Calcutta High Court (Appellete Side)
Arijit Sarkar vs Monosree Sarkar & Ors on 9 January, 2017
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.R.R. No. 809 of 2015
Arijit Sarkar
-vs-
Monosree Sarkar & Ors.
For the Petitioner : Mr. Debasish Roy,
Mr. Siladitya Sanyal,
Mr. Sandipan Ganguly,
Mr. Somopriyo Chowdhury,
Mr. Rajiv Lochan Chakraborty,
Ms. Vaswati Chakraborty,
Mr. Debapratim Guha,
Mr. Priyanjit Kundu.
For the Opposite Party No.7 : Mr. Partha Pratim Das
For the Opposite Party Nos. 1 to 6: Mr. Dipanjan Chatterjee,
Mr. Anirban Dutta.
Heard on : 23-12-2016 & 24-12-2016
Judgment on : 09-01-2017
Indrajit Chatterjee, J.:- This is an application under Section 401 read with
Section 482 of the Code of Criminal Procedure, 1973 where this petitioner has
assailed the order dated 18-12-2014 passed by the learned Additional Sessions
Judge, 2nd Court, Barasat, North 24-Pargnas in Criminal Appeal No. 23 of 2013
and thereby affirmed the order dated 27-08-2013 passed by the learned Chief
Judicial Magistrate, North 24-Parganas in C. Case No. 1553 of 2013 by virtue of
which the application under Section 195(1)(b)(i) read with Section 340 of the
Code of Criminal Procedure, (hereinafter called as the said Code) was rejected.
The fact relevant to adjudicate the matter can be stated, in brief, thus :
That Barasat P.S. Case No. 1946 dated 10-10-2011 was started at the
behest of the brother of the present petitioner under Sections 341/323/330/379
etc. of the Indian Penal Code in which the opposite party nos. 1 to 6 were made
accused.
The matter was investigated by one S.I., Danesh Ali Dafadar (opposite
party no. 7) who was then attached to Madhyamgram Investigation Centre under
Barasat Police Station, North 24-Parganas. As per report submitted by the said
Investigating Officer dated 31-03-2012, the said Investigating Officer submitted
NCR No. 89 of 2012 under Section 506 against the accused persons being the
opposite party nos. 1 to 6 to face trial.
One paragraph was used in that report in final form which runs thus :
"Excepting accused Arijit Sarkar all the above noted accused of both the
cases surrendered in the ld. Court but accused Arijit Sarkar fled away to Brajil.
But with the help of interpol the accused brought to India in the ld. Barasat Court
and released on bail".
This report of the Investigating Officer which shows that this petitioner fled
away to Brazil and could be brought to India with the help of Interpol is the main
issue before this Court. As per this petitioner, this assertion made by the
Investigating Officer is palpably false.
One application was filed by the present petitioner before the learned Chief
Judicial Magistrate, North 24-Parganas at Barasat, wherein this petitioner
prayed for before the said Court to initiate an inquiry as contemplated under
Section 340 read with Section 195 of the Code as against the opposite party nos.
1 to 7 before this Court and it was further prayed to lodge complaint on that
score and to forward the same to the competent Magistrate for trial of the
accused, i.e. the Investigating Officer of that Barasat P. S. Case, referred to
above.
The copy of this application as handed over by Mr. Roy, learned Advocate
appearing on behalf of the petitioner, is taken on record.
The said application was disposed of by the said learned Chief Judicial
Magistrate as per order dated 27-08-2012 (running page no. 31, annexure P-2). It
may be mentioned here that W.P. No. 8051(W) of 2012 has already been disposed
of by this Court. The server copy of the order dated 16-12-2016 as passed in that
writ petition is also taken on record as supplied by Mr. Roy.
The said petition, referred to above, Section195 read with Section 340 of
the Code was rejected at that stage by the learned Trial Court on the ground that
Section 195(1)(b)(i) of the Code cannot apply as the alleged offence under Section
211 of the I.P.C. was not committed in relation to a proceeding in any Court. The
learned Trial Court further observed that such offence was not committed as
because no evidence was taken and no document was produced before the court.
One appeal was preferred before the learned Sessions Judge, Barasat,
which was registered as Criminal Appeal No. 23 of 2013 and that was disposed of
by the learned Additional Sessions Judge, 2nd Court, Barasat, North 24-
Parganas, on 17-12-2014 and that is the impugned order before this Court. The
learned Appellate Court endorsed the views of the learned Trial Court and
dismissed the appeal. The opposite party nos. 1 to 7 are contesting this revisional
application.
