Research › Browse › Judgment

Calcutta High Court · body

1998 DIGILAW 39 (CAL)

P. v. Venkateswaran VS State

1998-01-29

Dibyendu Bhusan Dutta

body1998
JUDGMENT D.B. Dutta, J. : The instant revisional application under section 482 of the Criminal Procedure Code is for quashing of the proceeding being C.Cr. Case No. 2448 of 1989 arising out of section U2 (Lake P.S.) Case No. 302 dated 9.7.89 and pending before the Third Court of Judicial Magistrate, Alipore. 2. The opposite party No.2 filed a complaint before the Magistrate against the petitioners on the following allegations. The complainant opposite party No.2 is the absolute owner of premises No. 21/2, Ashwini Dutta Road, P.S. Lake, Calcutta. She allowed the petitioners Nos. 2 and 3 to occupy the second floor flat within the premises with its furniture and fixtures on payment of occupation charges @ Rs. 3,000/- per month. After taking possession of the flat, the petitioner No. 2 made payments for some months, but thereafter, refused to make the payments. The petitioners Nos. 2 and 3 also threatened to sell the furniture and fixtures. The opposite party No.2 requested them to allow her to take back the furniture of the flat, but they refused to accede to her request. The petitioners Nos. 2 and 3 thus dishonestly misappropriated the furniture and fixtures of that flat. The complainant also requested them to vacate the flat, but the petitioners Nos. 2 and 3 refused to do so. The petitioner No. 1 was allowed to occupy a flat on the first floor of the premises by the complainant on condition of making payments of occupation charges, but he did not make any payment to the complainant. On 5.9.88 and 20.9.88, all the three petitioners, accompanied by antisocial elements, criminally trespassed into the living room of the complainant opposite party and forcibly made her sign papers which can be converted into valuable security, under the threat of assault and death. The petitioners temporarily shifted from the respective flats by keeping them under lock and key. On 11.4.89 at 4 P.M., the petitioner No. 1 abused the complainant in filthy language and threatened to kill her when she was sitting in her car in front of the premises. The petitioners have, thus, committed offences punishable under sections 386/406/451/420/506 of the IPC. 3. The above complaint was forwarded by the ld. Magistrate to the O.C. Lake P.S. under section 156(3) Cr.P.C. on the basis of which the Lake P.S. Case No. 302 dated 9.7.89 was registered. The petitioners have, thus, committed offences punishable under sections 386/406/451/420/506 of the IPC. 3. The above complaint was forwarded by the ld. Magistrate to the O.C. Lake P.S. under section 156(3) Cr.P.C. on the basis of which the Lake P.S. Case No. 302 dated 9.7.89 was registered. Police investigated the case and submitted the chargesheet under section 451 of the IPC against all the petitioners. After taking of cognizance the case was transferred to the Third Court of Judicial Magistrate, Alipore for disposal. On 20.8.92, the petitioners were examined under section 251 Cr.P.C. They pleaded not guilty and claimed to be tried and the ld. Magistrate was pleased to fix 5.12.92 for evidence. 4. At this stage, the petitioners came up with the present revisional application setting out the following grounds. The continuance of the aforesaid proceeding before the Magistrate is a gross abuse of the process of the Court and as such, the proceeding is liable to be quashed. The investigating agency submitted its report on the basis of the complaint forwarded by the ld. Magistrate without conducting any investigation. The allegation of house trespass is false. Section 451 postulates two kinds of punishment. If the house trespass is for committing any offence punishable with imprisonment, the term of imprisonment for such trespass may extend to two years; but if the house trespass is intended to be committed for the purpose of committing theft, the term of imprisonment may extend to seven years. If the house trespass is punishable with two years' imprisonment, the case may be tried in a summary way, while if it is punishable with seven years' imprisonment, it is to be tried according to warrant case. The materials on record would suggest that the second part of section 451 of IPC would be attracted here with the result that the ld. Magistrate erred in law by adopting the procedure meant for trial of a summons case and as such, the proceeding is liable to be quashed. 