Calcutta High Court (Appellete Side)
Sukumar Dalai & Ors vs The State Of West Bengal Anr on 8 August, 2008
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. NO. 824 of 2008 Sukumar Dalai & Ors.
Versus The State of West Bengal Anr.
For Petitioners : Mr. Prabir Kumar Mitra
Ms. Amina Kabir
For O.P. No. 2 : Mr. Arindam Jana
For State : Mr. Sanat Chowdhury
Heard On : May 2nd, 2008.
Judgment On : 08-08-2008.
Aggrieved by an order passed by the Learned Additional Chief Judicial Magistrate, Contai in exercise of power conferred on him under Section 156 (3) of the Code of Criminal Procedure, forwarding a petition of complaint relating to the offence punishable under Sections 493/109 of the Indian Penal Code to the Inspector In-charge, Contai Police Station for treating the same as FIR and to cause investigation and the registration of the Contai Police Station Case No. 17/08 for the self-same offences, the petitioner invoking provisions of Section 483 of the Code of Criminal Procedure moved the instant criminal revision.
2. The Learned Counsel, Mr. Prabir Kumar Mitra, appearing for the petitioner vehemently contended before this Court since the offence allegedly committed are non-cognizable, as such the impugned order passed under Section 156 (3) of the Code is wholly illegal and without jurisdiction and the FIR registered pursuant to such order is liable to be quashed.
3. Mr. Arindam Jana, the learned Counsel, appearing on behalf of the complainant/opposite party no. 2 submitted before this Court since the Learned Magistrate is empowered to forward a complaint relating to non-cognizable offence to the police for investigation under Section 155 (2) of the Code of Criminal Procedure, the order impugned cannot be deemed to be without jurisdiction. According to him this is a case of misquoting of Section and as such the question of quashing of the FIR does not at all arise. Mr. Jana in support of his contention relied on the following decisions;
Ram Swarup Vs. Mohd. Javed Razaek & Anr., reported in 2005 Cri. L. J. (SC) 1725, Mrs. Rupan Deol Bajaj & Anr. Vs. K.P.S. Gill & Anr., reported in AIR 1996 SC 309 as well as an unreported decision of this Court relating to C.R.R. No. 223 of 2003 in the case of Kajal Jotwani Vs. State.
4. Thus, the question arises for consideration whether a Court is competent to exercise its power under Section 156 (3) of the Code of Criminal Procedure in respect of non-cognizable offences and more particularly where the offence alleged are punishable under Sections 493/109 of the Indian Penal Code.
5. The order impugned is an order passed under Section 156 (3) of the Code of Criminal Procedure as it appears from the same. The provisions of Section 156 of the Code is quoted below;
Section 156 of the Code of Criminal Procedure:-
156. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.
6. A plain reading of the aforesaid provision makes it abundantly clear that the power conferred under Section 156 (3) of the Code can only be exercised by a Magistrate, empowered under Section 190 of the Code and in respect of cognizable offences. Admittedly, the offence involved in the instant case is punishable under Section 493 of the Indian Penal Code and is a non-cognizable offence.
In the aforesaid unreported decision of this Hon'ble High Court, in C.R.R. No. 223 of 2003 in the case of Kajal Jotwani Vs. The State, our Court held since the Magistrate has necessary power under Section 155 (2) of the Code to direct an investigation in respect of non-cognizable offences by the police, mere quoting of a wrong section will not invalidate such order when the Learned Magistrate is otherwise empowered.
7. I have gone through the petition of complaint as well as the impugned order, I find that the petition of complaint was moved invoking Section 156 (3) of the Code and a prayer was made for sending the same to the concerned Police Station with a direction for causing investigation by treating the same as FIR. It appears from the impugned order the Learned Magistrate considering the facts and circumstances of the case as well as the available documents on record and being satisfied that there are sufficient grounds for invoking the provisions of Section 156 (3) of the Code to unearth the truth, passed the order in exercise of his power conferred thereunder. Accordingly, I have no hesitation to hold that this is not a mere mis-quoting of a section in the order but it is a case where the Learned Magistrate has passed the order consciously.
8. Another very important question arises for decision in the instant criminal revision. The question is whether a Magistrate although empowered under Section 190 of the Code of Criminal Procedure to take cognizance of commission of any particular offence or to commit the case for trial to a Court of Sessions, is still authorized to exercise his power under Section 156 (3) or under Section 155 (2) of the Code of Criminal Procedure and can direct a police investigation on a complaint made to him alleging commission of any offence against marriage and punishable under Chapter XX of the Indian Penal Code, when Section 198 of the Code of Criminal Procedure prohibits taking of cognizance of such offence except on a complaint made by the aggrieved person mentioned thereunder.
9. The provisions of Section 198 of the Code is quoted below; Section 198 of the Code of Criminal Procedure:-
198. (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the offence :
Provided that-
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorized by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;
(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.
(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to sub-
section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorization referred to in clause (b) of the proviso to sub- section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorization and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
10. Thus, in view of the prohibition contained in Section 198 of the Code, taking cognizance of any offence against marriage punishable under Chapter XX of the Indian Penal Code otherwise than on a complaint made by the person aggrieved as specified thereunder, is not legally permissible. Accordingly, no Court is empowered to take cognizance of commission such offence on a report submitted by the police under Section 173 of the Code i.e. on charge-sheet. In my opinion, thus an order passed under Section 156 (3) of the Code directing a police investigation in respect of an offence punishable under Chapter XX of the Indian Penal Code, brings about a situation which is completely an abuse of process of court, inasmuch as the court being prohibited from taking cognizance of such offence on a police report, the result of such investigation would be redundant and futile.
11. For the reasons stated above the impugned order cannot be sustained. In the result the instant criminal revision succeeds. Both the impugned order as well as the impugned FIR recorded on the basis of such order and the result of investigation, if any, made on the basis of the said FIR stands quashed.
However, this order will not preclude the Learned Magistrate to proceed on the basis of the complaint made to him, which he forwarded to the police under Section 156 (3) of the Code of Criminal Procedure, in accordance with law.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
( Ashim Kumar Roy, J. )