It is the submission of Mr. Roy, learned Advocate appearing on behalf of
the petitioner, that both the learned Trial Court and the learned First Appellate
Court erred in interpreting Section 195 of the Code as submission of a police
report under Section 173 is within the purview of a proceeding. He took me to
Section 195 of the Code and also the definition of judicial proceeding as is there
in Section 2(i) which has given an inclusive definition of judicial proceeding
which may include any proceeding in the course of which evidence is or may be
legally taken on oath. He also took me to Section 3 of the Indian Evidence Act to
establish his claim that evidence means and includes all documents including
electronic records produced for the inspection of the Court and such documents
are called documentary evidence. Thus, Mr. Roy concluded his argument by
saying that the report as submitted under Section 173 may be treated as a
document submitted in a proceeding and as such, the learned Trial Court and
the learned First Appellate Court came to a wrong decision in rejecting the
application filed by his client under Section 195 read with Section 340 of the
Code.
On behalf of the opposite party nos. 1 to 6, it is submitted by Mr.
Chatterjee, learned Advocate, that his clients had no role in the matter as
whatever report was submitted to Court, was submitted by the Investigating
Officer. He also took me to Section 211 of the I.P.C. to convince this Court that
the said paragraph cannot made any offence under that section.
On behalf of the opposite party no.7, the Investigating Officer of that
Barasat P.S, it is submitted by Mr. Das, learned Advocate, there is a history
behind this revisional application. That two brothers, namely, this petitioner and
Prasenjit Sarkar married two daughter of Sukamal Khan respectively being
Gitosree Sarkar and Monosree Sarkar (opposite party nos. 1 and 2). He further
submitted that both the two wives were driven out and two separate cases were
filed under Section 498A etc. of the I.P.C. by these two sisters/wives being
Barasat P.S. Case No. 1014 dated 22-05-2010 and Barasat P.S. Case No. 1015
dated 22-05-2010. Both the investigations resulted in submission of charge
sheet.
Mr. Das further submitted that his clients had no role in issuance of 'look
out notice' as it was taken up by the Superintendent of Police, North 24-Parganas
and FRRO (Foreigners Regional Registration Officer) is the only authority to issue
such 'look out notice'. He claimed that when this petitioner came from Brazil, he
has intercepted in Delhi Airport and he had to take transit bail from Delhi Court
and later on, he got bail from Barasat Court. Mr. Das further contended that
recitals of the said paragraph in question are all true and no mis-statement was
made. He supplemented his argument by saying that this report of opposite party
no. 7 cannot be treated neither as a document and nor as evidence and as such,
there cannot be any inquiry under Section 195 of the Code vis-à-vis Section 340
of the said Code. He reiterated his argument by saying that this paragraph as
used by the Investigating Officer cannot be the basis of the subject matter of a
case under Section 211 of the I.P.C. He further contended that no FRT was
submitted by the Investigating Officer but only NCR was submitted for trial under
Section 506 of the I.P.C.
In reply, Mr. Roy took me to page no.10 of the application under Section
195 etc. of the Code to say that in paragraph no. 14 not only Section 211 has
been put but there are other sections like Sections 193/209/499 and 120B of the
I.P.C. He also contended that the benefit of the report submitted under Section
173 has gone in favour of the opposite party nos. 1 to 6.
Thus, the question to be decided by this Court in this revisional application
will be as follows :
1) whether a report submitted under Section 173 of the Code can be
treated as a document or evidence;
2) whether under Section 195 of the Code can be pressed into action in
such a situation;
3) whether in view of Section 3 of the Indian Evidence Act, this report
under Section 173 of the Code can be treated as documentary evidence;
and
4) whether the submission of a proceeding under Section 173 of the code
can be treated to have been submitted before a judicial proceeding or
proceeding in view of Section 195(1)(b)(i) of the Code.
Before I proceed further, I like to quote Section 2(i), the heading of Section
195 including the Clause (1)(b)(i) of the Code and the word 'Evidence' as defined
in Section 3 of the Indian Evidence Act, which runs thus:
"2(i) "judicial proceeding" includes any proceeding in the course of which
evidence is or may be legally taken on oath".
"195. Prosecution for contempt of lawful authority of public servants,
for offences against public justice and for offences relating to documents
given in evidence".
"1(b)(i) of any offence punishable under any of the following sections of the
Indian Penal Court (45 of 1860), namely, sections 193 to 196 (both inclusive), 199,
200, 205 and 211 (both inclusive) and 228, when such offence is alleged to have
been committed in, or in relation to, any proceeding in any Court, or".
"Evidence". - "Evidence" means and includes -
(1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry;
Such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of
the Court,
Such documents are called documentary evidence".
I like to discuss the point no.4 earlier before discussing point nos.1, 2 & 3
for the brevity of discussion.
Regarding point no.4: The question I am to answer as to whether the
submissions of a challan before the Magistrate having jurisdiction under Section
173 of the Code can be treated as a part of judicial proceedings. Here in the
instant case before this court this opposite party no.7 submitted challan before
the Chief Judicial Magistrate, North 24 Parganas at Barasat under Section 173 of
the Code wherein he made a disputed remark about which I have already stated.
