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2010 DIGILAW 326 (GAU)

Situ Sarkar v. State of Assam

2010-05-07

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Ms. D. Borgohain, learned Counsel appearing for the Petitioners. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor for Respondent State of Assam and Mr. D.A. Kaiyum, learned Counsel for opposite party No. 2. 2. An FIR was lodged by one Smt. Mamata Bora with the in-charge, Dhubri Police Station, which was registered as Dhubri P.S. Case No. 313/2007 under Sections147/448/325/427/294/342/506 of IPC. After completion of the investigation, the police submitted a Final Report ('FR') discharging the accused persons for want of materials against them. The Magistrate concerned accepted the FR submitted by the police but on receipt of a protest from informant, he took cognizance of the alleged offences and issued summons upon the accused persons directing them to appear and stand trial. This is how, in the present case, the learned Chief Judicial Magistrate, Dhubri, had to pass the impugned order dated 9.4.2009. It is not the existence of power in the Code of Criminal Procedure but the manner in which in the given facts and circumstances, such power has been exercised, has been challenged in the present petition, seeking quashment of the proceedings. Must it, therefore, first refer to the facts as narrated by the Petitioners, as under. (1) One Rajani Kanta Biswas owned a plot of land measuring 1B OK 14L covered by Dag No. 35, tenancy Khatian No. 305 under Jotedar's Khatian No. 304 in Gaon-Bidyapur, Dhubri Town under Dhubri Circle in the district of Dhubri, Assam. He died leaving behind 3 sons and 6 daughters as his legal heirs. Petitioner No. 2 Sri Niresh Sarkar is one of his sons. Petitioner No. 1 Sri Situ Sarkar and Petitioner No. 4 Nitu Sarkar, are the sons of Sri Niresh Sarkar. (2) The Petitioner No. 3 and his two brothers have their dwelling houses in the land covered by Dag No. 35. Out of the total land covered by the said Dag, there is a vacant plot of land measuring 1 Katha, 5 Lechas and the said vacant plot is being used by the Petitioner No. 3's family for religious as well as social functions; organized by the family from time to time. Out of the total land covered by the said Dag, there is a vacant plot of land measuring 1 Katha, 5 Lechas and the said vacant plot is being used by the Petitioner No. 3's family for religious as well as social functions; organized by the family from time to time. (3) The informant of the FIR dated 18.6.2007 Smt. Mamata Bora with the help of some local goons dispossessed the Petitioner No. 3's family from the vacant plot of land referred to above and started construction thereon, claiming that she purchased the said plot of land from one Sri Himangshu Shil on 12.1.2007. (4) The objection raised by the Petitioner No. 3's family was not responded to by Smt. Mamata Bora and her men. Under such circumstances, the Petitioner No. 3's brother Sri Suresh Chandra Biswas filed a petition under Section 107 of Code of Criminal Procedure, 1973, before the Officer-in-charge, College Nagar T.O.P., on 10.2.2007 and the same was recorded in the police general diary as G.D.E. No. 201. (5) Thereafter, the legal heirs of late Rajani Kanta Biswas, i.e., Petitioner No. 3 and his brothers and sisters filed Title Suit No. 79 of 2007 before the court of Munsiff No. 1, Dhubri, Assam, for khas possession and permanent injunction against the Defendant Smt. Mamata Bora from constructing houses in the land measuring 1K-5L (one Katha, five Lechas) covered by Dag No. 35(old) No. 849/575(new), tenancy khatian No. 305 under Jotedar's Khatian No. 304, Patta No. 250, in Gaon-Bmyapara Part-I (Chit Nos. 3, 4) under Dhubri Circle in the District of Dhubri, Assam. The aforesaid Title Suit is pending before the court of Munsiff No. 1, Dhubri, Assam. (6) The Petitioner No. 3 lodged an FIR with the College Nagar Police Station, Dhubri District, against Smt. Mamata Bora and her 4 sisters on 15.2.2007 alleging that the accused persons have illegally encroached and started construction over the vacant plot of land and when objection was raised they threatened the Petitioner No. 3's family members with their lives. This FIR was registered as Dhubri P.S. Case No. 57/2007 under Sections 143/447/427/294/506, IPC. This FIR was registered as Dhubri P.S. Case No. 57/2007 under Sections 143/447/427/294/506, IPC. (7) Smt. Mamata Bora, thereupon, lodged an FIR with the Dhubri Police Station on 15.2.2007 alleging that Niresh Sarkar and his family, with the help of some local youths, illegally encroached on her land measuring about 1 katha, 5 lechas situated at No. 1 Bidyapara Village covered by Patta No. 250, Dag No. 849/575 by breaking down the bamboo fencing. This FIR was registered as Dhubri P.S. Case No. 56/ 2007 dated 17.2.2007 under Sections 147/447/427/294/323/354/506, IPC. (8) After completion of the investigation in both the cases, Final Report with regard to the abovementioned police cases was submitted by the police before the court of learned Chief Judicial Magistrate, Dhubri and accordingly, both the cases were closed and the accused persons were acquitted. (9) An FIR was lodged on 17.3.2007 by Sri Utpal Kumar Bhattacharya, the Head Master of No. 1330 Bidyapara Namasudrapara L.P. School, Dhubri, with the Dhubri Police Station against Smt. Mamata Bora and four other ladies. It was alleged in the said FIR that around 12 p.m. of 17.3.2007, the accused persons armed with weapons and with evil intention, unauthorizedly entered the school premises when classes were going on and verbally assaulted the Head Master and other Teachers using foul language. Further, the accused persons threatened the Teachers with their lives if Smt. Sabita Sarkar Choudhury is not appointed as Cook for preparing the mid-day meal. At that