Calcutta High Court (Appellete Side)
Arindam Mukherjee vs Debasish Banerjee & Ors on 14 March, 2012
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION (APPELLATE SIDE) PRESENT :
The Hon'ble Justice Kanchan Chakraborty C.R.R No. 3052 of 2010 Arindam Mukherjee Versus Debasish Banerjee & Ors.
For the petitioner : Mr. Tirthankar Ghosh
Mr. Anirban Ghosh
For the O.P. No. 1 : Mr. Tapas Kumar Dey
Mr. Nirupan Sarkar
For the State : Mr. Amarta Ghose
Heard On : 06.2.2012
Judgement On : 14.03.2012
Kanchan Chakraborty, J:
1) This application under Section 482 of the Criminal Procedure Code praying
for quashing of the proceeding being G.R. case no. 701 of 2009 (Shyampukur Police Station case no. 96 dated 21.4.2009) under Section 497 of I.P.C, has been taken out by Arindam Mukherjee, the sole accused in that case, mainly on the ground that in a case under Section 497 of IPC, i.e., offence against marriage, an order under Section 156 (3) Cr.P.C.
directing police investigation is not sustainable in law and continuation of such illegal proceedings is amounting to abuse of process of the Court. 2
2) Mr. Debasish Banerjee (hereinafter referred to O.P. 1) filed one petition of complaint in the Court of learned Additional Chief Metropolitan Magistrate, Calcutta against the petitioner Arindam Mukherjee alleging therein commission of some offences, namely, under Sections 497, 447, 405 and 506 of the Indian Penal code and prayed for referring the same to the police station concerned for the purpose of investigation under Section 156 (3) of the code of Criminal Procedure. The learned ACJM, Calcutta upon receiving the said application, referred the same to the Shyampukur Police Station for investigation and report under Section 173 of the code of Criminal Procedure treating the same as F.I.R. and the Shyampukur Police Station, in turn, registered the same as F.I.R. No. 96 dated 21.4.2009 for the purpose of investigation of alleged offences under Section 497,447,504 and 506(ii) of the IPC. On conclusion of the investigation, a report was filed by the Shyampukur Police Station only in respect of only offence under Section 497 of the IPC. The learned ACJM taken cognizance of offence under Section 497 against the petitioner and proceeded further with the proceedings. The petitioner being the sole accused has come up with this application praying for quashing of the entire proceeding on the ground already stated.
3) The only question to be answered in this application is whether the learned Magistrate is empowered to take cognizance of a non-cognizable offence specially offence against marriage on the basis of a police report in view of Section 198 of the code of Criminal Procedure.
3
4) Mr. Tirthankar Ghosh, learned Counsel for the petitioner contended that Section 498 puts an embargo on the Court in the matter of taking cognizance of an offence punishable under Chapter XX of the Indian Penal code except upon a complaint made by the person aggrieved by the offence. He contended that the Court can not take cognizance of such an offence upon receipt of a police report. The offences punishable under Chapter XX of the IPC are non-cognizable in nature therefore, the police authority can not investigate into a case of like nature in view of 155(2) of the Cr.P.C. This apart, he submitted that in view of prohibition contended in Section 198 of the Code, taking cognizance of any offence against marriage punishable under Chapter XX of the IPC otherwise than a complaint filed directly in Court by the person aggrieved, is not legally permissible. In support of his contention Mr. Ghosh referred to a decision of this Court in Sukumar Dalai and Ors. Vs. State of West Bengal and Anr., reported in 2009(1) CHN 622.