On this point this court can rely upon the single bench decision of the Madhya
Pradesh High Court as reported in 1993 CriLJ 495 (Shrichand vs. State of
Madhya Pradesh) wherein the single judge interpreted the expression "Judicial
Proceeding" as defined in clause (i) of Section 2 of Criminal Procedure Code. The
relevant portion of the judgment is quoted below:
"Para 8 ..................................................... The definition is that judicial
proceeding includes any proceeding in the course of which evidence is or may be
legally taken on oath. It is obvious that it is not necessary that the Judge or
Magistrate concerned must be actually recording evidence in order to amount to
judicial proceeding. In fact, occasion to record evidence may not actually arise
and still the proceeding may amount to judicial proceeding. The test is whether
in the course of those proceedings evidence may be legally taken on oath or not.
In my view presenting of challan is the first step in the judicial proceeding
wherein occasion may subsequently arise to record evidence on oath. On
receiving challan the Magistrate has to decide judicially whether to take
cognizance of the offence thereon or not. The law does not prescribe any
particular method of presentation of challan, namely, that it should be presented
by any particular police official. It is clear to me that when the challan was being
presented before the learned Civil Judge, who was acting as a Judicial Magistrate
at that time, the first step in the judicial proceeding was taking place and hence
the Judge was sitting in judicial proceeding. There is thus no force in the second
point raised by the learned counsel."
Thus, this point no.4 is answered in the affirmative and I say that reports
submitted under Section 173 of the Code was perfectly submitted in a judicial
proceeding within the meaning of Section 2 (i) and Section 195 (1) (b) (i). It may
also be mentioned that sub-section (b) (i) of Section 195 of the Code has
contemplated not only judicial proceeding but also in relation to any proceeding
in any court. In the instant case before the floor of this Court the proceeding is
being continued before the Chief Judicial Magistrate, North 24 Parganas at
Barasat and I reiterate that the said proceeding is perfectly a judicial proceeding.
Regarding point no.1: In view of Section 3 of the Indian Evidence Act this
court is satisfied that the reports submitted before the court is no doubt a
document but it cannot be treated as evidence unless it is proved by adducing
oral evidence. Thus, this point no.1 is answered accordingly.
Regarding point no.2: Section 195 of the Code is in Chapter XIV of the
Code. This Chapter deals with condition requisite for initiation of a proceeding. It
is true that Section 195 deals with offences against the public justice also.
Section 340 of the Code has laid down a procedure what the court will do where
administration of justice has been affected. It has prescribed a procedure for
tackling such a situation after making such preliminary inquiry. This is one
procedural law which has supplemented Section 195 of the Code. In view of the
decision of this court while answering point no.4 this court is satisfied that in the
situation as stated while discussing the fact certainly Section 195 of the Code
can be pressed into action along with Section 340 of the Code.
The trial court will decide after making preliminary inquiry as to whether
the recital in the report submitted by the opposite party no.7 as pointed out by
Mr. Roy and duly noted by me in Page no.2 of this judgment is based on facts or
not and whether any criminal prosecution can be initiated. Thus, this point no.2
is answered accordingly.
Regarding point no.3: It is needless to say that the reports submitted
under Section 173 of the Code are perfectly a document within the meaning of
Section 3 of the Indian Evidence Act. Thus, this court is not at one with the
learned trial court and also the First Appellate Court that unless evidence is
recorded in a proceeding there cannot be any application of Section 195 and 340
of the Code. However, the learned trial court will be free to assess whether the
paragraph I repeat "Excepting accused Arijit Sarkar all the above noted accused of
both the cases surrendered in the ld. Court but accused Arijit Sarkar fled away to
Brazil. But with the help of Interpol the accused brought to India in the ld. Barasat
Court and released on bail" can constitute an offence punishable under Section
209/211/193/499read with Section 34 of the Indian Penal Code and 120 B of the said Code and whether there was any criminal conspiracy or common intention was played while committing such offence.
Thus, in view of discussion so long made the impugned order passed by the learned Additional Sessions Judge, 2nd Court, North 24 Parganas at Barasat in Criminal Appeal No.23 of 2013 dated 27.08.2013 is hereby set aside along with the order passed by the Chief Judicial Magistrate. The matter be heard by the Chief Judicial Magistrate, North 24 Parganas afresh as to the application filed by this petitioner under Section 195 (1) (b) (i) and 340 of the Code without being influenced by any observation made by this court or of the First Appellate Court.
This criminal revisional application is hereby allowed on contest. There will be no order as to costs.
Office is directed to communicate this order to the learned trial court that is the Chief Judicial Magistrate, North 24 Parganas at Barasat in C. Case No.1553 of 2013 and also to the First Appellate Court being the Additional Sessions Judge, 2nd Court, North 24 Parganas at Barasat in connection with Criminal Appeal No.23 of 2013.
Certified copy of this judgment, if applied for, be given to the parties as per rules.
(Indrajit Chatterjee, J.)