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Gauhati High Court · body

2007 DIGILAW 165 (GAU)

Pradip Das v. State of Tripura

2007-02-28

UTPALENDU BIKAS SAHA

body2007
JUDGMENT U.B. Saha, J. 1. The present application under Section 438 Cr. P.C. has been filed for granting of pre-arrest bail to the accused petitioner Sri Pradip Das, who apprehends arrest in connection with the Airport P.S. case No. 76 of 2006 registered under Section 498A/34 of the Indian Penal Code. 2. I have heard Mr. Somik Deb, learned Counsel for the accused petitioner and Mr. R.C. Debnath, learned PP In-charge appearing for the respondent-state. 3. The prosecution case, in short, is as under: Smt. Jolly Das, wife of the accused petitioner, lodged a complaint to the Chief Judicial Magistrate, West Tripura, Agartala stating, inter alia, that her marriage was solemnized with the accused petitioner following all the ritual formalities of the Hindu Marriage Act on 7th day of Aghrayan, 1412 B.S. (23.11.2005 A.D.) and alleging that after marriage, from the night of Chathurthamangal held on 10th Aghrayan (26.11.2005) i.e., the 4th day after the marriage, her husband, the accused petitioner started sexual torture upon her brutally resulting her to feel tremendous physical and mental pain which he continued till she lodged complaint to the Chief Judicial Magistrate. She also alleged mat she used to get frightened whenever her husband came to her room at night. She also stated in her complaint that during holidays, her husband, as and when he used to stay at home, on every night, he consumed alcohol with his friends and during such consumption, he used to insult her in presence of his friends and he also used to gossip indecently with other women over mobile phone till dead hours of night and in the event of her protest to the said activities of her husband, then her husband used to give her kicks and slaps. According to her, her husband also asked her to bring a sum of Rs. 2 lakhs from her parental house and when she disclosed that her father was unable to provide such a huge sum, the degree of physical and mental torture upon her was enhanced and on one night, her husband tried to kill her by putting a pillow on her face. She could somehow rescue herself and on the following morning, the matter being informed to her mother-in-law and brother-in-law, her second brother in law made lewd comments. She could somehow rescue herself and on the following morning, the matter being informed to her mother-in-law and brother-in-law, her second brother in law made lewd comments. When she told that she would inform the aforesaid acts to the family members of her house and the neighbours, the husband/accused petitioner along with his family members altogether assaulted her physically and told that even if she instituted a case, that would not be in use as because a police officer would not register a case against a police officer and even in the event of registration of a case, her husband/the accused petitioner knew as to how to manage a police officer. It may be noted here that the accused petitioner is a police Sub-Inspector and the elder sister in law of the complainant/wife is also a police employee as disclosed in the complaint. Ultimately, when she was not in a position to face physical and mental torture of her husband including his family members, then without getting any other alternative, she approached the Chief Judicial Magistrate, by filing the instant complaint which was registered as C.R. Case No. 2587 of 2006 on 22.11.2006. 4. After receiving the said complaint, the Chief Judicial Magistrate, before taking cognizance thought it appropriate to exercise his power under Section 156(3) Cr.P.C. and accordingly, he sent the same to the Airport P.S. for registering it as FIR and investigation thereof. On receipt of the same, the Airport RS. registered a police case No. 76 of 2006 dated 30.11.2006 under Section 498A/34 of the IPC and thereafter investigation was made on the basis of the said written complaint of the victim wife and charge sheet was filed to the Court of the Chief Judicial Magistrate, West Tripura. 5. Mr. Deb, learned Counsel for the accused petitioner submits that the present accused petitioner after getting information of the aforesaid facts has reason to believe that he may be arrested in connection with the aforesaid complaint case at any time and accordingly, he has filed this application praying for pre-arrest bail, although according to Mr. 5. Mr. Deb, learned Counsel for the accused petitioner submits that the present accused petitioner after getting information of the aforesaid facts has reason to believe that he may be arrested in connection with the aforesaid complaint case at any time and accordingly, he has filed this application praying for pre-arrest bail, although according to Mr. Deb the police has no power to arrest him as the said offence under Section 498A is cognizable only if information relating to the Commission of the offence is given to an officer in charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State Government in this behalf. In support of the aforesaid grounds of the accused petitioner, Mr. Deb referred to column-4 of the first Schedule of Cr.P.C. relating to Section 498A. The next ground, which is agitated before this Court in support of the bail application is that even if for the argument's sake it is admitted that the offence is cognizable, then also the police has no power to arrest the accused petitioner without obtaining a warrant of arrest from the Chief Judicial Magistrate or any other Magistrate concerned as the penal offence under Section 498A IPC is both cognizable and non-cognizable. In a given circumstances, i.e., when the information relating to the offence under Section 498A IPC lodged by the authorized persons