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2015 DIGILAW 936 (CAL)

Susanta Kumar Das v. Bhikhari Mohan Das

2015-12-01

SANKAR ACHARYYA

body2015
JUDGMENT : Sankar Acharyya, J. This application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 has been filed by petitioner challenging an order dated 21.10.2014 passed by learned A.C.J.M., Contai in connection with C.R. Case No. 202 of 2014 under Sections 147, 149, 304, 307, 32, 322, 324, 326, 354, 356, 380, 382, 391, 394, 441, 442, 442, 444, 446, 450, 451, 452, 454, 457, 506, 34 of the Indian Penal Code. 2. Petitioner filed the complaint of C.R. Case No. 202 of 2014 in the Court of learned A.C.J.M., Contai alleging an occurrence took place in their house in the midnight at about 11:00/11:30 p.m. on 28.09.2014 when the private opposite parties committed forcible house trespass, assault on petitioner’s brother Siddhartha Das, his wife - Pampa, minor daughter Sukanya and two children with attempt to commit murder to Siddhartha, outraged modesty of Pampa and Sukanya with an attempt to commit rape on them, attempt to kidnap Sukanya and looted away cash amounting to Rs.25,000/-, gold ornaments, utensils, paddy bags and a mobile phone. The petitioner informed the matter to Khejuri Police Station but police did not take proper steps. Thereafter, petitioner filed the complaint before learned A.C.J.M., Contai with prayer for sending the same under Section 156(3) of the Code of Criminal Procedure to Officer-in-Charge of Khejuri Police Station for police investigation. But learned Magistrate rejected the prayer under Section 156(3) of the Code of Criminal Procedure and took cognizance of the alleged offences passing the impugned order dated 21.10.2014. According to petitioner, said order is bad in law and liable to be set aside. 3. At the time of hearing learned Advocate for the petitioner has argued that in the complaint, petitioner alleged commission of several cognizable offences with allegation against Officer-in-Charge of Khejuri Police Station that even getting information of the cognizable offences Police of Khejuri Police Station did not record FIR and so learned Magistrate ought to have sent the complaint to Officer-in-Charge of Khejuri Police Station for registering a case treating the complaint as FIR under Section 156(3) of the Code of Criminal Procedure. In order to substantiate his arguments learned Advocate for the petitioner relied upon a decision of Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh & Ors. In order to substantiate his arguments learned Advocate for the petitioner relied upon a decision of Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh & Ors. reported in 2008 (1) All India Criminal Law Reporter 478 and a Full Bench decision of Allahabad High Court in the case of Jagannath Verma & Ors. Vs. State of Uttar Pradesh & Anr. reported in 2015 (1) All India Criminal Law Reporter 340. 4. On going through the certified copies of impugned order dated 21.10.2014 and of petitioner’s complaint submitted before learned A.C.J.M., Contai it appears that learned Magistrate held in the impugned order, “Considering the facts and circumstances of this case as well as the available documents on record, I think there is no ground for invoking the provision of Section 156(3) of the Code of Criminal Procedure. Accordingly, the prayer under Section 156(3) of the Code of Criminal Procedure is refuse. 5. Let the petition of complained be registered as complaint case. 6. Cognizance is taken. 7. Let the case record is sent to learned Judicial Magistrate, 1st Court for this disposal. 8. To 03.12.2014 for appearance of complainant before the learned Judicial Magistrate, 1st Court. The complaint contains a series of relevant and irrelevant Sections of Indian Penal Code for application in the case. Without mentioning each Section as illustration it may be mentioned that without making any allegation of death of any person Section 304 of the Indian Penal Code has been written to show a cognizable offence by exaggeration. From the complaint it also appears that a series of litigations between petitioner and private opposite parties are pending in Court. Allegation has been made that police personnels of Khejuri Police Station are in criminal abetment and involvement to the private opposite parties by direct instigation to them (vide para- 8). In the complaint petitioner has given a list of nine witnesses including two police officers of Khejuri Police Station and one Medical Officer of Primary Health Centre. The other six witnesses are petitioner’s three brothers Siddhartha, Prasanta and Jayanta, Siddhartha’s wife Pampa and daughter Sukanya and Jayanata’s son Chinmay. 