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2015 DIGILAW 55 (CAL)

Namita Mahanta Sarkar v. State of West Bengal

2015-01-27

SHIB SADHAN SADHU

body2015
JUDGMENT : Shib Sadhan Sadhu, J. 1. This petition has been filed under Section 482/401 of the Code of Criminal Procedure, 1973 seeking quashment of the proceedings being G.R. Case No.35 of 2014 arising out of Balurghat P.S. Case No.18/2014 dated 12.01.2014 under Section 302/201/34/195A IPC and 25 (1)(a)/27 Arms Act, in which charge sheet bearing No.127 of 2014 dated 09.04.2014 has been filed in the Court of Chief Judicial Magistrate, Balurghat, Dakshin Dinajpur against the petitioner. 2. As per prosecution, the de facto complainant Amal Halder lodged a written complaint before the I.C., Balurghat P.S. to the effect that on 11.01.2014 at about 11 P.M. his son Ram Prasad Halder receiving a call in his mobile phone left the house. Before leaving he told his father that he would return after sometime. But he did not return home throughout the whole night. Then in the early morning hours the de facto complainant called him in his mobile phone but it was switched off. So the de facto complainant came to P.S. to enquire about the whereabouts of his son. In the meantime he came to learn from the friends of his son that a man died sustaining sharp cut injuries and the dead body was lying in the Airport area. He rushed to that place and identified the dead body to be of his son. Thereafter, he lodged the complaint on the basis of which Balurghat P.S. Case No.18 of 2014 dated 12.01.2014 under Section 302/201/34 IPC was registered. 3. During investigation one witness Sagari Halder lodged a complaint before the I.C., Balurghat P.S. alleging that on 23.01.2014 at about 2.30 P.M. the police took the accused persons to that place where the dead body of the deceased was found and recovered some incriminating articles in pursuance of the statement made by the accused and seized those articles under a seizure list. That witness Sagari Halder also signed the seizure list. After police left the place some of the co-accused along with the present petitioner came to her house and threatened her and asked her not to give evidence in the case otherwise she will be killed. A G.D. Entry was made on the basis of such complaint. Thereafter, on completion of investigation charge-sheet was submitted implicating the present petitioner also under Section 302/201/34 IPC adding Section 195A IPC and under Section 25(1)(a)/ 27 Arms Act.. 4. A G.D. Entry was made on the basis of such complaint. Thereafter, on completion of investigation charge-sheet was submitted implicating the present petitioner also under Section 302/201/34 IPC adding Section 195A IPC and under Section 25(1)(a)/ 27 Arms Act.. 4. The Learned Advocate appearing on behalf of the petitioner submitted that the petitioner was not named in the FIR and there is no material collected against her so as to implicate her with the alleged offence save and except under Section 195 A IPC which has been levelled against her only on the basis of that complaint lodged by the witness Smt Sagari Halder during the course of investigation which according to him is absolutely illegal and is nothing but gross abuse of the power of the investigating agency. 5. Mr. Safiullah further contended that the offence under Section 195A of the IPC can only be registered after following the procedure as prescribed under Section 195(1)(b) (i) of the Cr.P.C., whereby it is apparent that the Court shall take cognizance of an offence punishable under Sections 193 to 196 (both inclusive), when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court only on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is sub-ordinate. The complaint has been defined under Section 2(d) of the Cr.P.C. The complaint to the police or an information to the police by the private person would not fall within the definition of complaint, because the compliant would mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code. As per Section 2(d), the charge-sheet filed by the police on information from a witness would not partake the character of complaint. Thus, according to him, cognizance of an offence cannot be taken under Section 195 A IPC without filing any complaint by the Court concerned. Therefore, the charge-sheet filed against the petitioner is liable to be quashed, treating it to be a rare of the rarest cases of abusing the process of the Court, invoking the powers by this Court under Section 482 of the Cr.P.C. 6. Therefore, the charge-sheet filed against the petitioner is liable to be quashed, treating it to be a rare of the rarest cases of abusing the process of the Court, invoking the powers by this Court under Section 482 of the Cr.P.C. 6. On the other hand, Learned Advocate appearing for the State submitted that the Section 195A IPC has been inserted in the Penal Code by Amendment with effect from 16.04.2006 as a remedial measure to check the threatening or inducing any person to give false evidence and for that punishment of imprisonment up to seven years has been prescribed. He further submitted that such offence has been made cognizable which implies that police can investigate into such complaint and submit report. Therefore, on receiving the complaint during investigation from the witness Sagari Halder who was threatened by this petitioner not to give evidence, has rightly been investigated and charge-sheet has rightly been filed against the present petitioner under Section 195A of IPC. Mr. Basu, therefore, would, contend that it is not a case which fall within one of the rare of rarest cases as contended by his learned adversary and thus the proceeding is not liable to be quashed and the petition should be dismissed. 