prescribed in the Cr.P.C. to the Officer in Charge of a police station, then the same is cognizable and while the information relating to the offence narrated in the complaint is sent by the Chief Judicial Magistrate of any other Magistrate to the Officer in Charge of a police station for registering the case as well as for investigation, it would be non-cognizable. Mr. Deb, learned Counsel for the accused petitioner to justify his contention referred to Sub-section (2) and (3) of Section155, Sub-section (3) of Section 156 and Section 198A of the Cr.P.C. In support of this contention, Mr. Mr. Deb, learned Counsel for the accused petitioner to justify his contention referred to Sub-section (2) and (3) of Section155, Sub-section (3) of Section 156 and Section 198A of the Cr.P.C. In support of this contention, Mr. S. Deb, learned Counsel for the petitioner relies upon the decisions of the Supreme Court rendered in the cases of (1) Narayandas Bhagwandas Madhavdas v. The State of West Bengal reported in 1959 CriLJ 1368; (2) Mohd Yousuf v. Afaq Jahan reported in 2006 CriLJ 788 and (3) State through CBI v. Dawood Ibrahim Kaskar reported in 1997 CriLJ 2989. Finally, Mr. Deb also submits that no offence under Section 498A is made out even from a plain reading of the facts narrated in the complaint by the victim wife. 6. Mr. D. Sarkar, learned P.P. on the other hand submits that the penal offence under Section 498A in all cases is cognizable either the information relating to commission of such offence is lodged to the Magistrate or to the Officer in Charge of a police station. He further submits that the 4th column of the first Schedule of Cr.P.C. relating to Section 498A IPC states that who are the authorized persons to lodge the information before the police authority and the same does not exclude the right of a victim to lodge any complaint narrating the commission of offence under Section 498A to the Court of a Magistrate including the Chief Judicial Magistrate. Learned P.P. also submits that the information relating to the said offence can only be given either by the victim or by her relatives and in the instant case, the victim wife herself made the complaint narrating the facts. Cognizance is taken in relation to an offence, and when any case is registered relating to a cognizable offence, then that can be said as a cognizable case. Here in the instant case, according to Mr. Sarkar, the victim wife had no other alternative except to lodge the complaint to the Court against her husband who is a police officer and already threatened her by way of stating that even if she would lodge any information regarding the incidents of torture and cruelty by the accused petitioner and his family members to the police station, then the police authority will not take any action on the said allegation and the accused petitioner would be able to manage the police officer. Mr. Sarkar finally submits that the Chief Judicial Magistrate rightly sent the complaint to the Officer in charge of the Airport Police Station before taking cognizance of the offence. He sent the complaint petition which was with full information relating to the commission of offence allegedly committed by the husband/accused petitioner and his relatives. Hence the complaint received by the Officer in charge, Airport police station is to be considered as an information to the police officer by the victim herself. In support of his contention, Mr. Sarkar, learned P.P. relies upon a decision of the Supreme Court rendered in a case of Suresh Chand Jain v. State of M.P. reported in (2001) 2 SCC 628 where the Apex Court discussed the provisions contained in Chapter-XII of the Code relating to the powers of the police regarding information and investigation. In the said report, the Apex Court also discussed the scope and ambit of Section 156 of the Cr.P.C. 6.1 It is further submitted by Mr. Sarkar, learned P.P. that in the present case, the investigating authority after investigation as regards the incident narrated by the victim wife/complainant to the Officer in charge of the Airport police station through the Chief Judicial Magistrate, has already filed the charge sheet. Hence the accused petitioner is not entitled to be enlarged on pre-arrest bail from any Court except the Court of the Chief Judicial Magistrate where the charge sheet has been filed by the investigating agency. 7. In response to the submission of the learned P.P., Mr. Deb, learned Counsel for the petitioner submits that even after filing of the charge sheet, the petitioner is entitled to be enlarged on pre-arrest bail. In support of his aforesaid contention, he relies upon the decision rendered in the case of Bharat Chaudhary v. State of Bihar reported in 2003 CriLJ 5038. 8. According to Mr. Deb, learned Counsel for the petitioner submits that even after filing of the charge sheet, the petitioner is entitled to be enlarged on pre-arrest bail. In support of his aforesaid contention, he relies upon the decision rendered in the case of Bharat Chaudhary v. State of Bihar reported in 2003 CriLJ 5038. 8. According to Mr. Deb, learned Counsel for the accused petitioner, the decision of the Suresh Chand Jain (supra) relied by the learned P.P. has no application in this case as that particular case was relating to a cognizable offence and in the column-4 of the 1st Schedule of Section 420 I.P.C., it is simply mentioned that the offence is cognizable, but in the column- 4 of the 1st schedule relating to penal offence under Section 498A, the same is not cognizable simplicitor, rather the legislature put some conditions i.e., if the information relating to commission of offence is given to the Officer in Charge of a police station by the person aggrieved, then only the same is cognizable and the argument which is raised by Mr. Deb, learned Counsel for the accused petitioner in the present case was not raised before the Supreme Court in the case of Suresh Chand Jain (supra). Hence according to Mr. Deb, the submissions made by Mr. Sarkar, learned P.P. relying upon that case has no substance. 