Calcutta High Court (Appellete Side)
Tripti Chatterjee vs State Of West Bengal & Anr on 10 April, 2019
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. 368 of 2017
With
C.R.A.N. 177 of 2019
Tripti Chatterjee
-Versus-
State of West Bengal & Anr.
Advocate for the Petitioner : Mr. Achyut Basu
Mr. Arijit Majumder
Ms. Sonam Basu
Mr. Punam Basu
Advocate for the State : Mr. Rana Mukherjee
Ms. Debjani Sahu
Heard on : 26.03.2019
Judgment on : 10.04.2019
Madhumati Mitra, J. :
This is an application under Section 401/482 of the Code of Criminal Procedure filed by the petitioner praying for an order to quash the proceeding being C/283/2016 under Section 193 of the Indian Penal Code pending before the Learned Judicial Magistrate, 2nd Court, Bolpur, Birbhum.
Brief facts which led to the filing of the present application are as under:-
On 03.06.2015 petitioner lodged an F.I.R with Bolpur Police Station to the effect that the marriage of her niece was solemnised with one Debnath Chakraborty son of Late Gopal Chakraborty of Adityapur Police Station, Bolpur as per Hindu Rites and Ceremonies. At the time of marriage several articles were given an dowry as per demand of the bride-groom family. After marriage the niece of the petitioner started to reside at her matrimonial house with her husband. It was alleged in the said F.I.R. that after one month of marriage victim informed the petitioner that she was subjected to torture by her husband and mother in law for demand of remaining dowry amount of Rs.25,000/-. After getting the information of torture over phone the petitioner and her elder sister visited the matrimonial home of her niece and requested the husband and mother in law not to torture on the victim girl and gave assurance to them to pay remaining dowry amount of Rs.25,000/-. On 02.06.2015 the husband of the victim informed over phone that the victim was hospitalised due to her illness. Petitioner visited the hospital and found the victim was lying dead. It was alleged in the F.I.R. that the husband and the mother in law of the victim were responsible for the death of the victim.
On the basis of the said F.I.R., Bolpur, Police Station, Case No.261/15 dated 03.06.2015 under Section 498A/304B/306/34 I.P.C. was started against the husband and mother in law of the victim.
After completion of investigation charge sheet was submitted against both the F.I.R. named accused persons. Thereafter the case was committed to the Court of Sessions. Charge was framed against both the accused persons for commission of alleged offences under Section 498A/304B/306 of the Indian Penal Code. After holding trial Learned Additional Sessions Judge, Bolpur, Birbhum, was pleased to hold that the prosecution case had not been proved beyond doubt and as such Learned Trial Judge acquitted the accused by extending benefit of doubt. Judgment of acquittal was delivered on 26.07.2016.
From order no.2 dated 13.07.2016 in S.C.No.47/2016 it appears that Learned Trial Judge observed that the petitioner Smt. Tripti Chatterjee had deposed as PW 1 and bluntly said she did not disclose truth in her written information, though she admitted the contents of the written information when she was confronted with her previous statement. It was also observed by the Learned Trial Judge that the petitioner was responsible for the action of the criminal administration of justice by which liberty of accused was curtailed for a considerable period of time or she purposely gave false evidence and in either of the case she had committed an offence with the meaning of Indian Penal Code. Learned Trial Judge brought the entire episode to the notice of Learned Additional Chief Judicial Magistrate, Bolpur, with a request to look into the matter and to take necessary step according to law if she was found to have committed the offence.
Thereafter the petitioner received a summon under Section 68 of the Code of Criminal Procedure 1973 from the Learned Judicial Magistrate, Bolpur, Birbhum, to answer charge under Section 193 of the Indian Penal Code. Criminal proceeding being C.Case No.283 of 2016 pending before the Learned Judicial Magistrate, 2nd Court, Bolpur, Birbhum, under Section 193 of the Indian Penal Code has been assailed by the Learned Advocate for the petitioner on various grounds.
