Gauhati High Court
Md. Moinul Haque & 8 Ors vs The State Of Assam on 30 August, 2013
Author: T. Vaiphei
Bench: T. Vaiphei
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
CRIMINAL REVISION PETITION NO. 38 of 2013
1. Md. Moinul Haque,
S/o. Late Latif Ali,
Resident of village Kachari Soulmari,
P.S - Rangia, District - Kamrup, Assam.
2. Md. Wahedur Rahman,
S/o. Late Latif Ali.
3. Md. Nurul Islam,
S/o. Md. Khorsan Hazarika.
4. Md. Sohrab Ali,
S/o. Md. Maksed Ali.
5. Md. Ishoque Ali,
S/o. Late. Yusub Ali.
6. Md. Mosahid Ali,
S/o. Moslim Ali.
7. Md. Mazrul Ahmed,
S/o. Md. Moslim Ali.
8. Md. Abdul Hafiz,
S/o. Late Nurudin Ahmed.
All are residents of village Gosain Soulmari,
PS - Rangia, District - Kamrup, Assam.
9. Md. Imran Ali,
S/o. Late Ismail Ali,
Resident of Village - Kachari Soulmari,
P.S. - Rangia, District - Kamrup, Assam.
... P etitioners
... ... .... VS ... ... ...
1. The State of Assam.
Crl. Revn. Petition No. 38/13 Page 1 of 12
2. Mustt. Ajufa Begum,
W/o. Md. Hamid Ali,
Village - Kachari Soulmari, PS - Rangia,
District - Kamrup, Assam.
.... R espondents.
BEFORE
THE HON'BLE MR. JUSTICE T. VAIPHEI
Advocate for the Petitioners - Mr. PC Dey, Advocate.
Mr. A Ganguly,
Advocate.
Mr. B Chanda,
Advocate.
Advocate for the Respondents - Ms. P Chakraborty,
Advocate.
Date of Hearing - 17.08.2013.
Date of Judgment - 30.08.2013
JUDGM ENT AND OR DER (CAV )
1. The short but interesting question of law involved in this criminal revision is whether the learned Sub-Divisional Judicial Magistrate (M), Rangia ("SDJM" for short) has correctly exercised his jurisdiction in accepting the final report submitted by the police ("FR") on the ground of lack of evidence and in simultaneously taking cognizance of the offence on the basis of the protest petition filed by the informant which does not contain facts constituting an offence and thereafter examining the informant/respondent (respondent 2) and his witnesses U/s 200 CrPC?
Crl. Revn. Petition No. 38/13 Page 2 of 12
2. The facts of the case, as projected by the respondent No. 2, are that on 20-5-2010 at about 7 o'clock, the respondent 2 filed a complaint before the learned Sub-Divisional Judicial Magistrate, Rangia ("SDJM") alleging that on 8-5-2010, while her husband and her family members were not at home, the petitioners, armed with daos, dagger, lathis, entered her house and warned her and her mother-in-law that they would be evicted from the house unless they left the same. On their refusal to leave the house, the petitioners started to break things kept in the house by throwing them here and there, take cash money and other things and thereafter set on fire the house by pouring petrol. When they could sense that things were turning dangerous, the respondent No. 2 and her mother-in-law took shelter at the house of Jalal Ali. According to the respondent 2, the petitioners in the process burned down four houses, furnitures and the gifts worth `40 lakhs from her father at the time of her marriage, razed to the ground the remaining walls of the pucca house and burned down the toilet, bathroom, etc. of the house. The petitioners also prevented the Fire Brigade from extinguishing the fire and forced them to return to their station. On receipt of the complaint, the learned SDJM forwarded the same to the Officer-in- Charge of Rangia Police Station ("the OC" for short) for registering a case and investigate the same. The OC thereafter registered a regular case being Rangia PS Case No. 208/2010 U/s 436/395/397/120-B/143/304/506/511 IPC on 23-5-2010.
