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Gauhati High Court · body

2008 DIGILAW 660 (GAU)

Sasanka Dey v. Dipankar Brahma

2008-09-08

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By making this application under Section 482, Cr PC, the petitioner, who is an accused in Complaint Case No. 2161/2007, pending in the Court of the Judicial Magistrate, 1st Class, Guwahati, has sought for quashing of the entire complaint, which, has given rise to the case aforementioned. 2. I have heard Mr. N.N. Karmakar, learned Counsel, appearing on behalf of the accused-petitioner. 3. The accused-petitioner, it may be noted, has sought for quashing of the complaint, in question, on two grounds, namely, (i) that in the facts and circumstances of the present case, the learned Magistrate ought to have directed investigation by the police into the alleged commission of offence instead of taking cognizance of the case and proceeding with the same as a complaint case; and (ii) that the materials; which were available on record, did not constitute prima facie a case against the accused-petitioner under Sections 384, 506 or 323, IPC inasmuch as the complainant's accusations, made against the accused-petitioner, were not corroborated by the witness, who was examined in exercise of the Magistrate's powers under Section 200, Cr PC. In support of the contention that no prima facie case was disclosed by the materials on record, it is also pointed out that there are some contradictions between the allegations made by the complainant in his complaint and what the complainant stated, when his statement was recorded under Section 200, Cr PC. 4. Before entering into the merit of the petitioner's case, it is necessary to point out that the law with regard to the quashing of criminal complaint or FIR is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapoor v. State of Punjab AIR 1960 SC 866 , wherein the question, which arose for consideration was whether a first information report can be quashed under Section 561-Aof the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out; Gajendragadkar, J. speaking for the Court, however, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the accused. From the case of R.P. Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint or FIR shows that the contents thereof, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint or the FIR, as the case may be, shall be quashed. 5. As a corollary to what has been discussed above, it is also clear that if the contents of a complaint or an FIR constitute offence, such a complaint or FIR cannot be quashed except where the complaint or the FIR is, otherwise also, not sustainable in law. 6. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court, in the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. reported in 1992 Supp (1) SCC 335, observed as follows: 102. 6. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court, in the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. reported in 1992 Supp (1) SCC 335, observed as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised: (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code. (3) Where the uncontroverted allegations made in the First Information Report or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegation in the First Information Report do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the First Information Report or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the First Information Report or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge. (Emphasis is added) 7. In the case of Bhajanlal (supra), the Apex Court gave a note of caution on the powers of quashing of criminal proceeding in the following words: 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. (Emphasis is added) 8. (Emphasis is added) 8. It is clear from a close reading of the principles laid down in the case of R.P. Kapoor (supra), that broadly speaking, quashing of a complaint or a First Information Report is possible (a) when the allegations made in the complaint or the First Information Report, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 9. It is, thus, clear that in a quashing proceeding, it is not, within the ambit of the powers of the High Court, under Section 482, Cr PC, to determine the truth, veracity, correctness or otherwise of the accusations made in the FIR or a complaint. In the case at hand too, therefore, this Court has to proceed on the assumption that the allegations made in the complaint and the statements, recorded under Section 200, Cr PC, are true and, then, determine whether the contents of the complaint and what were stated by the complainant and his witness, on their examination under Section 200, Cr PC, if assumed to be true, disclose commission of any offence under the Indian Penal Code or not. 10. Turning to the submissions made, on behalf of the accused-petitioner, that in the present case, the Magistrate ought to have directed 'investigation' by police into the complaint, what may be pointed out is that when a 'complaint' is presented before a Magistrate and even if the same discloses commission of an offence, 'cognizable' or 'non-cognizable', the Magistrate still has the option, to either take, under Clause (a) of Section 190(1) of the Code, 'cognizance' of the offence, which the 'complaint' may disclose to have been committed, or he may direct 'investigation' to be conducted by police in terms of Section 156(3) of the Code. In other words, what is of paramount importance to note is that when a Magistrate receives a 'complaint', he is not bound to take 'cognizance' even if the 'complaint' discloses commission of an offence. This, as held in Devarapalli Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors. AIR 1976 SC 1672 , becomes clear from the use of words "may take cognizance", which cannot be equated with the expression "must take cognizance". Clarified the Supreme Court, in Devarapalli Lakshminarayana Reddy (supra), the position of law/in this regard, as follows: ....If on a reading of the complaint he finds that the allegation therein disclose a cognizable offence and the forwarding of the complaint to the police for 'investigation' under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in inquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. 