First contention of the Learned Advocate appearing for the petitioner is that the summons under Section 68 of the Code of Criminal Procedure i.e Annexure 'P3' was served upon the petitioner to answer in respect of the charge under Section 193 of the Indian Penal Code without complying with the mandatory provisions for holding an enquiry as mentioned in sub-Section (1) of Section 340 of the Code of Criminal Procedure. Attention of the Court has been invited to Annexure-'P3' i.e the summons issued by the Learned Magistrate under Section 68 of the Code of Criminal Procedure on 19th July 2016 directing the petitioner to answer to the charge under Section 193 of the Indian Penal without holding the enquiry as required under sub-Section(1) of Section 340 of the Criminal Procedure Code. Learned Advocate for the petitioner has further contended that from the summons issued under Section 68 of the Code of Criminal Procedure, it is very much clear that no enquiry as required under sub-Section (1) of Section 340 of the Code of Criminal Procedure was held either by the Learned Additional Sessions Judge or by the Learned Magistrate before issuance of direction upon the petitioner to answer to the charge of the alleged offence under Section 193 of Indian Penal Code. Learned Advocate has further submitted that on 28.12.2016, the Learned Magistrate, 2nd Court, Bolpur, Birbhum was pleased to frame charge against the petitioner for commission of alleged offence under Section 193 of the Indian Penal Code. The main plunk of his submission is that the initiation of proceeding under Section 340 of the Code of Criminal Procedure has no legal basis at all and is liable to be quashed.
Further contention of the Learned Advocate for the petitioner is that in order to convict a person for an offence under Section 193 of the Indian Penal Code, the prosecuting Court has to prove that the said person made a previous statement on oath regarding the facts on which his statement was based and then deny those facts earlier made on oath on a subsequent occasion on oath. According to his contention both the previous statement and the subsequent statement must be on oath and both the statements are opposed to each other and they cannot stand together.
Another contention of the Learned Advocate for the petitioner is that the petitioner being the near relative of the victim girl only set the law in motion by reporting the unnatural death of her niece within four months of her marriage and the factum of the unnatural death of the victim girl within four months of her marriage was established during trial. Statements made in the F.I.R by the petitioner were not statements on oath and as such she cannot be prosecuted for the alleged offence of perjury as mentioned in Section 193 of the Indian Penal Code. It is also the contention of the Learned Counsel for the petitioner that mere fact that person has made contradictory statements in judicial proceeding is not by itself sufficient to justify prosecution under Section 193 of the Indian Penal Code.
In support of his submission Learned Advocate for the petitioner has placed his reliance on several decisions. The decisions so cited at Bar are as follows:
1) Ismail Khan-Appellant Vs. The State-Respondent reported in(1992) CriLJ 3566: (1994)2 Crimes 801 (1991)4 KantLJ 262: (1993) 1 RCR (Criminal)227;
2) Jose John, Petitioner Vs. K.C.Kuruvila, son of Chanda Pillai and others, Respondents reported in 1996 CRI.L.J.1449 (Kerala High Court).
3) Amarsang Nathaji as himself and as Karta and Manager Vs. Hardik Harshadbhai Patel and Others reported in AIR 2016 Supreme Court 5384.
4) Vittappan Appellant Vs. State, Respondent reported in 1987 Cri.L.J.1994.
5) Santokh Singh-Appellant Vs. Izhar Hussain and another-Respondent (1973) 2 SCC 406.
Mr.Rana Mukherjee, Learned Additional Public Prosecutor appearing for the State has conceded the factual aspects as narrated by the Learned Advocate for the petitioner by stating that the statement of the petitioner was not recorded during investigation under Section 164 Cr.P.C by the Magistrate. According to his contention the petitioner reported the incident of unnatural death of his niece within four months of her marriage. According to his contention police investigated the case and on being satisfied police submitted charge sheet against the accused. He has further contended that the statements made in the F.I.R regarding giving of intimation of occurrence of a cognizable offence is not substantive evidence and no conclusion can be drawn on the basis of the statements made in the F.I.R. as such statements were not made on oath by the petitioner.
I have gone through the materials placed on record as well the decisions so cited at Bar. I have carefully considered the facts and circumstances of the present case, the submissions made by Learned Counsel for the parties and the decisions referred to on behalf of the petitioner.