time, the Secretary of the said School Smt. Supriya Choudhury arrived and she was also verbally assaulted using obscene language and threatened her with life. This FIR was registered as Dhubri P.S. Case No. 94 of 2007 under Sections 147/448/294/506, IPC. This case has been registered as G.R. Case No. DBB 94/2007 before the court of learned Chief Judicial Magistrate, Dhubri. The trial in the aforesaid case is in progress. (10) On 18.6.2007, an FIR was lodged with the Dhubri Police Station against Smt. Mamata Bora by Smt. Bithika Choudhury and others alleging that at around 10.30 a.m., Smt. Bora along with her associates armed with lathis, spears, etc., forcefully entered the premises of No. 1330 Namasudrapara Bidyapara L.P. School and verbally assaulted everyone present using foul and obscene language, destroyed school properties and also started beating the people in the said school and severely injured them. The persons present in the school were also given threat to their lives. Further, the accused persons attempted to murder informant No. 1 Bithika Choudhury (Petitioner No. 2) by throttling her neck. The accused persons also locked the entrance to the school and illegally confined the Teachers inside the school. Thereafter, the accused persons threatened the informant and Head Master of the School to take their lives and kidnap their children. The said FIR was registered as Dhubri P.S. Case No. 316 of 2007 under Sections 147/447/325/427/294/324/506, IPC. (11) On 18.6.2007, an FIR was lodged by Smt. Mamata Bora against the present Petitioners at the Dhubri Police Station alleging that on 18.6.2007, at around 11 a.m., the accused persons i.e. the present Petitioners unauthorizedly entered their land armed with lathis and dragged her and her sister, who were standing in the compound, to the road and beat them up causing injuries to them. It was also alleged in the FIR that the informant's daughter Smt. Mamoni Bora was beaten up by accused No. 1, inflicting severe injury on her hand. Further, it was stated that the accused No. 2 had beaten the informant's sister Smt. Sabita Choudhury in her hand. It was also alleged that the informant's other daughter Shilmoni Bora and the informant herself were injured. This FIR was registered as Dhubri P.S. Case No. 313 of 2007 under Sections 147/447/325, IPC. (12) The said Dhubri PS. Case No. 94 of 2007 under Sections147/448/294/506, IPC, was registered as G.R. DBB 313/2007 before the Court of learned Chief Judicial Magistrate, Dhubri. After completion of the investigation, the police submitted final report dated 22.12.2008 before the said court. As against the FR received, the informant filed objection petition and the learned CJM, Dhubri, after perusing the objection petition and the case records, was of the view that there are materials to proceed against the accused persons named in the said FIR and by order dated 9.4.2009, after going through the CD, he was of the view that there were materials to proceed against the FIR named accused persons for allegedly committing offence under Sections 147/447/323, IPC read with Section 149, IPC. Accordingly, cognizance was taken and summon were issued to the accused persons, i.e., the present Petitioners to appear before the court and stand trial. 3. Ms. Accordingly, cognizance was taken and summon were issued to the accused persons, i.e., the present Petitioners to appear before the court and stand trial. 3. Ms. Borgohain, learned Counsel appearing for the Petitioners, submits that although the FR was submitted on 22.12.2007, the informant Smt. Mamata Bora (opposite party No. 2), filed the objection on 16.3.2009, i.e., after 1 year and 3 months. According to the learned Counsel, there was an unexplained and inordinate delay in filing the objection which is not permissible under the law. The learned Counsel further submits that the impugned order dated 9.4.2009 taking cognizance of offence, was passed without giving any notice and opportunity of hearing to the Petitioners and as such, it is not sustainable under the law. As per the impugned order aforementioned, according to her, the learned Chief Judicial Magistrate, Dhubri, issued summons to the accused Petitioners asking them to appear before his court and stand trial without providing them any opportunity to oppose the protest petition filed by the informant/opposite party No. 2. It is also submitted by the learned Counsel that the impugned order taking cognizance of the case on the basis of the objection filed by the opposite party No. 2 after the case was returned in FR by the police, should not have been passed by the learned Magistrate, for, the criminal proceedings initiated by the informant opposite party No. 2 is manifestly attended with mala fide and instituted with an ulterior motive for wrecking vengeance on the family of Petitioner No. 3 and with a view to pressurize them to hand over the plot of land for which a case against the informant opposite party No. 2 is pending in the civil court, as stated above. 4. Ms. Borgohain, learned Counsel, further submits that after return of the case in FR, the Magistrate concerned may accept the police report or direct the police for re-inquiry/re-investigation and cognizance of the case may be taken only after submission of fresh report by the police where new facts are unfolded. In this regard, the learned Counsel refers to a decision of the High Court in Jitendra Kumar Agarwalla v. State of Bihar and Anr. 2000 Cri. LJ 2730 in which references have been made to various cases rendered by the Apex Court as well as High Courts. 5. The aforesaid submissions of Ms. In this regard, the learned Counsel refers to a decision of the High Court in Jitendra Kumar Agarwalla v. State of Bihar and Anr. 2000 Cri. LJ 2730 in which references have been made to various cases rendered by the Apex Court as well as High Courts. 