5) Mr. Tapas Kumar Dey, learned Counsel appearing on behalf of the opposite party no. 1 contended that the prohibition of Section 198 of the Code of Criminal Procedure is not applicable in this case in view of Sub- Section (4) of Section 155 of the Cr.P.C. He submitted that originally the complaint was filed by the person aggrieved as required under Section 198 of the Code. But, it was not for only an offence under Section 497 of the Indian Penal Code but also for offence under Section 447,509 and 506(ii) of the IPC. Amongst them, the offence under Section 447 is cognizable in nature. 4 Therefore, in view of Sub Section (4) of Section 155 of the code of Criminal Procedure the police authority was not debarred from investigating into such a case and file a report under Section 173 of the Code of Criminal Procedure when the petition of complaint was referred to under Section 156 (3) of the code of Criminal Procedure by the learned Magistrate treating the same as F.I.R. He submitted further that the fact that the lodger of the complaint remained as complainant although the report was submitted by a police officer under Section 173 of the Code. In view of the explanation of the Section 2(d) of the code, in such a case, Court can treat the report of police investigation as a petition of complaint treating the police officer as a deemed complaint. In support of his contention he referred to some decisions such as :
a) Sudha Rani Garg (Smt.) Versus Jagdish Kumar (dead) & Ors reported in (2004) 8 Supreme Court Cases 329;
b) Ali M.K. & Ors. Vs. State of Kerala reported in AIR 2003 Suprme Court 4006;
c) The State of Uttar Pradesh Vs. Bhag Kishore Joshi reported in AIR 1964 SC 221;
d) A.S.K. Krishnappa Vs. S.V.V. Somiah reported in AIR 1964 Supreme Court 227 and 5
e) Joginder Singh Bali Vs. The State reported in AIR 1966 Punjab 465 (V 53 C 110);
6) It is admitted position in this case that the opposite party no. 1 is the person aggrieved as far as offence under Section 497 IPC, 447 and other offences of the IPC are concerned. It is admitted position that he filed a complaint in the Court with a prayer to investigate into the above offences allegedly committed by the petitioner by the local police station. It was a complaint wherein commission cognizable or non-cognizable offence was reported. The learned Magistrate referred the same to the local police station under Section 156 (3) of the Code. It is also admitted position that the local police station investigated into the matter and filed a report under Section 173 only for a non-cognizable offence relating to offence punishable under Chapter XX of the Code.
7) In such circumstances, the first question comes in is whether the Magistrate is empowered to forward such a petition of complaint to police for investigation? It is not disputed that Magistrate can refer to a petition of complaint for police investigation only in respect of cognizable offence. It can not exercise such power in case of a non-cognizable offence. But, in view of Sub-Section (4) of Section 155 the case is to be deemed to be a cognizable offence notwithstanding that the other offences are non-
cognizable. In such a case, the Magistrate is empowered to refer the matter for police investigation and obviously, accept the report and act on that. 6
8) In the case before the Hon'ble Single Bench of this Court in Sukumar Dalai the petition of complaint disclosed only non-cognizable offence and the learned Magistrate invoked the power under Section 156 (3) Cr.P.C. erroneously by referring the same to the police for investigation. The factual aspect in the case before the Hon'ble Single bench is not similar to that of this case. Therefore, the same can not be made applicable in this case.
9) In this regard, a decision of Hon'ble Apex Court in State of Orrisa Vs. Sarat Chandra Shaoo & Anr. reported in AIR 1997 (Supra) - one can well be referred to. It was held by the Hon'ble Court that Sub Section (4) creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated a cognizable, the police has no option but to investigate the whole of the case and to submit a charge- sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed. It was further held that Hon'ble Court that Sub-Section (4) of Section 155 was introduced to overcome the controversy about investigation of non-cognizable offences by the police without leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language 7 employed in sub section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable.
10) In that case the Hon'ble Court discussed the scope of Section 198 of the Criminal Procedure Code also. The case before Hon'ble Apex Court also had arisen out of a petition of complaint comprising of cognizable as well as non-cognizable offences and that was referred to for police investigation and upon receipt of the report from the police only in respect of non- cognizable offence, i.e. under Section 497 of IPC, the learned Trial Court taken cognizance of the offence. It was challenged in the High Court and the High Court quashed the proceeding on the ground that the complaint herself did not personally filed the petition of complaint under Section 494 of IPC which was sine qua non in view of Section 198(1) of the Code.
11) The Hon'ble Court observed :
"The High Court was thus clearly in error in quashing the charge under Section 494, IPC on the ground that the trial Court could not take cognizance of that offence unless a complaint was filed personally by the wife or any other near relation contemplated by Clause © of the proviso to Section 198 (1)."8
12) So in the instant case, the ground taken by Mr. Ghosh is not tenable in view of the decision referred to above. This apart, this Court thinks that in view of explanation of the Section 2(d) of the code of Criminal Procedure, even Court can accept the report submitted by the police as a petition of complaint and take cognizance on it. The police officer who submits the report would be a deemed complainant but in reality, the real complainant would be the de facto complainant in such a case and his position as the real complainant can not be taken over by the police official who submits the report.
13) Be that as it may, I find that the Hon'ble Single Bench of this Court in Sukumar Dalai did not consider the decision of the Hon'ble apex Court in State of Orrisa Vs. Sarat Chandra Shaoo (Supra). The Hon'ble Apex Court is clear on that point and this Court accepts the proposition of by Mr. Dey, learned Counsel appearing for the opposite party no. 1.
14) Accordingly, the prayer for quashing of the proceeding stands dismissed.
15) The proceeding will continue and the learned Magistrate is directed to expedite the trial.
16) The C.R.R. 3052 of 2012 is, thus, disposed of.
(Kanchan Chakraborty,J)