Our Apex Court and different High Courts had the occasions to deal with the offence of perjury and have laid down various principles relating to the offence of perjury. Law relating to perjury and mode of taking action by the Court on perjury are now well settled. Two conditions have to be fulfilled before making a complaint against a person. First that person has given a false evidence in a proceeding before the Court and secondly in the opinion of the Court it is expedient in the interest of the justice to make an enquiry against such a person in relation to the offence committed by him. Even though it is desirable for the Court to hold the preliminary enquiry making a complaint, it is not mandatory. The purpose of preliminary inquiry even if the Court opts to hold it, is only to decide whether it is expedient in the interest of justice to enquire into the offence whether appears to have committed. The power of holding enquiry cannot be delegated by the judge to some other person. In the complaint filed by Court specific finding regarding exact offence is essential. Mere fact that a witness has made contradictory statements at two different stages in judicial proceedings is not by itself always sufficient to justify a prosecution of perjury under Section 193 of the Indian Penal Code.
Now I have to consider the prayer for quashing the proceeding for perjury as prayed for by the petitioner in the light of the above mentioned established principles of law along with the relevant provisions as contained in the Code of Criminal Procedure.
Petitioner lodged an F.I.R. with police station regarding unnatural death of her niece within four months of her marriage and it was alleged in the said F.I.R. that her niece was subjected to physical torture by her husband and her mother in law for demand of unpaid dowry of Rs.25,000/- (Rupees Twenty Five Thousand). After investigation charge sheet was submitted against both the F.I.R. named accused persons for commission of alleged offences punishable under Section 498A/304B/306 of the Indian Penal Code. Both the accused faced trial for commission of alleged offences under Section 498A/304B/306 of the Indian Penal Code. Before conclusion of trial Learned Trial Judge vide order no.2 (Later) dated 13.07.2016 in S.C.No.47/2016 brought to the notice of Learned Additional Chief Judicial Magistrate, Bolpur, the entire episode of the case with a direction to look into the matter.
The said order of the Learned Additional Sessions Judge is as under:
"SC No.47/16 GR No.541/15) 02(Later) 13.07.16:
Smt Tripti Chatterjee set the criminal administration of justice into motion by informing police that her niece Baishakhi Nunia was married to Debnath Chakraborty on 13th January, 2015 and as demanded by the accused persons, a sum of Rs.50,000/- was paid and remaining Rs.25,000/- out of Rs.75,000/- demanded, was due.
One month after marriage, Baishakhi was subjected to torture, both physical and mental over the demand of said remaining Rs.25,000/- and on
02.06.2015 she died in the hospital.
On the basis of such information, Bolpur PS Case No.261/15 was registered. After investigation Police submitted charge sheet under Sections- 498A/304B/34 of the IPC.
During investigation, the accused persons were in custody of police. From the post mortem report, it appears that the victim died due to asphyxia from the effect of hanging. It was an unnatural death within one year of marriage.
Debnath Chakraborty had to spend his days in custody from 20.07.2015 till 18.03.16.
Smt Tripti Chatterjee as PW 1 bluntly said she did not disclose truth in her written information, though she admitted the content of the written information when she confronted with her previous statement.
Therefore, it can safely be presumed that Smt Tripti Chatterjee was responsible for the action of the criminal administration of justice by which liberty of accused was curtailed for a considerable period of time,or she purposely gave false evidence. In either of the case she has committed an offense within the meaning of Indian Penal Code.
Under such circumstances, I am inclined to bring the entire episode to the notice of Ld ACJM, Bolpur with a request to look into the matter and if it is found that any offense has been committed by Smt Tripti Chatterjee, Ld ACJM shall take necessary step according to Law.
Ld Judge-in-Charge, Copying Department is directed to instruct the office to prepare certified copy of the FIR,deposition of Smt Tripti Chatterjee, so that Ld ACJM can initiate action treating those documents as secondary one.
Let a copy of the ordersheet be sent to Ld ACJM, Bolpur, another copy be sent to Judge-in-Charge, Copying Department.
Bench Clerk of this Court is directed to submit the document along with copy of this order before the Ld ACJM, Bolpur under his seal and signature."
