Gauhati High Court
Ahmed Tea Co. Pvt. Limited vs The State Of Assam And Anr on 13 July, 2017
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Crl. Pet. No. 32 of 2007
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
13.07.2017
Heard Ms. Sumitra Sharma, learned counsel for the petitioner and Mr. TK Mishra, learned Additional Public Prosecutor, Assam appearing for the State.
Though notice was served on the complainant/opposite party No.2, he did not enter appearance in the matter.
During the lifetime of the petitioner, he as a plaintiff filed a Title Suit for ejectment of the complainant/opposite party No. 2 before the Court of learned Munsiff No. 1, Dibrugarh, being Title Suit No. 97/2006, which was decreed ex-parte on 28.09.2006 and though summons was served on the said defendant/opposite party No. 2. He did not contest the said suit. The opposite party No. 2 on 26.10.2006, filed an application under Order-IX, Rule-13 CPC before the learned Munsiff No. 2, Dibrugarh stating that he came to know about the said judgment regarding the ejectment suit and the learned Munsiff after hearing the parties, by order dated 26.10.2006 stayed the execution of decree passed in Title Suit No. 97/2006.
The opposite party No. 2, as complainant, on 27.11.2006 filed a criminal complaint before the Chief Judicial Magistrate, Dibrugarh alleging offences against the petitioner and another under Sections 463/465/468/199/200/34 IPC and prayed before the said Magistrate, to forward the said complaint to the Officer-in-Charge of Dibrugarh Police Station to register a case and to do proper investigation and, thereafter, to submit report in Final Form against the accused persons.
Learned Chief Judicial Magistrate, Dibrugarh by his order dated 27.11.2016 itself, directed the Officer-in-Charge of Dibrugarh Police Station to register a case and investigate the matter and to submit report in Final Form, if warranted. On receipt of the said criminal complaint, it was registered as Dibrugarh Police Station Case No. 636/2006 under Sections 465/468/199/200/34 IPC (corresponding to GR Crl. Ptn. No. 32 of 2007 Page 1 of 3 No. 2122/2006). Later, the Investigating Officer of said Dibrugarh Police Station Case No. 636/2006 on 16.12.2006, submitted his report in Final Form stating that a civil suit is pending before the Civil Judge, Junior Division. No.1, at Dibrugarh between the parties and the allegation of the complainant/opposite party No.2 is civil in nature and, therefore, submitted that the Hon'ble Court may decide the case accordingly.
However, the learned CJM, Dibrugarh by his order dated 20.12.2006, sent back the said Dibrugarh PS Case No. 636/2006 for its re-investigation. Hence, this criminal petition.
From perusal of the complaint dated 27.11.2006 of the complainant/ opposite party No.2, it can be seen that it is a complaint under Section 156(3) CrPC, as by the said complaint, the complainant prayed for a direction to forward the said complaint to the Officer-in-Charge of Dibrugarh Police Station, to register the same as a police case and to investigate the matter by police and, thereafter, to submit its report and the learned CJM by his order dated 27.11.2006 itself, mechanically forwarded the said complaint of the opposite party No. 2 to Dibrugarh police station for registering it as a police case, to investigate the same and to submit a report in Final Form in the matter, if warranted.
It is settled that before filing any such criminal complaint under Section 156(3) CrPC, the complainant by swearing an affidavit must submit that the complainant for the same grievance had earlier approached the concerned Police Station under Section 154(1) CrPC by filing an FIR and that same was not considered by the concerned Police Station and then the complainant approached the Superintendent of Police of the concerned District under Section 154(3) CrPC by filing appropriate application informing the said police officer regarding such non-consideration of the informant's FIR and thereafter, said informant approached the Magistrate by filing such complaint for his grievances against the accused persons.
In the present case, neither the complainant in his complaint stated that he earlier filed FIR under Section 154(1) CrPC and also approached the Superintendent of Police of Dibrugarh District under Section 154(3) CrPC, nor the learned CJM, Crl. Ptn. No. 32 of 2007 Page 2 of 3 Dibrugarh considered this aspect of the matter and mechanically forwarded the said complaint dated 27.11.2006 of the complainant to the Officer-in-Charge of Dibrugarh for registering a case without applying his judicious mind.
For the reasons above, the said complaint of the complainant/opposite party No.2 dated 27.11.2006 is not tenable in the eye of law.
During the course of argument, it has been placed before the court that the complainant during the pendency of the case expired on 22.05.2010.
Considering the above, the court is of the view that if the proceeding of said Dibrugarh P.S. Case No. 636/2006 (corresponding to GR Case No. 2122/2006) is allowed to continue against the petitioner, it would be an abuse of the process of the Court and for the ends of justice, in exercise of the power under Section 482 CrPC, the proceeding of Dibrugarh P.S. Case No. 636/2006 (corresponding to GR Case No. 2122/2006) is hereby set aside and quashed.
Consequently, the complaint dated 27.11.2006 preferred by the complainant/opposite party No.2 before the learned Chief Judicial Magistrate, Dibrugarh which was considered as an FIR pertaining to Dibrugarh P.S. Case No. 636/2006 (corresponding to GR Case No. 2122/2006) is also set aside and quashed.
Accordingly this criminal petition stands allowed.
Registry shall return the LCR along with a copy of this order.
JUDGE Pb/-
Crl. Ptn. No. 32 of 2007 Page 3 of 3