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2008 DIGILAW 200 (CAL)

Prafulla Kumar Jana v. STATE OF WEST BENGAL

2008-02-15

ARUNABHA BASU

body2008
Judgment :- (1.) THE application under section 482 of the Code of criminal Procedure is directed against the order dated 17. 5. 2005 passed by learned Judicial Magistrate, Datan in connection with case being G. R. No. 692/2002 arising out of Belda Police Station Case No. 61/02 under section 498a/323 of the Indian Penal Code. (2.) PETITIONERES herein are impleaded as accused, in connection with the criminal case as mentioned above. (3.) FIRST Information Report was lodged before the O. C. , Belda Police Station by the Opposite Party No. 2 alleging inter alia that one Kakali Jana, who is the sister of the wife of informant was given in marriage with petitioner No. 1. The said Kakali Jana was subjected to cruelty and torture by the petitioners and ultimately she was compelled to leave her matrimonial house. The written information lodged before the police was registered at Belda Police Station under First Information Report No. 61/02 dated 22. 5. 2002. Investigation was initiated by the police and on completion of investigation, chargesheet was submitted against the petitioners for commission of offence punishable under section 498a/323 of the Indian Penal Code. (4.) BEFORE the learned Magistrate, petitioners filed application praying for discharge mainly on the ground that as the de facto complainant (Opposite party No. 2 herein) has no locus standi to lodge the information before the police in view of bar under section 198a of the Code of Criminal Procedure, and as such the proceeding cannot be maintainable in the eye of law. Learned magistrate by his order dated 17. 5. 2005 rejected the prayers of the petitioners and proceeded with trial by directing issuance of summons upon the prosecution witnesses. (5.) MR. Joymalya Bagchi, learned Advocate appearing for the petitioners submitted that section 198a of the Code of Criminal Procedure stipulates particular class of persons, who can be complainant in connection with an offence under section 498a of the Indian Penal Code. (6.) IT is the contention of the learned Advocate for the petitioners that the de facto complainant (Opposite Party No. 2) does not fall within any of the category of complainant stipulated under section 198a of the Code of Criminal procedure, as such the charge sheet which was submitted by police on the basis of the said First Information Report is not tenable under law. (7.) LEARNED Advocate for the petitioners also drew attention to the Schedule i of the Code of Criminal Procedure and highlighted that schedule also specifically provides as to how the Magistrate will be competent to take cognizance in connection with an offence under section 498a of the Indian penal Code. (8.) FOR the purpose of proper appreciation, section 198a, which is inserted by Act 46 of 1983 is reproduced below: "198a. Prosecution of offences under section 498a of the Indian penal Code.-No Court shall take cognizance of an offence punishable under section 498a of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her fathers or mothers brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption." (9.) CHAPTER XX-A of Schedule 1 of the Code of Criminal Procedure, prescribes of cruelty by husband or relatives of husband. The specific portion of the schedule is reproduced below: " (CHAPTER XX-A-Of cruelty by husband or relatives of husband) (10.) THE provision under section 198a of the Code of Criminal Procedure comes under Chapter XIV of the Code, which prescribes the procedure for conditions requisite for initiation of proceedings. (11.) THE scheme of the Code of Criminal Procedure provides two modes of initiation of criminal case. Under the first category will be cases instituted on police report and under the second category, there will be cases instituted otherwise than on police report. There is a third category of case where the magistrate is empowered to take cognizance upon his own knowledge in terms of section 190 (l) (c) of the Code of Criminal Procedure but the said section is not relevant for the purpose of present discussion. (12.) IN respect of all types of cases whether instituted on police report or otherwise than on police report, Magistrate is competent to take cognizance either upon receiving a complaint of facts, constituting offence or upon a police report submitted by police officer after conclusion of investigation. (13.) SECTION 190 of the Code of Criminal Procedure prescribes the provision for taking cognizance in respect of offence by Magistrate. The said section 190 is set out below: "190. (13.) SECTION 190 of the Code of Criminal Procedure prescribes the provision for taking cognizance in respect of offence by Magistrate. The said section 190 is set out below: "190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this chapter, any Magistrate of the First Class, and any magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second Class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. " (14.) IN cases instituted on police report, particularly in respect of offence, which is cognizable, the initiation point of investigation will be information received by police in terms of section 154 of the Code of Criminal Procedure. In respect of cases instituted otherwise than on police report, the initiation will be on the basis of petition of complaint submitted before the Magistrate in terms of section 2 (d) of the Code of Criminal Procedure. (15.) NORMALLY criminal law can be set at motion by any person. It is not the requirement of the law that in order to set the criminal law at motion, a particular class of complainant will be required. The reason being that offence is normally an offence against State and in most of the cases, State is the prosecutor. Exception to this general rule is provided