11. The above observations, made in Devarapalli Lakshminarayana Reddy (supra), leave no room for doubt that it is not mandatory for a Magistrate to take 'cognizance' of an offence, which a 'complaint' may disclose, nor is a Magistrate bound to proceed with such a 'complaint' as a 'complaint case'. 12. In fact, in Gopal Das Sindhi v. State of Assam AIR 1961 SC 986 , it was submitted that once a 'complaint', is filed, a Magistrate is duty bound to take 'cognizance' if the facts stated in the 'complaint' discloses commission of an offence and that the Magistrate, in such a case, has no discretion to direct 'investigation'. Rejecting such a submission, the Apex Court, in Gopal Das Sindhi (supra), has, at para 7, observed and held as under: 7. When the complaint was received by Mr. Thomas on 3.8.1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the officer in charge of Police Station Gauhati for investigation. Section 156(3) states 'any Magistrate empowered under Section 190 may order such investigation as abovementioned'. Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. Section 156(3) states 'any Magistrate empowered under Section 190 may order such investigation as abovementioned'. Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present. If any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence of the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence, if he does so then he would have to proceed in the manner provided by Chapter XVI of the Code. (Emphasis is added) 13. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence, if he does so then he would have to proceed in the manner provided by Chapter XVI of the Code. (Emphasis is added) 13. In the light of the observations made in Devarapalli Lakshminarayana Reddy (supra) and Gopal Das Sindhi (supra), what becomes transparent is that ordinarily, a Magistrate shall send a 'complaint' to the police for 'investigation' rather than proceeding with the 'complaint' as a 'complaint case'. Conversely, it cannot be said that when a 'complaint' discloses commission of a cognizable offence, the Magistrate must send such a 'complaint' to the police for 'investigation' in exercise of his powers under Section 156(3). In short, thus, it is, eventually, the discretion of the Magistrate whether to send or nor to send a 'complaint' to the police for 'investigation' in terms of the provisions of Section 156(3). 14. It is, therefore, clear, if I may reiterate, that the Magistrate is not bound to take 'cognizance' of an offence, which a 'complaint' may disclose and/or proceed with the 'complaint' as a 'complaint case' inasmuch as the Magistrate has the discretion to direct registration of the 'complaint' as the FIR and conduct 'investigation'. This does not, however, mean that the Magistrate must send each and every 'complaint' to the police for 'investigation' nor would it be correct to contend that a Magistrate is powerless to direct investigation into a 'complaint' if the 'complaint' discloses commission of an offence. 15. It is also worth noticing that the proviso to Section 200 makes it abundantly clear that the examination of the complainant and his witnesses is not necessary, when the 'complaint' is made, in writing, by a public servant or when a Magistrate makes over the case, for inquiry and trial, to another Magistrate under Section 192 of the Code. If a Magistrate takes 'cognizance' of an offence, he must (i) examine, on oath, the complainant, though the complaint may be in writing, and the witnesses present, if any, and (ii) reduce the substance of such examination to writing. By examining the complainant and the witnesses present, if any, what the Magistrate essentially does is to determine as to whether there are sufficient grounds for proceeding against the accused. By examining the complainant and the witnesses present, if any, what the Magistrate essentially does is to determine as to whether there are sufficient grounds for proceeding against the accused. If the Magistrate is of the opinion, on examining the complainant and his witnesses under Section 200, that there are sufficient grounds for proceeding against the accused, he can issue process, in terms of Section 204 of the Code. When, after examining the complainant and the witnesses, if present, in terms of Section 200, the Magistrate finds that there exists some materials against the accused, but the same are insufficient for issuance of process, the appropriate statutory mechanism is engrafted under Section 202, which empowers the Magistrate to either direct investigation or inquire into the case himself to decide if the process deserves to be issued against the accused. This 'inquiry' or 'investigation' is really for the purpose of determining as to whether there is sufficient ground for proceeding. If the Magistrate chooses to hold the 'inquiry' himself under Section 202 of the Code, this 'inquiry' may result into either, as already mentioned above, issuance of process against the accused under Section 204 or dismissal thereof under Section 203, for, Section 203 makes it clear that if, upon considering the statements on oath, if any, of the complainant and his witnesses and the result of the 'inquiry' or 'investigation', if any, under Section 202, the Magistrate is of the opinion that sufficient grounds do not exist for proceeding further, it is obligatory on him to dismiss the 'complaint', though, while dismissing the 'complaint', the Magistrate is duty bound to record reasons for so doing. Similarly, 'investigation', ordered by the Magistrate under Section 202, would result into submission of a report by the police and if the report, so submitted, does not disclose sufficient grounds for proceeding, the Magistrate has the discretion to dismiss the 'complaint' under Section203; but when such a report, submitted by the police, discloses commission of an offence, the Magistrate is duty bound to direct issuance of process against the person(s), who may appear to have committed offence(s), which such a report may disclose. 