9. I have given my anxious consideration to the submissions of the learned Counsel for the rival parties and taken into consideration the facts of the case, nature of the offence involved in the matter and the ratio of the decisions of the Apex Court cited by the learned Counsel for the parties. Legislature considering the facts relating to the offence committed by the husband and his relatives to the wife inserted the provisions of Section 498A in the Indian Penal Code in the year 1983 by way of amendment so that the offence against the wife can be checked and the offender of such offence can be booked. The Apex Court in those cases dealt with an offence which were non-cognizable offence and the case in hand is a cognizable one of an offence under Section 498A IPC and the facts of those cases are also different in nature. In those cases, the complainant/informant/victim was not in such a position where against whom the allegations were made was a police officer. In those cases, the complainant/informant/victim was not in such a position where against whom the allegations were made was a police officer. In the instant case, the accused petitioner is a police officer who is supposed to maintain the law and order and also to protect the citizen. But he himself allegedly involved in the offence and stated to his wife/victim/complainant that if she would file any information to the police station, then the police authority would not take any action and he would also manage the police personnel. In such circumstances, the wife/complainant filed the information relating to the commission of offence under Section 498A to the Chief Judicial Magistrate. Hence, the decisions of the aforesaid cases have no application so far as this case in hand is concerned. If the submissions of Mr. Deb so far as conditions made in the 4th column of the first Schedule of Cr.P.C. relating to Section 498A IPC is accepted, then a person when is not in a position to approach the police authority by way of lodging information relating to the offence under Section 498A would be remediless. According to Mr. Deb, learned Counsel for the accused petitioner, when the Magistrate sent the complaint to the police station for registering it as an FIR and investigation, then the police has the power to investigate the complaint, but the police cannot arrest the present petitioner without any warrant of arrest. This submission of Mr. Deb, learned Counsel for the petitioner cannot be accepted, for if the police is given power to investigate without the power to arrest the accused, then that will be meaningless. No decision on similar facts has been placed before this Court where the complaint was lodged by a victim/wife like the present one before the Magistrate who sent the same to the police station for registering it as FIR and investigation relating to the offence under Section 498A, the Apex Court or any other Court decided that the said offence would not be cognizable offence. 10. 10. In this situation, this Court thinks it fit to observe that the legislature only inserting the words "if the information relating to the commission of offence is given to an officer in charge of a police station by the person aggrieved by the offence or by any person, related to her by blood, marriage or adoption or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State Government in this behalf tried to mean that the aforementioned persons are authorized to lodge information relating to offence under Section 498A IPC, and in any way does not mean that the said information should only be lodged to the Officer in charge of the police station, not to the Court. In the instant case, the Chief Judicial Magistrate rightly exercised his power under Section 156(3) of the Cr.P.C. mere sending of the complaint by the Chief Judicial Magistrate would not ipso facto change the nature and character of the information narrated in the complaint petition and also would not make the offence non-cognizable and also not beyond prescription made in column No. 4 of the first schedule of Cr.P.C. relating to penal offence under Section 498A IPC. The Chief Judicial Magistrate only sent the information given by the victim in the complaint to the Officer in charge of the Airport police station. The information relating to offence under Section 498A of IPC was given by the victim herself and not by the Chief Judicial Magistrate and that the Chief Judicial Magistrate only asked the Officer in charge of the Airport Police Station to register it as FIR and investigate the same. This Court is taking the aid from the decision of Suresh Chand Jain (supra), particularly the paragraph No. 6, 7 and 8 which are quoted herein below: 6. The former decision of the Rajasthan High Court need not vex our mind as the consideration focused therein was on the scope of Section 202(1) of the Code and the learned Single Judge observed therein that a Magistrate cannot make any order regarding police investigation without examining the complainant on oath. If the facts in that case remained the one under Section 202(1) of the Code then the observation cannot be faulted with. If the facts in that case remained the one under Section 202(1) of the Code then the observation cannot be faulted with. That apart, as the point involved in' this case is different we do not think it necessary to examine the said decision. But the other decision rendered by a Single Judge of the Punjab and Haryana High Court (Suresh Kumar v. State of Harayana) has gone a step further as he held that: 'the Magistrate has no power within the