Gauhati High Court
Pankaj Choudhury vs The State Of Assam And 2 Ors on 15 December, 2015
Author: P.K. Saikia
Bench: P.K. Saikia
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRL. Petition No. 55 of 2014
Sri Pankaj Choudhury,
S/o Sri Trilokya Choudhury,
Resident of Mangaldoi Town,
R/o - Mangaldoi,
P.S. - Mangaldoi,
Darrang, Assam
..... Petitioner
-Versus-
1. The State of Assam
represented by the public
Prosecutor, Gauhati High Court,
2. Sri Debo Kanta Das,
S/o Sri Roma Kanta Das,
Resident of Ward No. 8,
Mangaldoi Town, Kalitapara,
Darrang, Mangaldoi (Assam)
..... Respondents
3. Smti Minakshi Kumar
Wife of Sri Debo Kanta Das,
Resident of Ward No. 5,
P.S. - Mangaldoi, Darrang,
Mangaldoi (Assam)
Presently residing at
C/O Sri Pranab Majumder,
Nijorapar, Pension Para
Guwahati - 3.
......Proforma Respondent
2
BEFORE
THE HON'BLE MR.JUSTICE P.K. SAIKIA
For the petitioner : K.K. Mahanta, Sr. Adv.
Ms. R. Devisihota, Mr. K. Singha, Mr. K.M.
Mahanta & Mr. K. Konwar, Advs.
For the respondents : Mr. R.D. Mozumder ,Addl. P.P.
Date of hearing : 15.12.2015
Date of Judgment : 15.12.2015
JUDGMENT AND ORDER (ORAL)
This application has been initiated seeking following reliefs: -------
"In the premises, aforesaid it is most respectfully prayed that Your Lordship may be pleased to admit the petition, call for the records, issue notice calling upon the Respondent to show cause as to why the criminal proceeding bearing G.R. No. 1791/2010 initiated on the basis of a complaint/FIR dated 19.10.2010/02.11.2010 and the Charge Sheet dated 30.11.2010 shall not be quashed and upon perusal of records and upon hearing the parties may further be pleased to quash the aforesaid criminal proceeding pending before the Court of the Addl. C.J.M. at Darrang, Mangaldoi including the impugned order passed by the said Trial Court on 17/12/13 may kindly be stayed."
2. Heard Mr. K. K. Mahanta, learned senior counsel, assisted by Mr. R.D. Sihota, learned counsel for the petitioner as well as Mr. A. R. Gogoi, learned counsel for the respondent No. 2 and Ms. S. Sharma, learned counsel for the respondent No. 3.
3. The brief facts necessary for disposal of the present proceeding are that on 19.10.2010, a complaint was filed by Sri D.K. Das,respondent No. 2 herein alleging that his wife namely X (respondent No. 3 herein) had left her matrimonial house on 21.08.2007 leaving behind two daughters in her matrimonial house and thereafter, she took shelter in the house of present petitioner and started living there as husband and wife.
4. In his complaint, the complainant Sri D.K. Das had also requested the Magistrate to forward his complaint to the police for treating it as an FIR, then to register a case 3 thereon under appropriate provisions of law and thereafter, to submit report in Final Form (FF in short) after investigation in accordance with the prescription of law.
5. Learned CJM, Mangaldoi on the receipt of the complainant, as requested, forwarded the same to O/C, Mangaldoi Police Station (in short PS) for registering a case and to submit report in FF in accordance with law. O/C, Mangaldoi, PS, treating such complaint as FIR, registered a case under section 497/498/506/34 IPC against the petitioner and respondent No. 3, herein, vide Mangaldoi P.S. Case No. 966/2010 and ordered investigation.
6. In due course, the IO of the case submitted charge sheet under Sections 497/498/506 IPC against the petitioner as well as against the respondent No. 3, in the present proceeding. On receipt of the charge sheet, the learned Magistrate issued process under the aforesaid provisions of law against the persons who are arraigned as accused persons in such a criminal proceeding.
