Calcutta High Court (Appellete Side)
Rajtanu Bhattacharya & Ors vs State Of West Bengal & Anr on 9 April, 2013
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT AT CALCUTTA
APPELLATE SIDE
Criminal Revisional Jurisdiction
Quorum :
The Hon'ble Justice Kanwaljit Singh Ahluwalia
Criminal Revision No.1738 of 2007
Rajtanu Bhattacharya & Ors. - Appellants
-Versus -
State of West Bengal & Anr. - Respondent
Mr. Sekhar Basu Mr. Tapan Deb Nandy Mr. Saryati Dutta ... for the petitioners Mr. Sabyasachi Banerjee ... for the State Mr. Ranjan Roy ... for the O.P. no. 2 Heard on : 11.02.2013 Judgment on : 09.04.2013 Kanwaljit Singh Ahluwalia, J.:- The present petition has been instituted under Section 482 of the Code of Criminal Procedure seeking quashing of First Information Report and other proceedings arising out of Case No. 173 dated 10.04.2007 registered at Rajarhat Police Station for offences under Sections 498A/406/34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
The brief facts relevant for the adjudication of the instant petition are that Rajtanu Bhattacharya, petitioner no.1 was married to Smt. Chinmoyee Mukherjee, opposite party no. 2. The marriage between the parties was solemnized on 09.08.2006. It has been alleged that within a year of the marriage the wife was ill-treated and tortured to such an extent that she was compelled to initiate criminal prosecution against her husband and in-laws. On 10.04.2007, the wife-complainant instituted an application under Section 156(3) of the Code of Criminal Procedure (hereinafter called 'Code') with a prayer to send the same to In-charge Police Station Rajarhat for registration of a criminal case against the petitioners. It was averred in the said application that police had refused to register the case on 03.04.2007.
The application of the wife-complainant came for adjudication before the Chief Judicial Magistrate on 10.04.2007 itself who after perusing and considering the complaint was of the opinion that there are no cogent grounds for sending the complaint under Section 156(3) to the Code of Criminal Procedure. The court opted to take cognizance and was of the opinion that it is proper to examine the complaint under Section 200 of the Code of Criminal Procedure. The case was transferred to the Court of Judicial Magistrate, 2nd Court, Barasat for disposal and 05.05.2007 was fixed as the date for the appearance of the complainant. On that very date that is 10.04.2007, the complainant moved an application for dismissing the complaint for non-prosecution. The said application was ordered to be kept with the record and the complaint was eventually dismissed for non- prosecution on 05.05.2007. In the meanwhile, the complainant-wife approached the police again on 10.04.2007 which registered the impugned First Information Report. Aggrieved against the said action of the opposite parties, the present petition has been filed.
Shri Shekhar Basu, learned counsel for the petitioners has vehemently argued that once the cognizance had been taken by a court which had opted to examine the complaint under Section 200 of the Code it was not legally permissible to register the First Information Report. He has further urged that the act of the complainant-wife is actuated by mala fide as she had not disclosed to the Investigating Agency that she had earlier made a similar complaint to the Court under Section 156(3) of the Code which had refused its prayer and opted to examine it under Section 200 of the Code. He has further urged that the invokation of Section 210 of the Code of Criminal Procedure is not available to wife as the said provision is only applicable when the police case has been registered prior to the institution of the complaint and not vice-versa. He has also submitted that the usage of word investigation in progress in Section 210 implies an investigation lawfully commenced and not an investigation maliciously commenced by way of bypassing judicial proceedings. He has placed reliance upon Goni Sk @ Abdul Soni & Ors v State of West Bengal & Anr, 1979(II) CHN 27; Tajmul Hossain Shah & Anr v State of West Bengal & Anr (2006)1 C Cr LR (Cal) 177 and Samar Mondal & Anr v State of West Bengal & Anr (2007) 2 C Cr LR (Cal) 358.
