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2009 DIGILAW 765 (GAU)

Md. Jakir Hossain v. Sabnam Begam

2009-11-03

H.N.SARMA

body2009
JUDGMENT H.N. Sharma, J. 1. The petitioners who have been arrayed as accused in C.R. Case No. 387/07 under Sections 498-A/406/34, IPC pending in the Court of learned CJM, South Tripura, Udaipur, have approached this Court by filing this application under Section 482 for quashing the proceeding. 2. I have heard Mr. A.K. Bhowmik, learned senior counsel appearing for the accused petitioners and Mr. S. Talapatra, learned senior counsel appearing for the complainant respondent. 3. In order to appreciate the contention raised by the learned Counsel appearing for the parties a brief narration of the facts is considered necessary for disposal of this petition and the same is summarised as follows: 4. The accused No. 1 is the husband of the complainant and their marriage took place on 9.8.2006. The other accused are relatives of the husband. Before quelling the heat of the marriage ceremony matrimonial differences between the parties arose resulting the filing of the aforesaid complaint case in the Court of learned CJM, Sought Tripura, Udaipur. In the said complaint allegations have been made as regards demand of dowry and physical assault meted out of the complainant by the accused persons and she prayed for conviction of the accused persons under Sections 498-A/406/34, IPC. Learned trial Court registered the complaint on 13.11.2007 under Sections498/406/34, IPC and directed the complainant to appear before the Court for recording her statement under Section 200, Code of Criminal Procedure. The complainant accordingly appeared before the Court and her statement was recorded under Section 200, Code of Criminal Procedure. Upon perusal of the averments made in the complaint petition as well as taking note of the initial deposition of the complainant, the learned trial Court vide order dated 11.12.2007 directed to issue warrant of arrest against the accused Md. Jakir Hussain, Md. Ulfat Ali, Mr. Sultan Ahmed, Md. Bahej Mia, Sahid Miah and summoned the accused Mushammit Nachima Choudhury and Halema Begum. In the aforesaid order dated 11.12.2007 it has not been expressly stated about taking of cognizance of the offence. 5. At that stage of the case, the accused persons have filed this petition for quashing of case. During the course of argument Mr. Bhowmik has also challenged the order dated 11.12.2007 directing to issue process against the accused petitioners. It is contended by Mr. 5. At that stage of the case, the accused persons have filed this petition for quashing of case. During the course of argument Mr. Bhowmik has also challenged the order dated 11.12.2007 directing to issue process against the accused petitioners. It is contended by Mr. Bhowmik that upon a close perusal of the complaint as a whole it is to be found that there are lots of serious contradictions in the statements made therein which are self contradictory in nature. That apart, the cause of action under Section 498-A having been pleaded to have arisen at Bishalgarh which falls under the District of West Tripura, learned CJM at South Tripura, Udaipur has no territorial jurisdiction to proceed with the case. It is further contended that the learned Magistrate in its order dated 11.12.2007 has not made any-reference about taking of cognizance of the offences but in an unauthorised manner proceeded to issue warrant and summon upon the respective accused persons. Accordingly without taking cognizance of the case, the order of the learned trial Court to issue process to appear in the case is impermissible under the law and the impugned order being not sustainable is liable to be quashed. 6. Per contra, Mr. S. Talapatra, learned senior counsel appearing for the complainant/respondent submits that since the trial Court after receipt of the complaint petition has registered the case under Sections 498/407/34, IPC vide order dated 13.11.2007 and directed to issue process under order dated 11.12.2007 in the same case in the subsequent consecutive order, it will not oust the jurisdiction the learned trial Court to proceed with the order although the words taking cognizance are not expressly mentioned. It is contended by the learned senior counsel that such an omission may be a mere irregularity, without affecting the merit of the order. It is also contended that the petitioners have not been able to make out a case 3 for quashing the proceeding under Section 482, Code of Criminal Procedure. In the related proceeding I find a record that there is mention of relevant provision of Section in the order dated 13.11.2007. It is also contended that the petitioners have not been able to make out a case 3 for quashing the proceeding under Section 482, Code of Criminal Procedure. In the related proceeding I find a record that there is mention of relevant provision of Section in the order dated 13.11.2007. Learned senior counsel referring to the statements made in the complaint petition submits that categorical statements have been made in the complaint about the commission of criminal offences within the territorial jurisdiction of the learned CJM at Udaipur and although there are allegations of commission of offence by same accused persons in the other district at Bishalgarh, the accused person can be tried for all the offence by the learned CJM at Udaipur. Learned Counsel has also referred to the decision of the Apex Court rendered in the case of State of Karnataka and Anr. v. Pastor P. Raju reported in (2006) 6 SCC 728 , in support of his contention. 