3. After investigation, the police, however, returned case in the form of a Final Report bearing No. 274, dated 29-9-2010 and submitted the same before the learned SDJM on 9-9-2011 along with the case dairy. The learned SDJM thereafter issued notice upon the informant/respondent to appear Crl. Revn. Petition No. 38/13 Page 3 of 12 before him on 19-9-2011 and registered the police case as G.R. No. 440/2010. The respondent duly appeared before the learned SDJM on the appointed date and filed her protest petition bearing No. 804/2011 with the following words:
"Sir, The information(sic ) named above submits as under:
(1) That the IO of the Rangiya P.S. has perfunctorily investigated the above case and without proper investigation and examination of the PW, the IO has submitted Final Report. The information(sic ) is accordingly aggrieved.
(2) That I am willing to continue the case as a complaint one before this Hon'ble Court. I have other witnesses also.
In view of the above, it is prayed that your honour would be pleased to take cognizance as per provisions of Cr.P.C."
4. On the basis of the aforesaid petition, the learned SDJM directed registration of C.R. Case (Naraji) by fixing 25-10-2011 for examination of informant and witnesses. After registration of case as C.R. Case No. 1269c/2011, the learned SDJM proceeded to examine the informant and two other witnesses, namely, Mridul Ali and Taleb Ali and fixed 15-11-2011 for further examination of witnesses. After examination of more witnesses, Crl. Revn. Petition No. 38/13 Page 4 of 12 namely, Nurul Haque and Sayed Ali, the learned SDJM held that there was prima facie case against the petitioners under Sections 143/436/427 IPC and accordingly issued process against them by fixing 10-1-2012 for their appearance. On their appearance, they were released on bail and were committed to the Court of Sessions Judge, Kamrup as the offence under Section 436 IPC is exclusively triable by the Sessions Court vide the order dated 6-8-2012 and directed them to appear thereat on 22-8-2012.
5. On the receipt of the case record from the learned SDJM/Rangia, the learned Sessions Judge, Kamrup made over the case to the learned Additional Sessions Judge (FTC), Kamrup, Rangia, who registered the case as Sessions Case No. 342(K)/2012 and fixed 4-10-2012 for consideration of charge. The learned Additional Sessions Judge having found that the learned SDJM did not pass any formal order on the FR either for accepting or rejecting the same despite objection by the informant, returned the record to the learned SDJM, Rangia to re-submit the same after passing formal order on the FR. The learned SDJM, after receipt of the record, issued notice upon the informant for appearance on 7-11-2012. On 23-11-2012, the learned SDJM, after hearing the petitioners and the informant as well as the prosecution, passed the impugned order holding that since there was insufficient material to proceed with GR No. 444/2010, the FR had been accepted and the proceeding dropped. However, interestingly, he also simultaneously held that as his predecessor-in-office had already registered CR Case No. 1269c/2011 upon objection by the informant, the case should proceed and directed that the record be re-submitted before the learned Additional Sessions Judge (FTC), Kamrup and fixed 4-12-2012 for Crl. Revn. Petition No. 38/13 Page 5 of 12 appearance by the parties. Aggrieved by this, this revision petition is now preferred by the petitioners.
6. Mr. PC Dey, the learned counsel for the petitioners, submits that the learned SDJM, having accepted the FR and having dropped the proceeding against the petitioners, has grossly erred in law in directing further proceeding of the case and that once the learned SDJM has accepted the FR, he had no jurisdiction to proceed further. According to the learned counsel, even if the informant filed a protest petition against the FR, the learned SDJM did not have the jurisdiction to proceed further unless the same satisfied the requirements of the section, which is not the case here. In other words, what the learned counsel has contended is that the protest petition must disclose allegations of fact which could constitute an offence or offences, which alone would confer upon him the jurisdiction to take cognizance of the offence. The learned counsel, therefore, submits that the facts stated by the informant therein did not even make any whisper of statement disclosing the commission of any offence by the petitioners. On the other hand, Ms. P. Chakraborty, the learned counsel for the respondent, supports the impugned order and submits that no interference is called for. According to her, the question to be determined at this stage is not whether there are materials for conviction of the petitioners under the sections charged against them but whether there are some materials for taking cognizance of the offences charged against the petitioners. So judged, argues the learned counsel, the learned SDJM rightly took cognizance of the offences and proceed with the case against the petitioners. Crl. Revn. Petition No. 38/13 Page 6 of 12
7. In the instant case, what stands out from the facts and circumstances narrated above is that the respondent No. 2 herein had filed a complaint against the petitioners before the learned SDJM, who, however, instead of proceeding under Section 190 CrPC, forwarded the complaint to the Officer- in-Charge of Rangia Police Station ("the OC" for short) for investigation under Section 156(3) CrPC. On receipt of the complaint, the OC registered Rangia PS Case No. 208/2010 U/s 436/395/397/120-B/143/304/506/511 IPC. After investigation of the case, the police returned the case in FR on the ground of lack of evidence against the petitioners. The learned SDJM, after receipt of the FR, registered the case as GR No. 444/2010 and issued notice to the informant/respondent 2 for her appearance on 19-9-2011. The respondent No. 2 accordingly appeared before the learned SDJM on 19-9- 2011 and filed a protest petition being Petition No. 804/2011 objecting the final report and for allowing her to continue the case as she had other witnesses. What the learned SDJM did was to register CR Case (Naraji) No. 1269c/2011 and fix 25-10-2011 for examination of the informant and witnesses. It may also be noted at this stage that no order was, however, passed by the learned SDJM accepting or rejecting the FR.