Shri Ranjan Roy, appearing on behalf of opposite party no.2-wife has strenuously argued that there is no infraction of any provision of the Code of Criminal Procedure. He has submitted that the wife was constrained to withdraw the complaint as it was not possible for her to secure the presence of witnesses from the neighborhood of her in-laws to corroborate the allegations of harassment and torture. He has further urged that the recovery of her istridhan was also not permissible in a complaint case. It has also been submitted that refusal of the Court to direct the registration of a criminal case under Section 156(3) of the Code will not extinguish her independent right to approach the police under Section 154 for registration of a case when the allegations disclose the commission of a cognizable offence. He would also point out that cognizance of an offence more than once is permissible as Section 210 was enacted to deal with such situations. It has also been urged that when the first complaint has not been decided on merits there is no bar or impediment to the second complaint/FIR on the same set of allegations. It has been further stated that the mere omission on the part of the complainant wife to disclose that an earlier complaint had been filed under Section 156 (3) cannot be a ground to quash the FIR as there is no prejudice caused to the petitioner/accused. Lastly, he would urge that the investigation of the case is in progress and at this stage this Court in exercise of its inherent powers cannot quash the proceedings. In support of his contentions he has placed reliance on 'Manipur Administration, Manipur v. Thokchom Bira Singh' AIR 1965 SC 87; 'State of A.P. v. Bajjoori Kanthaiah and Another' AIR 2009 SC 671; 'State of Bihar v. Murad Ali Khan and others' AIR 1989 SC 1(1); 'Kari Choudhary v. Most. Sita Devi and others' AIR 2002 SC 441; 'Sankaran Moitra v. Sadhna Das and Another' AIR 2006 SC 1599; 'Ranvir Singh v. State of Haryana and another' 2009 AIR SCW 6169; 'Jatinder Singh and others v. Ranjit Kaur' AIR 2001 SC 784; 'Poonam Chand Jain and another v. Fazru' AIR 2010 SC 659; and 'Monoranjan Mondal v. Union of India and others' 2005 Cri. L.J.1098.
I have heard the learned counsel for the parties and perused the record. The main questions which arise for the consideration of this Court are as under:
i) Whether it is permissible for the complainant/victim to approach the police for registration of a FIR under Section 154 of the Code of Criminal Procedure after its application under Section 156 (3) has been declined and cognizance has been taken by the Court under Section 200 of the Code.
ii) Whether the withdrawal of complaint by the complainant after the cognizance has been taken under Section 200 serve as a bar to the institution of the fresh complaint or a fresh FIR on the same set of allegations.
iii) Whether the omission on the part of the complainant to disclose that an earlier complaint has been filed on which cognizance had been taken by the Court under Section 200 could be a ground to quash the proceedings.
The first issue which requires consideration is whether the dismissal of the application under Section 156(3) of the Code and taking cognizance under Section 200 would preclude the complainant from approaching the police under Section 154 of the Code. To answer the said issue it would be imperative to outline the scheme envisaged under the Code with respect to registration of a case regarding the commission of a cognizable offence. The scheme envisaged under the Code is as under:
a. Under the code, the information with respect to the commission of a cognizable offence, at the first instance is to be given to the officer in charge of a police station under Section 154 (1) of the Code of Criminal Procedure.
b. In case the officer in charge refuses to record the information, the complainant can approach the Superintendent of Police for redressal of his grievance as provided for under Section 154 (3) of the Code of Criminal Procedure.
c. In the eventuality, the police still refuse to investigate the matter it is open to the complainant/victim to approach the Magistrate under Section 156 (3) of the Code of Criminal Procedure.
Reliance in this regard can also be placed upon the judgment of the Supreme Court of India in the case of Sakiri Vasu v State of U.P. 2008(2) SCC 409 wherein it was held as under:
"In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Criminal Procedure Code, then he can approach the Superintendent of Police under Section 154(3) Criminal Procedure Code by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Criminal Procedure Code before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation."
Thus, it is apparent that the Magistrate is approached under Section 156(3) only when the police does not discharge its statutory function to register an FIR when the commission of a cognizable offence is brought to its notice. To my mind, the Code does not impose any limitation that in the eventuality the Magistrate has been approached under Section 156(3) of the Code, the complainant is precluded from approaching the officer-in-charge under Section 154 (1) of the Code. To illustrate, an incident takes place, in which many persons receive injuries and one person due to receipt of fatal injury expires, another is unfit to make statement to police for long and third injured who receives simple injuries files complaint and gets the same dismissed for non- prosecution because of collusion with accused. Will it preclude injured, who later becomes fit or relation of deceased to lodge FIR. To above example, answer in plane words is 'No'. Neither of the parties has cited any precedent to the effect that mere invocation of Section 156 (3) of the Code will extinguish the statutory right of the complainant/victim to approach the police under Section 154. The only logical conclusion is that the right to approach and represent to the police officers to register a case with respect to the commission of a cognizable offence is not extinguished merely because the Court has been approached under Section 156(3).
