Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 124 (GAU)

A BEGUM v. MUSSTT R SULTANA

2014-01-30

INDIRA SHAH

body2014
ORDER 1. This is an application under Section 482 Cr.P.C., whereby the order dated 20.05.2004 passed by the learned Sub-Divisional Judicial Magistrate (Sadar), Sivasagar taking cognizance of Complaint Case No. 77C of 2004 under Section 406 read with Section 34 of Indian Penal Code, has been challenged. 2. Heard Mr. P.K. Bora, learned counsel for the petitioners. None appears for the respondent. 3. The respondent, herein, is a married wife of the petitioner. The marriage between the parties was solemnized on 24.04.2003. On 23.04.2004 she lodged a complaint before the Chief Judicial Magistrate, Dibrugarh wherein, she alleged that she was subjected to torture and harassment on 27.03.2004 and 07.04.2004. The complaint was forwarded to the police by the learned CJM. The Officer In-charge of Dibrugarh P.S. registered a case under Section 498(A)/34 read with Dowry Prohibition Act. Vide order dated 05.05.2004, passed by learned Sessions Judge, Dibrugarh, the petitioner was allowed pre-arrest bail. The petitioner again filed a complaint case in the Court of Chief Judicial Magistrate at Sivasagar which has been registered as C.R. Case No. 77C of 2004 wherein narrating the fact that she was subjected to torture and harassment for which a police case is pending for investigation, she further contended that at the time of her marriage her parents gave gold and silver ornaments, wooden furniture and utensils which the petitioner has misappropriated. Learned SDJM, Sivasagar took the cognizance under Section 406 read with Section 34 IPC against the petitioner and others and issued summon to them. 4. Section 210 Cr.P.C. says that during an inquiry or trial relating to complaint case, an investigation by the police is in progress in respect of same offence, the Magistrate shall stay the proceeding of the complaint case and call for the report from the police officer conducting the investigation. 5. In the cited case of Sankaran Moitra v. Sadhna Das and Another (2006) 4 SCC 584 in para 76 and 77 of the judgment it has been observed by the Apex Court as under: “76. 5. In the cited case of Sankaran Moitra v. Sadhna Das and Another (2006) 4 SCC 584 in para 76 and 77 of the judgment it has been observed by the Apex Court as under: “76. A bare reading of the above provision makes it clear that during an inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he shall stay the proceedings of the complaint case and call for the record of the police officer conducting the investigation. 77. The object of enacting section 210 of the Code is threefold: (i) it is intended to ensure that private complaints do not interfere with the course of justice; (ii) it prevents harassment to the accused twice; and (iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once.” 6. Although the earlier complaint lodged by the respondent, is in respect of harassment and torture relating to dowry, it is pertinent to note that the date of occurrence mentioned in the earlier complaint case i.e. 07.04.2004 and a subsequent complaint case are same. In the earlier complaint case the respondent did not whisper that her properties were entrusted to the accused-petitioner and the petitioner misappropriated her ‘stridhan’ property or refused to return the property. In the present complaint, the respondent complainant categorically mentioned that she had lodged a complaint which has been forwarded to Dibrugarh Police Station and a police case has been registered. The dates of occurrence of the offence in both the cases are same and the parties in both the cases are also the same. It was incumbent upon the Magistrate under 210 Cr.P.C. to call for a report from the concerned police station before taking and cognizance of the offence but it was not so done. 7. In view of the above, the proceeding of C.R. Case no. 77C of 2004 pending in the Court of learned SDJM (Sadar), Sivasagar is hereby quashed. 8. This application under Section 482 Cr.P.C. is allowed. 9. Return the LCR alongwith a copy of this judgment.