16. 16. What crystallizes from the above discussion is that while a Magistrate is not bound to take cognizance of the offences disclosed by a complaint and proceed with the complaint as a complaint case and he has the discretion to send the complainant to the police for investigation, one must remember that a Magistrate shall not necessarily send each and every complaint to the police for investigation. No judicial exercise of power can be unguided and uncannalized. The Magistrate has to, therefore, take note of the contents of the complaint and if he finds that the complaint discloses commission of offence, he shall decide, considering the facts and attending circumstances of the given case, as to whether it is appropriate to send the complaint to the police for investigation or to take cognizance of the offence(s) disclosed by the complaint and proceed with the same as a complaint case. In a given case, such as, a case of murder, the Magistrate may find that interrogation of the accused is necessary by investigation agency or for any other reason, such as, holding of inquest or holding of post mortem examination, the Magistrate may direct the police to investigate the case. This does not, however, mean that the Magistrate cannot take cognizance of the offence(s), such as murder, which a complaint may disclose, and proceed with the case, in accordance with law, as a complaint case. What Section 202, Cr PC bars is that if the Magistrate decides, in a case, which is exclusively triable by Court of Session, to take cognizance, proceed under Section 200, Cr PC and hold enquiry under Section 202 Cr PC and holds such an enquiry, he cannot, thereafter, send the complaint to the police for investigation. 17. In the present case, it is not contended that the complaint, in question, does not disclose commission of any offence. What is contended is that the accusations made in the complaint, do not completely tally with the statements recorded under Section 200, Cr PC. 18. In order to appreciate the complainant's case it needs to be noted that the complainant's case, in brief, is thus : The complainant is a business man by profession having a wine shop (foreign liquor). What is contended is that the accusations made in the complaint, do not completely tally with the statements recorded under Section 200, Cr PC. 18. In order to appreciate the complainant's case it needs to be noted that the complainant's case, in brief, is thus : The complainant is a business man by profession having a wine shop (foreign liquor). The complainant's father, Ichan Chandra Brahma, is also a businessman having a brick kiln and supplies brick and other materials to the builders for the purpose of construction of buildings. During the month of August/September, 2004, the accused entered into an agreement with the complainant's father for purchase of bricks amounting to rupees three lakhs and offered, in full, the whole amount of rupees three lakhs to the complaint's father. In terms of the agreement, so entered, the bricks were supplied. However, on 8.3.2007, in the evening, the accused asked, over phone, the complainant's father to come to Sonapur for some urgent discussion in respect of supply of bricks. As the complainant's father was busy, he sent his son (i.e., the complainant), to Sonapur along with two other persons, namely, Pradip Kalita, and Upen Boro, who were employes of the complainant's father. When they reached near Sonapur Police Station, the accused, along with some unknown persons, who were waiting there, asked the complainant as to why his (complainant) father had not come. The complainant informed the accused that the since his father was busy, his father had sent him (i.e., the complainant) to meet the accused. The accused took the complainant inside the Police Station and with the help of one policeman, who was present at the Police Station, put pressure on the complainant to put his (complainant's) signature on a stamp paper of rupees fifty. The complainant was also assaulted by the accused person. Finding no other alternative, and out of fear, the complainant put his signature on the stamp paper, wherein it had been falsely written that a sum of Rs.4,04,570/- was due to be paid to the accused by the complainant. The accused persons also forcibly obtained, with the help of the police personnel present at the said police station, signature of the said two companions of the complainant, namely, Pradip Kalita and Upen Boro, on the said document, as witnesses. The accused persons also forcibly obtained, with the help of the police personnel present at the said police station, signature of the said two companions of the complainant, namely, Pradip Kalita and Upen Boro, on the said document, as witnesses. Though the complainant had asked the accused to give him a copy of the said document, he was not given any copy of the said document. The accused, however, handed over a copy of the said document to the complainant's father after a few days. But the complainant was shocked to see that the two more persons had put their signatures on the stamp paper as witnesses, these two persons being I, Ahmed and B. Dey, who were not even present at the time, when the signatures had been forcibly procured from the complainant and his said two companions on the said stamp paper. 