Further, mere refusal of the Court to issue a direction under Section 156(3) will ordinarily by itself not be a bar to approach the police under Section 154 of the Code. However, when the Court has opined that it not inclined to issue a direction as no offence is made out or prima-facie the contents of the complaint do not disclose the commission of a cognizable offence in such an eventuality it will not be open to the complainant to approach the police under Section 154 of the Code as a finding has been returned on the merits of the case. In a case like the one at hand, where no finding has been returned on the fact whether the ingredients of the complaint disclose the commission of a cognizable offence and the court in its wisdom has opted to take recourse to the alternative route available under Section 200 of the Code the same in itself will not extinguish the statutory right available to the complainant/victim. It is pertinent to mention herein that the present complainant/wife had approached the Court under Section 156 (3) as the police in the first instance had not registered the case. The grievance of the wife was confined to the registration of the case and she had not prayed for taking cognizance under Section 200 of the Code. It is not in dispute that the no finding was ever returned to the effect that the complaint does not disclose the ingredients of a cognizable offence. Thus, merely because the court opted to treat it as a complaint case will not debar the complainant from approaching the police to register the case. In a given situation like the present case, it may not be possible for a lady to secure the presence of all witnesses nor may she have resources to conduct the prosecution on her own. In such an eventuality she cannot be compelled to pursue with the complaint case especially when neither the police nor the court has opined that no cognizable offence is made out. Approaching the court under Section156 (3) is one of the many alternatives available to the complainant on the refusal of the police to register the case. Merely because the complainant has exhausted one avenue will not in itself be a bar in taking recourse to the other alternatives except when there is a judicial finding in declining the application under Section 156 (3) on the merits of the complaint as indicated above.
Another argument advanced by Shri Basu that once the cognizance had been taken on the basis of a complaint, no second cognizance can be taken though attractive at the first flush on a closer scrutiny cannot be accepted. It is pertinent to mention that Code itself contemplates a situation wherein on the same set of allegations both the complaint case and the police case can be set to motion. It would be apposite to reproduce here Section 210 of the Code which reads as under:
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. - (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
The very fact that a detail procedure has been outlined when the complaint case and police case pertain to the same offence is indicative of the fact that the Code itself contemplates the simultaneous institution of the police case and the complaint case with respect to the same offence and prescribes a mechanism to deal with such a situation. Even the Supreme Court, in the case of State of Bihar v Murad Ali Khan AIR 1989 SC 1(1), observed that Section 210 of the Code seeks to obviate the anomalies that might arise from taking the cognizance of the same offence more than once. Further, assuming the complainant had proceeded with the complaint under Section 200 of the Code without withdrawing it and at the same time pursuing the police case such a situation would have been adequately dealt under Section 210 of the Code.
The argument of second cognizance being barred also cannot be accepted in view of the provision of Section 210 of the Code which recognizes the cognizance of an offence twice. For instance, a complaint is instituted and the court takes the cognizance of the offence and proceeds to record the statement of witnesses. During the said process, it is brought to the notice of the Court that investigation is in progress as per the mandate of Section 210 of the Code the proceedings have to be stayed and the report is to be called from the police. In the eventuality the report is presented under Section 173 of the Code the Magistrate is competent to take cognizance on the basis of the said report and both the complaint case as well as the police case will be treated as if they are based on police report. In this situation the cognizance is taken twice, once on the basis of the complaint under Section 190(1)(a) of the code and the second time on the basis of the final report under Section 190(1)(b) of the Code. Thus, the code contemplates the cognizance of an offence on more than one occasion and also provides a mechanism to deal with such an anomaly.
However, it has been urged on behalf of the petitioners that the complainant wife cannot take the refuge under the provision of Section 210 of the Code as it is available only when the police case has been set into motion first and not vice-versa. In support of their contention reliance has been placed on a decision of the Division Bench of this Court in the case of Goni Sk (supra) wherein it was observed as under:
"It has been rightly contended on behalf of the petitioners that the provisions of Section 210 (1) of the Criminal Procedure Code are not applicable because the police did not move in the matter first."