5. The aforesaid submissions of Ms. Borgohain, learned Counsel appearing for the Petitioners, has been strongly countered by Mr. Kaiyum, learned Counsel for opposite party No. 2, who submits that the Judicial Magistrate is not powerless to take cognizance of the case if he is satisfied from the materials made available by the investigating agency that the case may be proceeded again against the accused person under Section 190(1) of Code of Criminal Procedure, 1973 and as such, the impugned order taking cognizance of the case cannot be termed as illegal or unauthorized. In this respect, the learned Counsel relies on a decision of this Court in Irom Shyam Singh and Anr. v. State of Manipur and Ors. 2008 (2) GLT 825. The learned Counsel further submits that pendency of a civil suit in respect of the suit land cannot be a bar for proceeding with the criminal case. In support of his submission, the learned Counsel relies on M. Krishnan v. Vijay Singh and Anr. (2001) 8 SCC 645 wherein it is held that mere pendency of a civil suit between the parties cannot be a ground for quashing the criminal proceedings against the accused person and if such practice is allowed, it would be an easy way out for accused to avoid criminal proceedings. 6. I have given serious consideration on the submissions made by the learned Counsel appearing for the parties. By now, it is well settled that upon receipt of a police report under Section 173(2) of Code of Criminal Procedure, 1973, a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of Code of Criminal Procedure, 1973, even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Reading the provision under Section 190(1)(b) of Code of Criminal Procedure, 1973, it does not appear that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate is given the liberty/power to ignore the conclusion arrived at by the investigating officer and after independently applying his mind to the facts emerging from the investigation, take cognizance of the case under the aforesaid provision as prescribed in the Code of Criminal Procedure, 1973. The learned Magistrate can also direct to issue process against the accused. This position would be more clear if one goes through the relevant provision under Section 190(1) of Code of Criminal Procedure, 1973, which is quoted hereunder for ready reference: "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 especially empowered in this behalf under Sub-section (2), may take cognizance of any offences - (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." 7. The aforesaid position has been exhaustively discussed and explained by the Apex Court in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. (2004) 7 SCC 768 . Paragraph 9 of the aforesaid judgment is extracted below: 9. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate, he has again option of adopting one of the three courses open, i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2), a Magistrate is entitled to take cognizance of an offence under Section190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The informant is not prejudicial affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh case that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard. 8. The aforesaid law laid down by the Apex Court is to be applied to a given case only after considering the facts and circumstance. Here, in the present case, it is to be noted that criminal case was returned in FR on 22.12.2007 to the court of learned Chief Judicial Magistrate, Dhubri, and a notice was issued to the informant opposite party No. 2, as required under the provision of Section 173 of Code of Criminal Procedure, 1973, which she duly received on 22.12.2007 itself. 9. I have carefully gone through the records of Case No. GR(DBB)313/2009 and found that the informant opposite party No. 2 filed objection on 16.3.2009 after much delay i.e. after a period of one year and three months. No reason has been assigned by the informant opposite party No. 2 explaining such delay. Although there is no provision in the Code of Criminal Procedure, 1973, prescribing the period during which such objection is to be filed before the Magistrate concerned, it is expected that such objection should be filed without delay. In all the cases cited by the learned Counsel appearing for the informant opposite party No. 2, no such long delay has been found in issuing the process against the accused persons. In absence of any explanation offered on such delay, it is difficult to accept that the informant opposite party No. 2 filed the objection bona fide without any oblique motive. Propriety demands that before issuing the process of taking cognizance of the case after such a long unexplained delay, the learned Judicial Magistrate ought to have issued notice or given the opportunity of hearing to the Petitioners but admittedly, no such opportunity was afforded to the present Petitioners and as such, the impugned order dated 9.4.2009 issuing summons to the present Petitioners to appear before the court and stand trial, in my considered view, is unwarranted, unreasonable and unsustainable in law and the same is liable to quashed and set aside. Accordingly, I quash and set aside the impugned order dated 9.4.2009. Consequently, the proceeding in G.R. Case No. DBB 313/2007 pending in the court of learned Chief Judicial Magistrate, Dhubri, stands quashed. Petition accordingly stands allowed. However, there shall be no order as to costs. 10. Accordingly, I quash and set aside the impugned order dated 9.4.2009. Consequently, the proceeding in G.R. Case No. DBB 313/2007 pending in the court of learned Chief Judicial Magistrate, Dhubri, stands quashed. Petition accordingly stands allowed. However, there shall be no order as to costs. 10. Send down the LC Rs to the court below forthwith. Petition allowed.