7. After having heard the rival submissions, the moot question arises for consideration is whether in absence of any complaint lodged by the concerned Court against the present petitioner she can be proceeded against and tried under Section 195A of the IPC on the strength of the charge sheet filed against her. 8. Deliberating on this score, I think it appropriate to mention that the Hon’ble Supreme Court in the case of Anil Ritolla @ A.K. Ritolia reported in AIR 2007 SC (Supp.) 1002 : 2008 Cr.L.J.353 has observed that when the statute provides a think to be done in particular manner for a particular remedy, then appropriate action should be taken thereunder. 9. It is very surprising that the police has registered an offence under Section 195A IPC also against the present petitioner and the Court has taken cognizance thereupon. 9. It is very surprising that the police has registered an offence under Section 195A IPC also against the present petitioner and the Court has taken cognizance thereupon. As per Section 195 of the Cr.P.C., it is apparent, the prosecution is for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence, to which procedure falls under Section 195 (1)(b) of Cr.P.C. Thereby, no court shall take cognizance of an offence punishable under Sections 193 to 196 (both inclusive) of IPC except on a complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is sub-ordinate. Complaint has been defined under Section 2(d) of the Cr.P.C. which is reproduced herein below as under: "Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." 10. Undisputedly the Investigating Officer has received an information in the present case from an witness where upon offence was registered by him under Section 195A of IPC and Challan has been filed before the Court who has taken the cognizance. In my opinion the said action does not satisfy the requirement of Section 195 of Cr.P.C. Once Section 195 Cr.P.C. uses the word "complaint" which is defined under Section 2(d), then it may be understood, the complaint must be oral or in writing to a Magistrate. The Challan filed by the police on some information of somebody would not partake the character of a complaint as provided under Section 2(d), because it does not include a police report. I am fortified to make such observation from the ratio of the judgment of the Hon’ble Supreme Court in the case of State of Punjab v. Brij Lal Palta reported in AIR 1969 Supreme Court 355. 11. I am fortified to make such observation from the ratio of the judgment of the Hon’ble Supreme Court in the case of State of Punjab v. Brij Lal Palta reported in AIR 1969 Supreme Court 355. 11. In State of Haryana v. Bhajanlal, 1992 Supp (1) SCC 335 :1992 SCC (Cri) 426 : AIR 1992 SC 604 the Hon’ble Supreme Court observed that the extraordinary power under Article 226 or inherent power under Section 482 of the Criminal Procedure Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary power or inherent powers do not confer an arbitrary jurisdiction upon the court to act according to its whim or caprice. 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. The Hon’ble Supreme Court noted the following categories of cases wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court 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 and precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (i) 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 entirety do not prima facie constitute any offence or make out a case against the accused. (ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose 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. (iii) Where the controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (iii) Where the controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (iv) Where, the allegations in the FIR 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 Magistrate as contemplated under Section 155(2) of the Code. (v) Where the allegations made in the FIR 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. (vi) Where there is an express legal bar engrafted in any of the provisions of Code or the concerned Act under which a 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. (vii) Where a criminal proceeding is manifestly attended with mala-fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 12. Thus as per the aforesaid guideline if the proceedings/prosecution clearly appears to be abuse of process of law, then inherent power of this Court under Section 482 of Cr.P.C. may be invoked. In the facts of the present case as discussed hereinabove it is apparent that the ingredients of the offences under Section 302/201/34 IPC and 25(1)(a)/27 Arms Act are conspicuously missing, while the registration of an offence under Section 195A of IPC by police is expressly barred, since the procedure as specified under Section 195(1)(b) of Cr.P.C. has not been followed. Therefore, the filing of the charge-sheet bearing No.127/2014 before the Court of Chief Judicial Magistrate, Balurghat, Dakshin Dinajpur is clearly abuse of process of law and in my opinion, it is one of the rare of the rarest cases in which inherent powers under Section 482 of Cr.P.C. deserves to be invoked. 13. Consequently this petition is allowed. The charge sheet as filed against the present petitioner for an offence under Section 302/201/34/195A IPC and under Section 25(1)(a)/27 Arms Act is hereby quashed. However, I make no order as to cost.