7. On the basis of the rival contentions made by the learned senior counsel appearing for both sides as well as upon perusal of the materials available on record it is now to be considered as to whether the petitioners have been able to make out a case for quashing of the aforesaid complaint case now pending in the Court of learned CJM, Udaipur. 8. The basic principle for quashing of the criminal case is by now appears to have been settled. A criminal case can be quashed if on perusal of the complaint petition and accepting the averments made therein to be true and correct, it is found that no criminal case is disclosed such a case can be quashed. Reference, 1960 SC 866 R.P. Kapoor v. State of Punjab. A case can also be quashed if a particular criminal Court has no jurisdiction/authority to proceed with the matter or there is express or specific bar of taking cognizance of the case or for constitution of the trial. Certain criteria that requires to be taken note of while considering a criminal petition for quashing has been referred by the Apex Court in the case of State of Haryana v. Bhajanlal reported in 1992 Supp (1) SCC 335, but those criteria are not exhaustive but only illustrative. 9. Certain criteria that requires to be taken note of while considering a criminal petition for quashing has been referred by the Apex Court in the case of State of Haryana v. Bhajanlal reported in 1992 Supp (1) SCC 335, but those criteria are not exhaustive but only illustrative. 9. Nature and purpose of Section 482 for quashing of a criminal case has been explained by the Apex Court in the case of State of Punjab v. Kasturilal and Ors. reported in (2004) 12 SCC 195 , and in the case of Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharaful Haque and Anr. reported in (2005) 1 SCC 122 . In the light of the aforesaid principle of law as enunciated by the Apex Court, let us now proceed to examine the case in hand. 10. On the perusal of the connected records I find that upon the filing the complaint, the same was registered by the learned trial Court under Sections 498/407/34, IPC on 13.11.2007 by an express order and thereafter vide order dated 11.12.2007 referring the initial deposition of the complainant recorded under Section 200, Code of Criminal Procedure, directed to issue process of the Court against the accused petitioners although there is no express order of taking any cognizance. 11. Section 190 of the Code of Criminal Procedure contained in Chapter XIV of the Code of Criminal Procedure provides for taking cognizance of offence by Magistrate but the term "cognizance" has not been defined. It means cognizance of the offence and not the offenders committing the offence. It is the duty of the learned Magistrate to find out those offenders who are really involved and once he comes to such conclusion, the learned Magistrate is empowered to take cognizance of offence and can issue process under Section 204, Code of Criminal Procedure. Taking of cognizance of the offence takes place at a point of time when the learned Magistrate first takes judicial notice of the offence, applying his mind. 12. In the case of Pastor P. Raju (supra), as referred by Mr. Talpatra the Apex Court in paragraphs 10 and 13 has held as follows: 10. Several provisions in Chapter XIV of the Code of Criminal Procedure use the word "cognizance". The very first section in the said Chapter viz. Section190 lays down how cognizance of offences will be taken by a Magistrate. Talpatra the Apex Court in paragraphs 10 and 13 has held as follows: 10. Several provisions in Chapter XIV of the Code of Criminal Procedure use the word "cognizance". The very first section in the said Chapter viz. Section190 lays down how cognizance of offences will be taken by a Magistrate. However, the word "cognizance" has not been made defined in "cognizance" is "judicial hearing of a matter". The meaning of the word has been explained by judicial pronouncement and it has acquired a definite connotation. The earliest decision of this Court on the point in R.R. Chari v. State of U.P., wherein it was held (SCR p. 320). ...taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. 13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out. 13. Again the Apex Court in the case of S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and Ors. reported in (2008) 2 SCC 492 , held that taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. The Apex Court at paragraphs 20 and 22 reiterated as follows: 20. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition and not of an offender. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition and not of an offender. Whether or not a Magistrate has been cognizance of an offence depends on the facts and circumstances of each case and no rule or universal application can be laid down as to when a Magistrate can be said to have taken cognizance. 22. Chapter XV (Sections 200-203) relates to "Complaints to Magistrates" and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course, it enables him before the issue of process either to enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202, is no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused. 14. Security of the orders passed by the learned Magistrate consecutively on 13.11.2007 and 11.12.2007 disclose that the learned Magistrate applied his judicial mind while he proceeded to issue process against the petitioners under the relevant sections of the Penal Code under which the case was registered. Mr. 14. Security of the orders passed by the learned Magistrate consecutively on 13.11.2007 and 11.12.2007 disclose that the learned Magistrate applied his judicial mind while he proceeded to issue process against the petitioners under the relevant sections of the Penal Code under which the case was registered. Mr. Bhowmik may be right in submitting that the learned CJM who is a Grade II Judicial Officer obviously committed an irregularity in not using the words taking of cognizance in the order dated 11.12.2007 passed by him, which was not expected from an officer of his grade holding the post of CJM, but that itself would not affect the merit of the order in view of the principle of law as discussed from the above mentioned judicial pronouncement. 15. The complainant in his complaint petition at paragraphs 8, 9 and 10 (quoted from the English rendering of the complaint, annexed as Annexure 1/A) has alleged as follows: It is also to be noted here that on 16.6.2007 A.D. 1st the accused Nos. 1, 2,6 and 7 along with a few others came to the parent's house of her (the she-complainant) and at the time of discussion in presence of the local people the noted accused persons had abused her in filthy languages and dragged her out. On 27th day of the month of Feb., 07 A.D. last the accused Nos. 1, 3, 5, 6 and 7 in presence of her parents and other peoples had assaulted her in her parent's house and used abusive languages. Apart from this, the accused Nos. 1 and 6 had assaulted and inflicted torture upon her in her parent's house on different dates and times demanding the dowry of Rs. 6 (six) lacs in cash, Maruti Alto Car, and continuous pressure for making house at Agartala for the accused No. 1 and while it was informant in respect of inability to fulfil the dowry demands then she was tortured physically and mentally by the accused persons. That, on 29.7.2007, A.D. last while the PW's Nos. 3, 4, 5, 7 and 9 had gone to the house 3 of accused Nos. 1-5 getting information then all the accused persons being united behaved wrongly with them and insulted them and told the she complainant will not be taken aback to the in-laws' house without fulfilling the dowry demands. Even in time 'TALAC (Divorce) will be given. 16. 3, 4, 5, 7 and 9 had gone to the house 3 of accused Nos. 1-5 getting information then all the accused persons being united behaved wrongly with them and insulted them and told the she complainant will not be taken aback to the in-laws' house without fulfilling the dowry demands. Even in time 'TALAC (Divorce) will be given. 16. The aforesaid allegations prima facie disclose the commission of offence by the accused Nos. 1, 3, 5, 6 and 7 in the house of the complainant within the territorial jurisdiction of the learned CJM, Udaipur. Even on the same set of occurrence similar other offence are alleged to have been committed by some of the accused at a different place even within the territorial jurisdiction of the learned CJM, Udaipur under Section 178 of the Code of Criminal Procedure to try the case would not be attracted. Section 178 , Code of Criminal Procedure is quoted herein below for a ready reference: 178. Place of inquiry or trial.- (a) When it is uncertain in which of several local areas an offence was committed, or (b) where an offence is committed partly in one local area and partly in another, or (c) where an offence is a continuing one, and continues to be committed in more local areas than on, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. 17. Accordingly in the instant case though in the complaint petitioner is specifically stated that part of the offence has been committed a Bishalgarh and same can also be tried simultaneously along with the other offence alleged to have committed within the territorial jurisdiction of the learned CJM at Udaipur. 18. Discussion and reasoning rendered above lead me to come to the conclusion that no ground be made out by the petitioners to quash the proceeding or the order dated 13.12.2007 and accordingly, finding no merit in this quashing petition the same stands dismissed. Interim order dated 21.1.2008 extended on 31.8.2008 passed in CM. Application 21/08 stands vacated. 19. It is made clear that the observation made hereinabove are made for the purpose of disposal of this petition only and those shall not be construed as opinion on merit by the learned trial Court.