5. During the hearing of this revisional application, the above grounds were given a complete go by and the legality of the proceeding was assailed on behalf of the petitioners altogether on a different ground namely that the cognizance that was taken in this case by the ld. 5. During the hearing of this revisional application, the above grounds were given a complete go by and the legality of the proceeding was assailed on behalf of the petitioners altogether on a different ground namely that the cognizance that was taken in this case by the ld. Magistrate was bad and illegal by reason of the fact that it was taken without consideration of the documents and statements under section 173(5) Cr.P.C. 6. From the lower court record, it would appear that by a composite order dated 13.6.90 the ld. Magistrate took the cognizance and issued the process against the petitioners. The order would go to suggest that on that date, the challan was received by the ld. Magistrate along with the case diary against the petitioners who were shown as absconders in the challan. The order further shows that the I.O. made a prayer before the Magistrate for issuing process against the petitioners. 7. The ld. Magistrate took cognizance and issue warrant of arrest against the petitioners fixing 5.12.90 for supply of copies as well as execution report of the warrant of arrest. Section 190(1)(b) of Criminal Procedure Code enables a Magistrate to take cognizance of an offence on a police report of facts constituting such offence. The term "police report" as defined in section 2(r) of the Code means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173. Sub-section (2) of section 173 provides that a police report is to be forwarded to the Magistrate empowered to take cognizance of an offence upon a police report in the form prescribed by the State Government stating certain particulars as enumerated in sub-clauses (a) to (g) of clause (i) of the sub-section. It has not been argued on behalf of the petitioners that the challan submitted in the instant case does not contain the aforesaid particulars or for that matter, does not fulfil the requirements of sub-section (2) of section 173 and on perusal of the challan, I find that it does contain all the particulars required to be stated within the meaning of sub-clauses (a) to (g) of clause (i) of sub-section (2) of section 173. It also discloses the basic facts sufficient to constitute prima facie commission by the petitioners of an offence of house trespass punishable under the first part of section 451 IPC of which the cognizance has been taken by the ld. Magistrate against the petitioners. Even then the legality of this cognizance is sought to be assailed on behalf of the petitioners only for the reasons that there is nothing in the challan itself to indicate that the documents and statements as contemplated under clauses (a) and (b) of sub-section (5) of section 173 which are required to be forwarded along with that challan were forwarded along with the challan and the order dated 13.6.90 whereby the ld. Magistrate took the cognizance does not indicate that the said documents and statements under section 173(5) were at all placed before or considered by the Magistrate at the time he took cognizance. 8. It was submitted on behalf of the petitioners that unless the documents and statements under section 173(5) are considered by the Magistrate, the cognizance cannot be said to have been taken by the Magistrate on due application of his mind and as a result, such a cognizance would be bad and illegal and would be liable to be quashed. Several Single Bench decisions were cited on behalf of the petitioners on this point. The decisions are reported in 96 CWN 606 : Satyaranjan Pal vs. State of West Bengal, 1995 (4) Crime 418 : Birendra Kr. Roy vs. Hindustan Fertilizer Corpn. Ltd., 1996 (II) CHN 147 : Pradip Kr. Patra vs. The State of West Bengal and 1996 (II) CHN 362 : R. G. Brealey vs. The State of West Bengal. 9. On behalf of the complainant opposite party, it was urged that the aforesaid four decisions were all judgments per incuriam and can be ignored in view of S.N. Musadi's case reported in 1980 Cri. LJ. 227 (SC). 