7. Being aggrieved by the issuance of process, the petitioner approached this Court by way of application u/s 482 CrPC seeking quashment of proceeding before the learned Magistrate which was registered as GR Case No. 1791/2010, now, pending before the learned SDJM, Mangaldoi. The learned Sr. Counsel appearing for the petitioner submits that in view of provisons, incorporated in Section 198 CrPC, a court cannot take cognizance of some offence punishable under chapter XX of IPC except upon a complaint made by some person aggrieved by such offence/offences.
8. According to Sr. counsel, offence punishable under section 497/498 IPC are covered by chapter XX of the IPC and as such, a court cannot take cognizance of such offences unless a complaint in that regard being filed by aggrieved party. However, in the present case, the learned Magistrate took cognizance of offences under Sections 497/498 IPC without there being a complaint in terms of Section 2 (d) of the CrPC.
9. Quite contrary to it, the learned Magistrate took cognizance of those offences on the basis of a police report as contemplated in Section 2 (r) CrPC which is, however, not permissible under the law. Since, there is total violation of directions rendered in section 198 CrPC, the proceeding in question is liable to be quashed on this count alone.
410. It has further been submitted that when some offences in respect of which prohibition in Section 198 CrPC is not applicable are committed along with the offences, covered by 198 CrPC , and if the offences of first categories as well as the offences, covered by section 198 CrPC are committed in the course of same transaction and if the offences, covered by section 198 CrPC, cannot be segregated from the offences to which prohibition of Section 198 CrPC is not applicable, then entire proceeding is liable to be quashed and set aside, if a Magistrate chooses to take cognizance of the offences, covered by prohibition of Section 198 CrPC in violation of dictum in section 198 CrPC.
11. In support of such contention, my attention has been drawn to the decision of Patna High Court in K.P. Sinha vs Aftabuddin, reported in AIR 1955 Patna 453. The relevant part is reproduced below:-
In -- Ram Nath v. Emperor, AIR 1925 All 230 (A), it has been laid down that where the law clearly says that it is a condition precedent to the prosecution that a sanction shall be obtained from the local Government, it is not open to any subordinate authority to override the provision of the law by saying that the offence falls under another section of the Indian Penal Code and if no sanction is necessary for the prosecution under that section, the offender may be prosecuted without any sanction.
In -- Re Ravanappa Reddi v. Emperor, AIR 1932 Mad 253 (B), it was held that a Court cannot evade the provisions of Section 195 of the Criminal P.C. by dealing under Sections 467, 109, Penal Code, with what is in effect an offence under Section 193, Penal Code. A prosecution for an offence under Section 193 required complaint in writing by the Court concerned under Section 195; Section 467 did not require any sanction.
In -- Osman Mistry v. Atul Krishna, AIR 1949 Cal 632 (C), whore the act of a person amounted to an offence both under Section 188 and Section 379 of the Penal Code, Section 188 requiring complaint by the Court concerned under Section 195 of the Code, it was held that it was not possible for the prosecution to ignore the provisions of Section 195 by describing the offence as being punishable under Section 379, and that such a change of garb could not be permitted to defeat the provisions of Section 195.
In -- Basir-ul-Huq v. State of West Bengal, AIR 1953 SC 293 (D), Mahajan J. (as he then was) laid down as follows:
"Though, in our judgment, Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required.
In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of 5 the same character, or by describing the offence as being one punishable under some ether section of the Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195, Criminal P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it."
12. Ms. Sumitra Sharma, learned counsel appearing for the respondent No. 3 echoing same argument further contends that even otherwise, the materials on record does not disclose any offence having been committed by the respondent No. 3 herein since the allegations, made against the respondent No. 3, even if are taken on their face value, do not disclose the commission of offences u/s 497/498/506 IPC by the respondent No. 3.
13. According to her, there are indisputable materials on record to show that it was respondent No. 2, herein, who had subjected the respondent No. 3 to huge torture all the time which forced her to abandon her matrimonial house in order to take shelter in her parental house.
14. In that connection, I have also heard Mr. A.R. Gogoi, learned counsel for respondent No. 2, who submits that there are materials on record to show that before sending the complaint to police, the Magistrate took cognizance and thereafter, he forwarded the complaint to the police in accordance with provisions u/s 156 (3) CrPC. Situation being such, the proceeding in question cannot be quashed and set aside as prayed for by the learned counsel for the petitioner and the respondent No. 3.