8. Thereafter, without accepting or rejecting the FR, the learned SDJM examined the informant and her witnesses and found a prima facie case against the petitioners U/s 143/436/427 IPC and issued summons upon them. As the offence U/s 436 happened to be exclusively triable by the Court of Sessions, the learned SDJM committed the case before the learned Sessions Judge, Kamrup and directed the parties to appear thereat on 22-8- 2012. The learned Sessions Judge thereafter registered the case as Sessions Case No. 342(K)/2012 and made over the case to the learned Additional Crl. Revn. Petition No. 38/13 Page 7 of 12 Sessions Judge (FTC), Kamrup, Rangia for trial. When the learned Additional Sessions Judge found that the learned SDJM did not pass any order on the FR either for accepting or rejecting it, the case was remanded to the learned SDJM to re-submit the case after passing a formal order on the final report. The learned SDJM, after hearing the parties, by the order dated 23-11-2011 accepted the final report and dropped the proceeding and directed that the case before the learned Additional Sessions Judge (FTC), Rangia proceeded with since his predecessor had already registered CR Case No. 1269c/2011 on the basis of the protest petition filed by the respondent No. 2.
9. In my opinion, the learned SDJM has improperly exercised his jurisdiction in passing the impugned order. A Magistrate, who, on receipt of a complaint, is empowered by Section 156(3) CrPC, to order a police investigation where he does not himself issue process at once. This power can be invoked by him even before he takes cognizance of the offence. If the police, after investigation, submitted a final report recommending discharge of the accused on the ground of insufficient evidence, the Magistrate is not bound to accept the final report, but after forming an opinion on the police report, which states that no case was made out against the accused, may nevertheless take cognizance even on such report if there are materials for taking cognizance of an offence. In other words, a Magistrate, even after accepting the FR, can still take cognizance of the offence upon a complaint or protest petition on the same or similar allegation of facts. Section 2(d), CrPC defines the term "complaint' to mean any allegation made orally or in writing to the Magistrate, with a view to taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The expression Crl. Revn. Petition No. 38/13 Page 8 of 12 "protest petition" will thus come within the purview of the term "complaint" if it satisfies all the ingredients mentioned in Section 2(d) CrPC.
10. Therefore, it can now be taken to be the law that whenever a protest petition is treated as a complaint, the Magistrate will have to proceed in accordance with the procedure laid down in Sections 200, 202 and 204 CrPC. Section 190, however, sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of all allegations disclosing commission of a crime with a view to setting in motion to bring the offender to book. Therefore, where initially the complainant had filed a complaint before the Magistrate under Section 190(1)(a), but the Magistrate forwarded the complaint to the police under Section 156(3) for investigation, as in this case, and where the police after investigation return the case in FR on the ground of insufficient evidence, if the complaint nevertheless wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190((1)(a). If it were to be so, the protest petition so filed shall have to satisfy the requirement of a complaint as defined in Section 2(d) CrPC, and that the complaint should contain allegation of facts which constitute an offence or offences, upon which alone the Magistrate can take cognizance under Section 190(1)(a) CrPC. However, if the protest petition does not contain any allegation of facts which can constitute an offence or is without containing all those necessary particulars that a normal complaint has to contain, it cannot be treated a complaint for the purpose of proceeding under Section 200 CrPC. Having understood the correct legal position as I see it, it will now refer to the protest petition filed by the respondent No. 2 before the learned SDJM, which is as under:
Crl. Revn. Petition No. 38/13 Page 9 of 12
"Sir, The information (sic ) named above submits as under:
(1) That the IO of the Rangiya P.S. has perfunctorily
investigated the above case and without proper
investigation and examination of the PW, the IO has
submitted Final Report. The information (sic ) is
accordingly aggrieved.