contemplation of Section 156(3) of the Code to ask for registration of the case, but could only refer the complaint to the police for investigation at the pre-cognizance stage to make the inquiry in the matter enabling the Magistrate to apply his mind with regard to the correctness of the complaint.' In that decision the learned Single Judge, at the end of the judgment, made a direction as follows: 'Before parting with the judgment, it is observed that often it is found that the Judicial Magistrates working under the control of this Court many a time upon the complaints preferred before them, allegedly showing that a cognizable offence has been committed by the accused, direct the police to register and conduct the investigation in such cases under Section 156(3) Cr.P.C. After the reports are received from the police the Magistrates deal with those cases as police challans and conduct the proceedings in the matters against the provisions of law, as discussed above. Hence the Registry is directed to send a copy of this judgment to all the Judicial Magistrates in the States of Punjab, Haryana and Union territory, Chandigarh, for information and guidance.' 7. In our opinion, the aforesaid direction given by the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar v. State of Haryana is contrary to law and cannot be approved. Chapter-XII of the Code contains provisions relating to 'information to the police and their powers to investigate', whereas Chapter-XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e., complaint filed by a person. Section 156, falling within Chapter-XII, deals with powers of the police officers to investigate cognizable offences. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e., complaint filed by a person. Section 156, falling within Chapter-XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter-XV, also refers to the power of a Magistrate to 'direct an investigation by a police officer'. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the code. Section 156of the code reads thus: '156. Police officer's power to investigate cognizable cases.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter-XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.' 8. The investigation referred to therein is the same investigation, the various steps to be adopted for it have been elaborated in Chapter-XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter- XII he does so before he takes cognizance of the offence. 11. Though the facts of the case are not similar to the case in hand, this Court is not in a position to accept the submission of Mr. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter- XII he does so before he takes cognizance of the offence. 11. Though the facts of the case are not similar to the case in hand, this Court is not in a position to accept the submission of Mr. Sarkar, learned P.P. to the effect that after submission of charge sheet, the accused is not entitled to get the benefit of pre-arrest bail as provided under Section 438 of the Cr.P.C., rather the submissions of Mr. Deb, learned Counsel for the accused petitioner has some force, which is also supported by the decision of the Apex Court in Bharat Choudhury (supra). As such, the submissions of learned P.P. so far as the jurisdiction of this Court under Section 438 Cr.P.C. after filing of the charge sheet is not tenable. Learned P.P. did not make any submission for what purpose the arrest of the present accused petitioner is necessary and whether after grant of pre-arrest bail, the accused petitioner will threat the victim or tamper any other witnesses or that he will abscond. Detention/arrest cannot be made only for the purpose of punishment of an accused or an under trial prisoner unless he is proved to be guilty by the Court of law. Though the alleged offence as allegedly committed by the petitioner is heinous in nature, then also the Court can consider that being the accused petitioner is a Government servant, he will be available at the time of trial and Mr. Deb, learned Counsel for the petitioner assures this Court that the accused petitioner will cooperate in all manner so far as the trial of this case is concerned. As the charge sheet has already been filed, there is no scope for tampering the evidence of the witnesses by the accused petitioner. At this stage, arrest of the accused petitioner will be a mere formality. 12. Considering all the aforesaid facts and circumstances, this Court thinks it fit to release the accused petitioner for a particular duration so that he can apply before the trial Court for regular bail. Whether the trial Court will grant bail, or not that is totally at the discretion of the trial Court. 12. Considering all the aforesaid facts and circumstances, this Court thinks it fit to release the accused petitioner for a particular duration so that he can apply before the trial Court for regular bail. Whether the trial Court will grant bail, or not that is totally at the discretion of the trial Court. It would not be proper for this Court to say anything about the merits as well as how the trial Court should exercise its power under the provisions of law. 13. Accordingly, it is ordered that the accused petitioner shall surrender before the trial Court within seven days and in the interim for seven days, in the event of his arrest, the accused petitioner shall be released on bail on his furnishing a P.R. bond of Rs. 25,000/- with two sureties of the like amount to the satisfaction of the arresting authority. If the accused petitioner shall not appear before the trial Court within seven days, then the investigating authority is given liberty to arrest the accused petitioner in accordance with law and produce him before the trial Court so that the trial Court can proceed with the trial. The bail application stands disposed.