15. I have considered the rival submissions, having regard to the materials on record. However, before proceeding further, I find it necessary to have a look at the provision of Section 198 CrPC. For ready reference, same is reproduced below:-
" S. 198. Prosecution for offences against marriage. (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 6 from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf;1
(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' 2 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 com- mitted 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 subsection (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 leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to subsection (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 1 Subs. by Act 45 of 1978 , s. 17, for" section 494" (w. e. f. 18- 12- 1978 ). 2 Ins. by s. 17, ibid. (w. e. f. 18- 12- 1978 ). 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 authorisation 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, where such offence consists of sexual intercourse the 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."
16. The provision of Section 198 CrPC clearly demonstrates that a court cannot take cognizance of offence against marriage unless a complaint is filed. That being so, for taking cognizance of offence, covered by chapter XX of the IPC , it is prerequisite that a complaint, as contemplated in Section 2 (d) CrPC, needs to be filed before the Magistrate by the aggrieved party incorporating necessary statements therein disclosing the offence/offences, specified in chapter XX of the IPC. It naturally follows there-from that court cannot take cognizance of the offences u/s 497/498 CrPC on a police report as contemplated in Section 2 (r) CrPC.
717. In this context, I feel necessary to look into the definition of complaint as well as police report. For ready reference, definition of complaint and police report so incorporated in Section 2 (d) and Section 2 (r) of the CrPC are reproduced below :-
"S. 2 (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
"S. 2 (r) "police report" means a report forwarded by a police officer to a Magistrate under sub-Section (2) of section 173 of the Code"
18. On a reading of the aforesaid provisions in between the lines, it would appear more than clear that the police report and complaint are two different items altogether and unless the conditions, so stated in Section 2 (d) of the CrPC, an allegation made to a Magistrate cannot be treated as a complaint as understood in law.
19. On the perusal of the record, it is found that learned Magistrate forwarded the complaint, presented to him, to the police for taking action on it on treating the same as FIR and he did so in terms of Section 156 (3) CrPC. On the receipt of the same, OC of the concerned Police Station treated it as an FIR and ordered investigation. The IO who was ordered to investigate the case embarked upon investigation being so required by OC, Mogoldoi PS.
20. On the conclusion of investigation, IO submitted police report in the form of Charge-sheet alleging the respondent No. 2 and 3 committing offences u/s 497/498/506 IPC. Being so, there cannot be any doubt that learned Magistrate took cognizance of aforesaid offences, not on the basis of complaint as required under the law but on the basis of police report, so contemplated u/s 173 CrPC which is not permissible under the law.
21. It is worth noting here that the complainant in the aforesaid case had requested the learned Magistrate to forward the complaint , he lodged before the Magistrate, to the police for taking action against the persons, names therein as accused persons. However, a complainant did not have that kind of privilege as is evident from the definition of complaint itself. It is for the Magistrate to decide whether such a complaint 8 is to be sent to the police for taking action in accordance with law or to take action on such complaint on his own in accordance with prescription of law.
22. Since the complainant did not present before the Magistrate, a complaint as understood in law, in satisfaction of provisions incorporated in section 2 (d) read with section 200 CrPC, on this count also, in my considered view, the proceeding in question is required to be interfered with.
23. On the perusal of record it is found that offences u/s 506 IPC was allegedly committed in the course of same transaction which gave rise to offences u/s 497/498 IPC. That apart, said offence, viz., offence u/s 506 IPC cannot be segregated from other offences. Being so, in terms of law laid down in K.P. Sinha (Supra), entire proceeding in question is required to be quashed and set aside.
24. In view of my forgoing discussion, I am of the opinion that the proceeding before the Magistrate is unsustainable in law since such proceeding was conducted in total disregard of the provision under Section 2 (d), section 198 as well as section 200 CrPC.
25. Being so, as prayed for by the learned counsel for the petitioner and respondent No. 3, the proceeding in question is quashed and set aside.
26. Resultantly, this present criminal petition stands allowed.
JUDGE Rupam /arup