From paragraph seven of the said order, it appears that before completion of the trial, the Learned Trial Judge arrived at his conclusion that the petitioner had purposely given false evidence and she was responsible for the custody of the accused. Before delivery of the judgment on 26.07.2016, the Learned Trial Judge on 13.07.2016 in his order observed that the petitioner had purposely given false evidence which resulted in curtailment of liberty of the accused as they remained in judicial custody for a considerable period. From the order dated 13.07.2016, it appears that the Learned Trial Judge considered the statement made in the written complaint as previous statement of the petitioner.
In this connection Learned Advocate appearing for the petitioner has cited the decision in Vittappan, Appellant Vs. State, Respondent (Kerala High Court) reported 1987 C.R.I.L.J. 1994 and vigorously argued that the first information statement under Section 154 of the Code of Criminal Procedure is not a statement on oath.
Learned Advocate has very forcefully contended that from the material on record the direction for prosecution of the petitioner under Section 193 of the Indian Penal Code is wholly unjustified. In support of his contention he has placed his reliance on the following principle as enunciated in Vittappan, Appellant Vs. State, Respondent (Kerala High Court) reported 1987 C.R.I.L.J. 1994 as under:-
"(A) - First information statement given by accused under S.154 alleged to be false - Held, falsity of such statement cannot be basis of prosecution.
(B) - It is an enquiry by prosecuting court itself regarding offence appeared to have been committed and in such enquiry court must record finding regarding commission of offence - It is not an enquiry for purpose of taking decision whether or not complaint has to be filed."
In his order dated 13.07.2016 the Learned Sessions Judge did not mention anything specifically whether the falsify was in the first information report or in the evidence of the petitioner i.e. P.W.no.1 given on oath. Learned Trial Judge simply observed as under:-
"Smt. Tripti Chatterjee as P.W.1. bluntly said that she did not disclose truth in the written information, though she admitted the content of the written information when she was confronted with her previous statement."
In this connection Learned Advocate for the petitioner has strongly contended that from page 21 of the annexed document i.e the judgment passed by the Learned Trial Judge it appears that prosecution did not examine her under Section 154 of the Evidence Act.
Learned Advocate for the petitioner has forcefully contended that the observation of the Learned Trial Judge is not at all sufficient to draw a conclusion that the petitioner made wrong first information. Moreover, the factum of unnatural death of the niece of the petitioner within one year of marriage was reflected in the order dated 13.07.2016 of the Learned Trial Judge. Learned Trial Judge failed to differentiate which portion of the previous statement of written information was falsely made. Learned Advocate for the petitioner has drawn the attention of Court to the fact that the Learned Judge came to his conclusion regarding purposely giving false evidence by the petitioner before delivery of judgment.
On 26.07.2016 Learned Trial Judge delivered the judgment with the findings that the prosecution case had not been proved beyond doubt and the Learned Trial Judge recorded the order of acquittal of the accused by extending benefit of doubt. No such observation was made by the Learned Trial Judge regarding alleged false evidence given by the petitioner i.e. P.W.no.1 during trial in the said judgment.
In this connection I would like to refer a decision of our Hon'ble Apex Court reported in Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another (2005)4 SCC 370.
In paragraph 24 of the said judgment Hon'ble Apex Court was pleased to observe that normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage where the proceeding is concluded and the final judgment is rendered. Here the Learned Trial Judge asked the Learned Magistrate to take action against the petitioner before completion of trial in respect of which the petitioner was alleged to have given false evidence. When an offence under Section 193 of the Indian Penal Code is alleged to have been committed in relation to any proceedings before the Court, the Court has to follow all the requirements under Section 340 of the Criminal Procedure Code regarding the formation of the opinion on the expediency to initiate an inquiry into the alleged offence.
In the present case, Learned Trial Judge before delivery of judgment on 26.07.2016 in his order dated 13.07.2016 directed the Learned ACJM, Bolpur, to take action against the petitioner after observing that she purposely gave false evidence and she was responsible for the curtailment of liberty of the accused for a considerable period.