The perusal of the said decision would indicate that in the said case a complaint had been instituted before the SDJM Kandi against seventeen persons. The learned Magistrate forwarded the complaint to Burdwan Police Station for registration of an FIR. The case was investigated by the police who presented the charge-sheet against six accused. Then a fresh complaint was instituted against all seventeen persons which was dismissed by the Court on the ground that if sufficient material came on record during the course of trial the Court had ample power to take cognizance against all the accused. The said order was upheld by this Court by considering the scope and ambit of Section 319 of the Code which empowers the Court to add an additional accused if during the course of trial evidence comes on record against persons who are not facing the trial. The scope and ambit of Section 210 of the Code was never the issue in dispute before the Court which had decided the controversy by adverting to the provision of Section 319 of the Code. Thus, the passing observations made by the Court which have been reproduced herein above can at best be termed as an obiter dicta and will not be binding upon this Court. Reliance in this regard can be placed on the decision of Supreme Court in the case of Arun Aggarwal v. State of Madhya Pradesh AIR 2011 SC 3056 wherein the following discussion was made:
" In State of Haryana v. Ranbir, (2006)5 SCC 167, this Court has discussed the concept of the obiter dictum thus :
"A decision, it is well settled, is an authority for what it decides and what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207). It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Divisional Controller, KSRTC v. Mahadeva Shetty (AIR 2003 SC 4172 :
2003 AIR SCW 3797))"
In Girnar Traders v. State of Maharashtra, (2007)7 SCC 555 : (AIR 2007 SC 3180 : 2007 AIR SCW 5782), this Court has held :
"Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents."
In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment."
In my considered opinion, the wording of Section 210 of the Code does not in any manner indicate that it would come into vogue only when the police moves in the matter first. It is a cardinal principal of statutory interpretation that while interpreting a statutory provision the courts have to give effect to the literary interpretation and not to add or delete words to a provision which the legislature in its wisdom did not provide. Even otherwise, the Supreme Court in the case of Sankaran Moitra (supra) had an occasion to consider the scope and ambit of Section 210 and while discussing the said provision threadbare had observed as under:
"The object of enacting Section 210 of the Code is three-fold :
(i) it is intended to ensure that private complaints do not interfere with the course of justice;
(ii) it prevents harassment to the accused twice; and
(iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once.
The Joint Committee of Parliament observed :
"It has been brought to the notice of the Committee that sometimes when serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section
173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice."
In the said case, the Supreme Court then enumerated the following conditions for invocation of Section 210:
i) There must be a complaint pending for inquiry or trial;
(ii) Investigation by the police must be in progress in relation to the same offence;
(iii) A report must have been made by the police officer under Section 173 of the Code; and
(iv) The magistrate must have taken cognizance of an offence against a person who is accused in the complaint case.
It is thus apparent that the Hon'ble Supreme Court in its decision has no where qualified the applicability of Section 210 of the Code to cases where the police moved prior in time. It will be pertinent to mention that in the said decision though there was a divergence of opinion between the Hon'ble Judges with respect to application of Section 197 of the Code in the facts and circumstances of the case, the above observations which have been culled from the minority opinion cannot be wiped off as the majority opinion did not dwell upon the scope and ambit of Section 210 of the Code.
In view of the above discussion, I decide the first issue against the petitioners and hold that the mere rejection of an application under Section 156 (3) of the Code and taking the cognizance of the complaint under Section 200 of the Code will not debar the complainant to approach the police under Section 154 of the Code until and unless the Court while declining the application under Section 156 (3) commented on the merits of the allegations in the complaint to deny the relief to the complainant.
The second issue which arises for the consideration of this Court is whether the dismissal of the first complainant as withdrawn will operate as a bar to the second complainant/FIR on the same set of allegations. This issue has been fairly well settled by a long line of precedents wherein it has been held time and again that a second complaint on the same facts and circumstances is maintainable provided that the first complaint has not been adjudicated on the merits of the case. For the purposes of brevity reference is being made to one decision of the Supreme Court in the case of Jatinder Singh v. Ranjit Kaur 2001(2) SCC 570 wherein it was held as under:
"There is no provision in the Code or in any other statute which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that "the dismissal of a complaint or the discharge of an accused is not an acquittal for the purpose of this Section." However, when a Magistrate conducts an inquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance."