10. I have carefully perused the decision of the Supreme Court in S.N. Musadi's case. It unambiguously lays down the proposition that for taking cognizance of an offence on a police report under section 190(1)(b) of Cr.P.C., a Magistrate is not at all required to look into or consider the documents and statements within the meaning of section 173(5) even when the police report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence. It is true that in respect of a police report to which section 170 applies, the police officer submitting the report is under a statutory obligation to forward along with the report all documents and statements as contemplated under sub-section (5) of section 173 and accordingly, the documents and statements under section 173(5) can very well in a wider sense be said to form part of the police report. But nevertheless the police report as defined in section 2(r) of the Code and strictly within the meaning of section 173(2) minus the documents and statements under section 173(5) Cr.P.C. can very well constitute the foundation for cognizance to be taken by a Magistrate under section 190(1)(b). Such a view is fully fortified by not only S.N. Musadi's case (supra) but also the later three-Judge Bench decision of the Supreme Court reported in 1995 Supreme Court Cases (Cri) 16. 11. S.N. Musadi's case does not appear to have at all been referred to or considered in 1996 (II) CHN 147 and 1996 (II) CHN 362 . Reference to Musadi's case was, no doubt, made in 96 CWN 606 and 1995 (4) Crimes 418. Wharton's Law Lexicon 14th Edition at page 754 defines the term 'per incuriam' in the following words "through want of care" and "an order of the Court obviously made through some mistake or under some misapprehension is said to be made per incuriam". In AIR 1994 Calcutta 205; Murari Kumar Saraf vs. Jagannath Shaw, two Supreme Court decisions identifying the judgments which are per incuriam were referred to wherefrom it would appear that where by obvious inadvertence or over sign a judgment fails to notice a plain statutory authority running counter to the reasoning and the result reached, it may not have the sway of binding precedents. In AIR 1988 SC 1531 , it was held that per incuriam are those decisions given in ignorance or forgetfulness of some authority binding on the Court concerned so that in such cases some part of the decisions or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. In AIR 1988 SC 1531 , it was held that per incuriam are those decisions given in ignorance or forgetfulness of some authority binding on the Court concerned so that in such cases some part of the decisions or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. Going by the term 'per incuriam' as given in Wharton's Law' Lexicon as referred to above and the decisions reported in AIR 1994 Calcutta 205, I can unhesitatingly hold that the four Single Bench decisions of this Court relied upon on behalf of the petitioners and referred to above, are decisions per incuriam and as such, are of no avail to the petitioners. 12. We must not be oblivious of the fact that the expression 'cognizance' has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. When section 190(1)(b) speaks of taking of cognizance of offence by a Magistrate, it only indicates the point when a Magistrate first takes judicial notice of an offence. The order taking cognizance is not at all required to be a speaking or reasoned order. 13. In the instant case, I have already found that the challan with sufficient particularity and clarity discloses the facts constituting the offence of which cognizance has been taken. That apart, the order whereby the cognizance was taken makes it clear that at the time of cognizance not only the challan but also the case diary was placed before the Magistrate. Now, a case diary is supposed to contain amongst others, all the documents and statements as contemplated under sub-section (5) of section 173. That being so, when the case diary was placed along with the challan before the ld. Magistrate, the ld. Magistrate can be said to have applied his mind not only to the challan but also to all the documents and statements within the meaning of section 173(5) Cr.P.C. In the circumstances, it is not at all understood how an exception could be taken to the cognizance that has been taken in this case or to the process that was issued by the ld. Magistrate against the petitioners. 14. Magistrate against the petitioners. 14. Indeed, I do not find an illegality, impropriety or irregularity in the matter of taking cognizance or issuance of process against the petitioners so as to call for any interference at this stage. It is also not understood how the question of preventing any abuse of the process of the Court or securing the ends of justice could arise in the facts and circumstances of this case even after the plea is taken under section 251 so as to invoke the inherent powers of this Court under section 482 Cr.P.C. for quashing the proceedings as desired by the petitioners. In any view of the matter, the present case cannot be a fit and proper case for quashing the criminal proceeding. 15. In the result, the revisional application fails miserably and is hereby dismissed. Revisional application dismissed.