(2) That I am willing to continue the case as a
complaint one before this Hon'ble Court. I have other witnesses also.
In view of the above, it is prayed that your honour would be pleased to take cognizance as per provisions of Cr.P.C."
11. Even a bare reading of the protest petition reproduced above will show that the statements made therein do not contain any allegation of facts which can be said to constitute any offence punishable under the law. What the respondent No. 2 said therein is to express her dissatisfaction with the manner in which investigation was carried on by the police, which resulted in the submission of the FR and that she wanted to continue the case as a complaint and had other witnesses. That is all. The first learned SDJM did not pass any order on this FR, but proceeded to register CR Case No. 1269c/2011 on the basis of the said protest petition and had examined the respondent No. 2 and four other witnesses and was said to have found a Crl. Revn. Petition No. 38/13 Page 10 of 12 prima facie case under Section 143/436/427 IPC and committed the case before the learned Sessions Judge, Kamrup as Section 436 IPC is exclusively triable by the Court of Sessions. The learned Additional Sessions Judge (FTC), Kamrup, Rangia, before whom the case was ultimately made over, noticed that the learned SDJM did not pass any formal order on the said protest petition. He, therefore, remanded the case before the learned SDJM, Rangia, who ultimately passed the impugned order.
12. On receipt of the record, the learned SDJM accepted the FR and dropped the proceeding, but in the same breath held that his predecessor vide the order dated 19-9-2010 had treated the protest petition to be a complaint petition, proceeded with the same and then took cognizance of the offences punishable U/s 143/436/427 IPC against the petitioners and, as such, the complaint case No. 1269/2011 should proceed from now onwards. He then directed that the record be re-submitted before the learned Additional Sessions Judge (FTC), Rangia. The least I can say is that the learned SDJM apparently did not even bother to peruse the contents of the protest petition and try to refer to the provisions of Sections 2(d), 190(1)(a) or 200 CrPC. He completely overlooked the legal position that he could not take cognizance of any offence unless the facts contained in the protest petition satisfy the requirement of Section 2(d) read with Section 190(1)(a) CrPC. He should not have acted like the rubber stamp of the respondent No.
2. As already noticed, the sine qua non for taking cognizance of an offence is that the complainant in his complaint or protest petition must make an allegation of facts which constitute an offence as defined in Section 2(d) CrPC. Before taking cognizance under Section 190(1)(a), a Magistrate cannot proceed with examination of witnesses under Section 200 CrPC. This legal Crl. Revn. Petition No. 38/13 Page 11 of 12 position has escaped the attention of both the learned Sessions Judge, Kamrup and the learned Additional Sessions Judge, Kamrup, Rangia. Cognizance of the offences punishable U/s 143/436/427 IPC has been taken by the learned SDJM on the protest petition bereft of any allegation of facts constituting such offences. In the view that I have taken, the impugned order suffers from the vice of non-application, which resulted in improper exercise of jurisdiction by the learned SDJM,: this call for the interference of this Court.
13. For the reasons stated in the foregoing, this revision is allowed. The impugned order dated 23-11-2012 passed by the learned Sub-Divisional Judicial Magistrate, Rangia is hereby set aside. The consequential proceedings, if any, shall also stand cancelled. This judgment shall not, however, preclude the respondent No. 2 from taking up fresh legal proceeding against the petitioners in accordance with law. No costs.
JUDGE BI P LAB Crl. Revn. Petition No. 38/13 Page 12 of 12