In the present case it is not in dispute that neither the first complaint resulted in acquittal nor discharge of the petitioner-accused nor the Court ever had the occasion to consider it on merits and enquire into it under Section 202 of the Code. Rather the perusal of the record indicates that on the date when the cognizance was taken an application was moved for withdrawal of the complaint and the same was permitted on the next date. Therefore, the registration of an FIR on the same set of allegations is not barred especially when the complaint never came to be considered on its merits by the trial court.
The third issue which requires consideration is whether the omission on part of the complainant/wife to bring to the notice of the investigating agency that the application under Section 156 (3) of the Code and the cognizance had been taken under Section 200 of the Code would be a ground to quash the proceedings. Learned Counsel for the petitioners has placed reliance on two decisions of this Court in the case of Samar Mondal (supra) and Tajmul Hossain Shah (supra) to urge that this tantamount to concealment and on this ground alone the proceedings are liable to be quashed.
In the case of Samar Mondal (supra) the complainant had instituted a complaint with a prayer for sending the complaint to the police for investigation under Section 156 (3) of the Code. The learned Magistrate did not accept the prayer for sending it to the police and took the cognizance himself. The learned magistrate further adjourned the case to examine the witnesses under Section 200 of the Code. The complainant by concealing the factum of the institution of the earlier complaint and the refusal of the prayer under Section 156 (3) instituted another complainant for the same incident which was sent by the Magistrate for the registration of the case on which the FIR came to be registered despite the fact that the first complaint was very much in existence when the second complaint had been filed. This Court was of the considered view since the FIR came to be registered by practicing fraud upon the Court, the proceedings are liable to be quashed.
In the case of Tajmul Hossain Shah (supra) on the basis of the same incident three complaints came to be filed by the complainant. In the first complaint process had already been issued to the accused, while cognizance had been taken in the second complaint when third complaint came to be filed with a prayer to send it to the police under Section 156(3) on the basis of which FIR came to be registered. This Court was of the view that there has to be a limit to a number of complaints which can be filed over the same incident and since the FIR had been registered by suppressing material facts from the Court it was please to quash the FIR.
However, the facts of both the cases are materially different from the case at hand. In both these cases FIR came to be registered on the basis of the orders passed by the Court and the orders had been secured by fraud. The above said decisions would have been applicable to the case at hand if the complainant had instituted a second complaint before the court and succeeded in getting the application under Section 156 (3) allowed by concealing the fact that its earlier application had been dismissed. In the instant case, as has been discussed above the complainant availed its parallel remedy which was independent of the one available under Section 156(3). In such circumstances neither of the two cited decisions would come to the aid of the petitioners.
Further, it has been well settled by a catena of decisions that mere mala fide on the part of the complaint would not be a ground to quash the proceedings if the complaint/FIR prima facie discloses the commission of a cognizable offence. Moreover the facts of the instant case are closer to the decision of the Supreme Court in the case of Jatinder Singh (supra) wherein the first complaint had been dismissed in default. While instituting the second complaint it was not averred that the earlier complaint had been dismissed as withdrawn. Rejecting the contention that the complaint is liable to be quashed on this ground alone, the Supreme Court observed as under:
"We do not find much force in the next contention that the complainant lacked bona fides as he suppressed the fact of dismissal of the first complaint. We cannot overlook the fact that the second complaint was filed before the same Magistrate who dismissed the first complaint, and that too was done within a short interval. Even otherwise, nothing would turn out from the mere fact that the complaint did not contain an averment that the first complaint was dismissed for default."
Furthermore, an offence against women, as per Scheme of the Code, is an offence against the State. An offence, which is against public policy shall neither obliterate nor go unpunished because of the conduct of the complainant.
In view of the above, I hold that the FIR is not liable to be quashed merely on the omission on the part of the complainant to disclose that the earlier complaint had been dismissed under Section 156 (3) of the Code.
No other point was urged or argued before me.
Resultantly the present petition is dismissed. However, it will be pertinent to mention that the investigation in the instant case has remained stayed for about six years because of the pendency of the instant petition. This Court expects that the Investigating Agency will abide by the mandate of Section 173 (1) of the Code and conclude the investigation at the earliest uninfluenced by any observation made in this order which were only for the purposes of adjudicating the instant petition.
(Kanwaljit Singh Ahluwalia, J.)