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2012 DIGILAW 1132 (GAU)

Aminur Rahman v. Sahida Khatun

2012-09-24

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. By this petition filed under Sections 482 and 401 of Cr.P.C., the petitioners challenged orders dated 10.06.2011 and 24.06.2011, passed by learned SDJM, Bijni, in connection with C.R. Case No. 234/2011. Heard learned counsel, Mr. T.J. Mahanta for the petitioners. Notice was served on the respondent by registered post but the respondent has chosen to remain absent. Since it is a criminal petition, I have heard learned Addl. P.P., Assam, Mr. K.A. Majumdar. 2. It is submitted by learned counsel, Mr. Mahanta that the petitioners are the Sub-Inspector of Police, posted at Panbari Police Watch Post under Bijni Sub-Division and they went to village No. 2 Garaimari under P.S. Bijni on 08.06.2011 to investigate criminal case vide FIR No. 143 of 2011 and FIR No. 144 of 2011 and, when they went to arrest the accused persons, the accused persons of those cases including some women of the village assaulted the police officers and restrained them from discharging their official duties and, as a result, they had to return from the village and, thereafter, they lodged an FIR at Bijni PS vide FIR No. 157 of 2011 (Annexure-F to the petition). After the said FIR was lodged by the petitioners, the respondent, who is the wife of the main accused in the police case Nos. 143/2011 and 144/2011, lodged the criminal complaint before the learned SDJM, Bijni (copy annexed at Annexure-G to the petition) and learned SDJM, considering the complaint, had taken cognizance on 10.06.2011 under Sections 217 /352 /354 /384 /448 r/w Section 34 of IPC. The complainant, thereafter, filed a petition before learned SDJM, praying for withdrawal of the complaint vide Annexure-J to the petition but the learned SDJM by order dated 24.06.2011 rejected the petition, and therefore, the present petition is filed under Section 482 of Cr.P.C. on two grounds, namely (i) that a criminal proceeding is not maintainable against the petitioners without sanction as required under Section 197 of Cr.P.C. and that (ii) the rejection of petition seeking withdrawal was wrong and unjustified. It is contended by learned counsel, Mr. Mahanta that the case was triable as summons case, and therefore learned SDJM was wrong in rejecting the prayer of withdrawal petition filed by the complainant. 3. Learned Addl. It is contended by learned counsel, Mr. Mahanta that the case was triable as summons case, and therefore learned SDJM was wrong in rejecting the prayer of withdrawal petition filed by the complainant. 3. Learned Addl. P.P. has submitted that in the facts and circumstances of the case, learned Magistrate was supposed to pass an appropriate order on the petition filed by the complainant seeking withdrawal of the case since it is evident that the complainant might have instituted the case only to get rid of the charges of the police case. 4. The respondent, Sahida Khatun, filed a written complaint before the learned SDJM, Bijni, on 10.06.2011, alleging commission of offence punishable under Sections 448, 354, 384 r/w Section 34 of IPC against the accused petitioners and on receipt of that complaint as it appears, learned SDJM registered C.R. Case No. 234/2011 and passed impugned order dated 10.06.2011. The very first paragraph of the impugned order, dated 10.06.2011, reads thus: Complainant along with her witnesses present. The complainant and her witnesses are examined under Section 200, Cr.P.C. I have gone through the contents of the complaint petition as well as initial deposition of the complainant and her supporting witnesses. A careful reading of the part of order, as reproduced above, makes it clear that the learned Magistrate, at the inception, examined the complainant and her witnesses under Section 200 of Cr.P.C. and thereafter only he has gone through the contents of the complaint petition which makes it clear that before examination of the complainant and her witnesses learned Magistrate did not apply his mind to the complaint petition to take cognizance of the offence. Section 190 in Chapter XIV of Cr.P.C. prescribes provisions in respect of taking cognizance of offences by the Magistrate which reads thus: 290. 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. As prescribed above, the Magistrate has to take cognizance of the offence on receipt of complaint, filed by the complainant. Here, in this case, the learned Magistrate before taking cognizance entered into the provisions prescribed in Chapter XIV of Cr.P.C. and started examination of the complainant and her witnesses. The scheme of the provisions prescribed in Cr.P.C. in respect of taking cognizance and to proceed with inquiry subsequent thereto has lucidly been made clear that the Magistrate will exercise his jurisdiction in respect of inquiry only after taking cognizance of the offence and not before that. 5. The Supreme Court in the S.W. Palanitkar v. State of Bihar, reported in (2002) 1 SCC 241 has held that in case of a complaint under Section 200 of Cr PC, a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Where a jurisdiction is exercised on a complaint petition, filed under Section 200 of Cr.P.C., the magistrate is required to apply his mind at first to the complaint itself and take cognizance of the offence disclosed in the plaint. After taking cognizance the Magistrate will proceed to inquire into the truthfulness of the allegation or otherwise and then examine, if any offence is prima facie committed by all or any of the accused complaint. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The learned Magistrate, in course of inquiry as per the provisions prescribed in Chapter XIV of Cr.P.C., has to carefully scrutinize the offence brought on record and then would proceed to issue process against the accused. In the case at hand, the Magistrate has nowhere mentioned that he has taken a cognizance of offence on perusal of the complaint. It is always not required to be written with so many words. In the case at hand, the Magistrate has nowhere mentioned that he has taken a cognizance of offence on perusal of the complaint. It is always not required to be written with so many words. If the Magistrate applies his mind to the complaint and takes cognizance it is enough. There is nothing wrong in simultaneous taking of cognizance followed by examination of complainant and his witnesses and an order directing issue of process. In the case at hand, the learned Magistrate on receipt of complaint, before examination of the same as to whether it disclosed any offence or not, examined the complainant and her witnesses under Section 200 of Cr.P.C. and simultaneously directed issue of the process for an appearance of the accused persons. The order, passed by learned Magistrate, dated 10.06.2011, therefore, is found to be technically wrong and not according to the scheme of law prescribed by the Criminal Procedure Code and hence the order, dated 10.06.2011, is liable to be interfered and set aside. 6. In respect of order, dated 24.06.2011, as it appears, learned Magistrate observed that the case is triable as a warrant case since the offence includes warrant triable offence and so, the learned Magistrate was not wrong in not entertaining the petition filed under Section 257 of Cr.P.C. 7. The accused petitioners raised a point in respect of sanction, as required under Section 197 of Cr.P.C. to initiate a proceeding against them. It is an admitted fact that the petitioners did not approach the learned Magistrate on the ground of sanction. The accused-petitioners would approach the learned Magistrate with all materials in their hand and in the event they are dissatisfied with the order, passed by learned Magistrate, they may approach the superior competent Court of jurisdiction. 8. In view of the observations, made above, the order dated 10.06.2011 is set aside. 9. The case is remanded back to the learned Magistrate to proceed according to law, as indicated above. Send back the L.C. record along with a copy of this judgment.