In view of the language used in Section 340 of the Code of Criminal Procedure, the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b) of the Code of Criminal Procedure as the section is considered by the words 'Court is of opinion that it is expedient in the interest of justice.' This shows that such a course would be applied only if the interest of justice so requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into the offence. In this connection Learned Advocate for the petitioner has strongly submitted that in the present case no such observation was made by the Learned Trial Judge while directing initiation of proceeding under Section 340 of the Cr.P.C.
Before delving deep into the merit of the submission as made on behalf of the petitioner, it would be better to consider the relevant provisions of the Code of Criminal Procedure whether the prayer of the petitioner to quash the proceeding under Section 193 of the Indian Penal Code initiated on the basis of the complaint made by Learned Trial Judge can be entertained at this stage. In view of the provisions of Section 341 of the Code of Criminal Procedure an order passed under Section 340 of the Code of Criminal Procedure is an appealable order. According to this section any person, on whose application any Court has refused to make a complaint under Sub-Section(1) or (2) of Section 340 of the Code of Criminal Procedure or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate.
The superior Court may, thereafter, after notice to the parties concerned, direct the withdrawal of the complaint which the subordinate Court might have made or itself make the complaint.
In the present case the petitioner did not prefer any appeal challenging the order of making complaint against her by the Learned Additional Sessions Judge. It reveals from the materials placed on record that she appeared before the Learned Judicial Magistrate in response to the summons issued under Section 68 of the Code of Criminal Procedure to answer charge under Section 193 of the Indian Penal Code and charge under Section 193 of the Indian Penal Code has been framed against her.
Now the question comes whether the availability of alternative remedy by way of an appeal, operates as a bar to entertain an application under Section 482 of the Code of Criminal Procedure. In this connection it would not be out of place to mention a decision in Mohit @ Sonu and Another Vs. State of Uttar Pradesh and Another reported in (2013) 7 Supreme Court Cases 789.
In paragraph 28 of the said judgment Hon'ble Apex Court has been pleased to observe as under:
"So far as the inherent power of the High Court as contained in Section 482 CrPC is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged."
Again in paragraph 32 of the said judgment Hon'ble Apex Court has further observed as under:
"The intention of the legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-a-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 CrPC or Section 151 CPC cannot and should not be resorted to."
The petitioner in the instant case has failed to take recourse of Section 341 of the Code of Criminal Procedure. Moreover, in response to the summons issued by the Learned Magistrate under Section 68 of the Code of Criminal Procedure, she appeared before the Learned Magistrate without raising any question regarding the legality or validity of the direction of Learned Trial Judge for drawing up proceeding against her for giving false evidence.
From the contention of the Learned Advocate for the petitioner as well as from the averments of the application under Section 482 of the Criminal Procedure Code, it appears that charge under Section 193 of the Indian Penal Code has already been framed against her. The only remedy open to a person aggrieved by the compliant made under Section 340 of the Code of Criminal Procedure is to prefer an appeal under Section 341 of the Code of Criminal Procedure within the period prescribed by law and it is not permissible to call the said complaint under Section 340 of the Criminal Procedure Code in question in the course of the proceedings initiated on the basis of the complaint under Section 340 of the Criminal Procedure Code. In the instant case, the stage to challenge the legality and validity of the direction of the Learned trial Judge to draw up proceeding under Section 340 of the Code of Criminal Procedure is over and charge has already been framed.
The petitioner without challenging the order of initiation of complaint against her by the Learned Additional Sessions Judge by way of preferring an appeal has filed the present application under Section 482 of the Code of Criminal Procedure to quash the proceedings. The prayer of the petitioner to quash the proceeding being C/283/16 under Section 193 of the Indian Penal Code pending before the Learned Judicial Magistrate, 2nd Court, Bolpur, Birbhum, cannot be entertained due to existence specific provision in Section 341 of the Code of Criminal Procedure.
The application being CRR 368 of 2017 is dismissed accordingly.
Re: C.R.A.N. No.177 of 2019:-
In view of the order passed in CRR 368 of 2017, CRAN 177 of 2019 becomes infructuous and stands dismissed.
Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.
(Madhumati Mitra, J.)