in this regard may be made to the decision of this Court in Gangadhar Janardan Mhatre v. State of Maharashtra and others5. The following view may be specifically noted:
"9. ... The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the 5 (2004) 7 SCC 768 Criminal Revision Petition No. 87/2016 Page 5 of 8 Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See India Carat (P) Ltd. v. State of Karnataka6]
7. The view expressed by this Court in Gopal Vijay Verma (supra) has been followed in Mahesh Chand v. B. Janardhan Reddy7 and also in a somewhat recent pronouncement in Kishore Kumar Gyanchandani v. G.D. Mehrotra8. The clear exposition of law in para 12 of Mahesh Chand (supra) which is extracted below would leave no manner of doubt that the answer to the question posed by the High Court is correct.
"12. There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised."
8. In the present case, the contention advanced on behalf of the accused pertained to the question of jurisdiction alone; it was urged that having accepted the final report the learned Magistrate had become "functus officio" and was denuded of all power to proceed in the matter. The above stand taken and the answer provided by the High Court would not require us to consider the circumstances in which the exercise of power was made."
(Underlined for emphasis+)
5. On reading and re-reading the impugned order, I am constrained to observe that the learned Magistrate did not properly apply his mind to the 6 (1989) 2 SCC 132 7 (2003) 1 SCC 734 8 (2011) 15 SCC 513 Criminal Revision Petition No. 87/2016 Page 6 of 8 correct legal position before disposing of the petition filed by the petitioner as evident from the following:
"First of all, the petition submitted by the de facto complainant is neither verified by the prosecution nor by any lawyer.
Further, in the present case, cognizance had already been taken by the Court on the basis of a police report and issued process to the accused. So, this petition is not maintainable at this stage.
Hence, the petition submitted by the de facto complainant on 14-8-2015 is hereby rejected."
6. In the first place, the learned Magistrate was apparently confusing the protest petition filed by the petitioner with some application filed in connection with a civil case. There is no law in a criminal case requiring verification of an application of the nature filed by the petitioner in the instant case. Secondly, the petition U/s 190 CrPC for taking cognizance was filed by the petitioner well in time i.e. before he had actually taken cognizance of the offences, which is borne out by the record. Secondly, the other part of the impugned order betrays ignorance of the law laid down by the Apex Court from time to time, some of which could be found from the cited cases in the recent case of Rakesh (supra). I have already summarised the case of the petitioner elsewhere in this order. Prudence demands that the learned Magistrate makes an attempt to equip himself with the legal position as restated by the Apex Court in Rakesh (supra) and apply the legal position obtaining therein to the facts of this case as pleaded by the petitioner.
7. For what has been stated in the foregoing, this revision petition succeeds. The impugned order dated 26-4-2016 be and is hereby set aside. The learned Magistrate is, therefore, directed to take up the petition filed by the petitioner to consider the question as to whether cognizance is to be taken against the offences charged against the respondent No. 3 and 4 for Criminal Revision Petition No. 87/2016 Page 7 of 8 the purpose of issuing process against them in accordance with law. Needless to say, nothing stated in the foregoing shall be construed as final observations on the merit of the case. Transit the LC record forthwith.
CHIEF JUSTICE Criminal Revision Petition No. 87/2016 Page 8 of 8