under section 195 to section 199 of the Code of Criminal Procedure. (16.) UNDER section 195 in respect of certain category of offences as stipulated in the said section, the Court is required to take cognizance only on the basis of complaint either lodged by the Court or lodged by the public servant or lodged by the authority as prescribed under section 195 of the Code of Criminal procedure. (16.) UNDER section 195 in respect of certain category of offences as stipulated in the said section, the Court is required to take cognizance only on the basis of complaint either lodged by the Court or lodged by the public servant or lodged by the authority as prescribed under section 195 of the Code of Criminal procedure. (17.) SECTION 196 of the Code of Criminal Procedure also provides that in case of prosecution for offences falling under the said section and for criminal conspiracy to commit such offences, cognizance can only be taken when such prosecution is sanctioned either by Central or State Government or with the consent in writing by the authority as prescribed under the said section. (18.) SECTION 197 of the Code of Criminal Procedure stipulates the requirements of sanction either by Central Government or by State government to prosecute public servants of such category as mentioned in the said section. (19.) SECTION 198 of the Code of Criminal Procedure prescribes prosecution for offences against marriage and under the said section, law has stipulated particular class of complainant, who are competent to lodge complaint before the Court. The section also stipulates that the cognizance shall be taken on the basis of complaint. (20.) SECTION 199 of the Code of Criminal Procedure stipulates prosecution for defamation and this section also prescribes class of a complainant as well as the mode of taking cognizance by the Magistrate, which is petition of complaint. (21.) SECTION 198a of the Code of Criminal Procedure as quoted above prescribes a class of complainant, who can be either the person aggrieved or by her father, mother, brother, sister or by her fathers or mothers brother or sister or with the leave of the Court, by any other person related to her by blood, marriage or adoption. The requirement of such person to lodge the complaint will be applicable when a complaint, in terms of section 2 (d) of the code of Criminal Procedure, is presented before a Magistrate and cognizance is taken under section 190 (l) (a) of the Code of Criminal Procedure. (22.) SECTION 198a clearly stipulates that the Court is also competent to take cognizance on the basis of police report. When the Court takes cognizance on the. basis of police report, it takes cognizance in terms of section 190 (l) (b)of the Code of Criminal Procedure. (22.) SECTION 198a clearly stipulates that the Court is also competent to take cognizance on the basis of police report. When the Court takes cognizance on the. basis of police report, it takes cognizance in terms of section 190 (l) (b)of the Code of Criminal Procedure. Such report is submitted by police on conclusion of investigation in terms of section 173 of the Code of Criminal procedure. The purpose of investigation is to collect evidence. The power of the police to conduct investigation in respect of cognizable offence is provided under Chapter XII of the Code of Criminal Procedure. (23.) UNDER section 2 (c) of the Code of Criminal Procedure a cognizable offence, a cognizable case is defined. The said definition as provided under section 2 (c) of the Code of Criminal Procedure is reproduced below: 2. (c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant. (24.) SECTION 154 of the Code of Criminal Procedure stipulates lodging of information in respect of cognizable offence, section 156 of the Code of Criminal procedure empowers the police officers to investigate cognizable case. The said section 156 is set out below: "156. Police Officers power to investigate cognizable case.- (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 abovementioned." (25.) THE culmination of such investigation is by way of submission of report under section 173 of the Code of Criminal Procedure. The offence under section 498a of the Indian Penal Code is cognizable offence. Section 198a specifically provides that Magistrate is competent to take cognizance on the basis of police report. The offence under section 498a of the Indian Penal Code is cognizable offence. Section 198a specifically provides that Magistrate is competent to take cognizance on the basis of police report. When the law specifically provides that a case under section 498a of the Indian Penal Code can be instituted either on police report or on complaint by those persons as mentioned under section 198a of the Code of criminal Procedure, then law clearly provides that in cases where there is a police report in terms of section 173 of the Code of Criminal Procedure, the magistrate will be competent to take cognizance under section 190 (1) (b) of the Code of Criminal Procedure. (26.) IT is not the requirement of law that even in cases instituted on police report, where the investigation was initiated on the basis of information as to commission of cognizable offence, then also a particular class of complainant will be required to lodge the information before the police, in terms of section 154 of the Code of Criminal Procedure. (27.) THE word or appearing in the section clearly indicates that both the modes of taking cognizance is permitted under section 198a of the Code of criminal Procedure. In order to set the criminal law at motion, it is not the requirement of law that information in terms of section 154 of the Code of criminal Procedure must be lodged by specific class of persons as mentioned under section 198-A of the Code of Criminal Procedure. Such requirement will only be necessary when petition of complaint is presented before the magistrate in terms