19. The learned Magistrate, as the materials on record disclose, took cognizance of the offences, recorded statement of the complainant and one of his witnesses under Section 200, Cr PC and, thereafter, having found that the materials on record disclosed a prima facie case against the accused person under Sections 384,506 and 323, IPC, directed, by an order, dated 4.6.2007, issuance of summons to the accused. It is basically against this order, dated 4.6.2007, that the accused-petitioner has come to this Court seeking quashing of the entire complaint. 20. As already mentioned above, it could not, however, be contended, on behalf of the accused-petitioner, in this Court, that the contents of the complaint and the statements of the complainant and his witness, when read as a whole, disclose commission of offences under Sections 384, 506 or323, IPC. What is, however, contended by Mr. N. Karmakar, learned Counsel, appearing on behalf of the accused-petitioner, is that the Magistrate must be satisfied, before directing issuance of process against an accused, under Section 204, Cr PC, that the materials on record disclose commission of offence(s). It needs to be noted, in this regard, that a Magistrate, while taking cognizance of an offence, is required, in terms of Section 200, Cr PC, to examine the complainant and the witnesses present, if any. If the Magistrate finds that there are sufficient grounds for proceeding, there is no impediment in directing issuance of process against the person(s), who may be shown to have committed the offence(s). If the Magistrate finds that there are sufficient grounds for proceeding, there is no impediment in directing issuance of process against the person(s), who may be shown to have committed the offence(s). If a Magistrate, however, considers that an enquiry or investigation is required to be made before any process is issued against the person(s), who is/are alleged to have committed the offence(s), the Magistrate may hold an enquiry or direct investigation if the offence, complained of, is not exclusively triable by a Court of Session or if the complaint has not been made by a Court. If, after considering the statement, on oath, if any, of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under Section 202, Cr PC, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall, in exercise of his powers under Section 203, Cr PC, dismiss the complaint and, in every such case, he shall briefly record his reasons for so doing. 21. Thus, a mere formation of opinion by a Magistrate is sufficient to dismiss a complaint if his opinion is to the effect that there is no sufficient ground for proceeding. Similarly, if, in the opinion of a Magistrate, there is sufficient ground for proceeding, he may issue process against the person, who is shown to have committed the offence(s). It needs to be borne in mind that the word 'satisfied' conveys a positive and convinced state of mind; whereas the word 'opinion' means 'a brief or judgment, which seems likely to be true, but which is not based on proof; a professional judgment given by an expert'. 22. The Code of Criminal Procedure has deliberately used the word 'opinion' in Sections 203 and 204and not the word 'satisfaction'. As against this, Section 145(1) speaks of 'satisfaction' of the Magistrate before a proceeding is drawn thereunder. Thus, positive state of mind is necessary before a proceeding under Section 145 or 147 is drawn by a Executive Magistrate; whereas, mere formation of opinion is enough to direct issuance of process, in exercise of powers, under Section204, Cr PC, by a Judicial Magistrate. 23. Thus, positive state of mind is necessary before a proceeding under Section 145 or 147 is drawn by a Executive Magistrate; whereas, mere formation of opinion is enough to direct issuance of process, in exercise of powers, under Section204, Cr PC, by a Judicial Magistrate. 23. Since issuance of process requires formation of 'opinion' and not a 'satisfied' state of mind of the Magistrate, it clearly follows that at the stage of considering as to whether process, in given case, shall be issued or not, it is open to the Magistrate to examine and ascertain if the allegations, made against the accused, are true or false. What the Magistrate has to determine is as to whether the materials are sufficient to form an 'opinion' as regards commission of offence(s)? If there are sufficient materials on record to form such an 'opinion', the Magistrate is bound to issue process. 24. At the stage of exercising his powers under Section 204, Cr PC, the Magistrate is, thus, not required to determine, as already indicated hereinbefore, as to whether the allegations are true or false. When considered in this light, it becomes clear that even if the statements of the complainant, made under Section 200, do not completely tally with the accusations made by him in his complaint, the Magistrate cannot dismiss the complaint, because he is not to determine the correctness or veracity of the accusations made; rather, what he has to determine is as to whether sufficient materials exist disclosing commission of offence(s). It is only when no material is disclosed as regards commission of offence that the Magistrate can dismiss the complaint. 25. Because of what have been discussed and pointed out above, this Court finds no reason to interfere with the order, directing issuance of process against the accused-petitioner, nor has the petitioner been able to make out any case warranting quashing of the complaint, in question, in exercise of this Court's power under Section 482, Cr PC. 26. In the result and for the reasons discussed above, this criminal petition fails and the same shall accordingly stand dismissed. Accordingly stand dismissed. Petition dismissed.