of section 2 (d) of the Code of Criminal Procedure and the learned Magistrate is required to take cognizance on such complaint in terms of section 190 (l) (a) of the Code of Criminal Procedure. (28.) IN cases where the learned Magistrate is taking cognizance on the basis of police report, then he is taking cognizance in terms of section 190 (1) (b)of the Code of Criminal Procedure. Such cognizance is taken only on the basis of report submitted under section 173 of the Code of Criminal Procedure. (29.) THE learned Magistrate, while taking cognizance on police report, certainly does not take cognizance on the basis of First Information Report lodged before the police in terms of section 154 of the Code of Criminal procedure. Such cognizance is taken only on the basis of report submitted under section 173 of the Code of Criminal Procedure. (29.) THE learned Magistrate, while taking cognizance on police report, certainly does not take cognizance on the basis of First Information Report lodged before the police in terms of section 154 of the Code of Criminal procedure. (30.) SECTION 198a clearly stipulates about taking cognizance upon a police report and as such it cannot be the requirement of law that information before the police must be lodged by the particular class of persons as mentioned in the latter part of section 198a of the Code of Criminal Procedure. In my view, it can not be the intention of legislature that even in cases where cognizance is taken on the basis of police report submitted after investigation, in terms of section 173 of the Code of Criminal Procedure, then also, the initial information lodged before the police in terms of section 154 of the Code of Criminal Procedure must be lodged only by the same category of persons, who are mentioned in section 198a of the Code. Section 198a of the Code as framed by the legislature prescribes, two different mode of taking cognizance; (a) cognizance on police report and (b) cognizance on petition of complaint. When the law has prescribed different mode of taking cognizance, then the requirement of taking cognizance under petition of complaint can not be extended to cases where cognizance is taken on police report. The word or appearing in section 198a is clearly indicative of such separation. Both the mode and manner of taking cognizance, are independent and separate from each other. In other words, when the Court takes cognizance on police report, it can not be the requirement of law that in addition to police report, the information to police must be lodged by specific class of complainant. (31.) LEARNED Advocate for the petitioners, however, sought to support his arguments on the basis of schedule to the Code of Criminal Procedure as mentioned above. It is correct that schedule is a part of law but if there is any ambiguity and conflict in the language used in the Act and in the schedule, then the words used in the schedule can not and does not supercede the specific provisions of the Act. It is correct that schedule is a part of law but if there is any ambiguity and conflict in the language used in the Act and in the schedule, then the words used in the schedule can not and does not supercede the specific provisions of the Act. Schedule is framed as an aid and assistance to the specific section of the Act but cannot be treated as a substitute for the specific provisions of the Act. Mode of taking cognizance is clearly stipulated under section 198a of the Code of Criminal Procedure and not in the schedule of the Act. If there is any ambiguity in the said schedule, then the clear language of the Act will supercede the apparent ambiguity in the schedule. In other words, Court is required to follow the specific provisions of the Act and when the language of the Act is plain and simple, the Court is required to follow the plain meaning of the Act. (32.) IN view of my above discussion, I do not find any illegality in the present case where cognizance is taken on the basis of the police report. The First information Report is lodged by one of the relatives of the wife. Informant is the sisters husband of the wife of petitioner No. 1. Petitioners are facing trial for subjecting the relative of informant to cruelty and torture within the meaning of section 498a of the Indian Penal Code. However, I make it clear that as the instant case is instituted on police report then it is unnecessary to discuss about the persons qualified to lodge complaint before the learned magistrate in terms of section 2 (d) of the Code of Criminal Procedure enabling the Magistrate to take cognizance for the offence in terms of section 190 (l) (a)of the Code of Criminal Procedure. (33.) IN the instant case, cognizance is taken on the police report in connection with facts, which constitute offence under section 498a/323 of the Indian penal Code. The prosecution instituted against the petitioners does not suffer from any illegality. (34.) THE application under section 482 of the Code of Criminal Procedure is devoid of any merit and stands dismissed. There shall be no order as to costs. Interim order granted earlier stands vacated. The prosecution instituted against the petitioners does not suffer from any illegality. (34.) THE application under section 482 of the Code of Criminal Procedure is devoid of any merit and stands dismissed. There shall be no order as to costs. Interim order granted earlier stands vacated. Criminal Section is directed to send a copy of the order to learned Judicial magistrate, Danton within the district of Midnapore in connection with G. R. Case No. 692/2002 urgently. Learned Magistrate is directed to proceed with the trial as expeditiously as possible by following the provisions prescribed under section 309 of the code of Criminal Procedure. Criminal Section is also directed to supply urgent xerox certified copy of the order as and when applied for. Appeal dismissed.