9. On going through cited decisions I like to note that I have no hesitation to hold that this revisional application is maintainable in law. The other six witnesses are petitioner’s three brothers Siddhartha, Prasanta and Jayanta, Siddhartha’s wife Pampa and daughter Sukanya and Jayanata’s son Chinmay. 9. On going through cited decisions I like to note that I have no hesitation to hold that this revisional application is maintainable in law. I do not find any observation in the two reported cases that there is any mandate of law for sending a complaint by a Magistrate to Officer-in-Charge of Police Station without having alternative option. In the Full Bench decision reported in 2015 (1) All India Criminal Law Reporter 340 quoting in para- 6 at page- 344 a decision of the Supreme Court reported in 2007 (4) All India Criminal Law Reporter (SC) 194 it has been mentioned, “The problem, it was noted, arises where an informant cannot himself collect evidence against the accused and produce before the Magistrate. In such cases, investigation by police is necessary”. In the case on hand petitioner’s evidence is with his brothers, brother’s wife, brother’s daughter and brother’s son together with two police officers and a medical officer. As such, it cannot be said that petitioner has any difficulty in collecting evidence. In paragraph 34 of the decision reported in 2015 (1) All India Criminal Law Reporter 340 (Supra) it has been held. “34. Now it is in this background that it would be necessary for the Court to consider the import of an order passed by the magistrate declining to issue a direction under Section 156(3) ordering an investigation as specified in Sub-Section (1). When a written complaint is made before a magistrate disclosing a cognizable offence, the magistrate may send the complaint to the concerned police station under Section 156(3) for investigation. If this course of action is adopted, the police is required to investigate into the complaint. On the completion of the investigation, a report is submitted under Section 173(2), upon which a magistrate may take cognizance under Section 190(1)(b). Alternately, when a written complaint disclosing a cognizable offence is made before a magistrate, he may take cognizance under Section 190(1)(a), in which event he has to proceed in accordance with the provisions of Chapter XV. The exercise of the power under Section 156(3) is before the magistrate takes cognizance. Alternately, when a written complaint disclosing a cognizable offence is made before a magistrate, he may take cognizance under Section 190(1)(a), in which event he has to proceed in accordance with the provisions of Chapter XV. The exercise of the power under Section 156(3) is before the magistrate takes cognizance. Once the magistrate has taken cognizance under Section 190, it is not open to him to switch back to Section 156 (3) for the purpose of ordering an investigation. Section 200 requires that the magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses, if any. Section 202 enables the magistrate to postpone the issuance of process against the accused on receipt of a complaint of an offence of which he is authorised to take cognizance, in which event he may follow one of the following courses:- (i) The magistrate may, either enquire into the case himself; or (ii) The magistrate may direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purposes of deciding whether or not there is sufficient ground for proceeding. 10. However, the two provisos to Section 202 stipulate that no direction for investigation shall be made – (i) Where it appears that the offence complained of is triable exclusively by the Court of Session; or (ii) In a complaint which has not been made by a Court, unless the complainant and the witnesses present, if any, have been examined on oath under Section 200. 11. The proviso to Sub-Section (2) stipulates that if it appears to the magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. Under Section 203, upon considering the statements on oath, if any, of the complainant and of the witnesses and the result of the enquiry or investigation, if any, under Section 202, if the magistrate of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint recording brief reasons”. 12. In respect of the decision of Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh & Ors. 12. In respect of the decision of Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh & Ors. reported in 2008 (1) All India Criminal Law Reporter 478 I am of the view in this case in hand that learned A.C.J.M., Contai is very much competent to pass order for registering the case by police treating the complaint as FIR. At the same time the avenue for his taking cognizance under Section 190 of the Code instead of sending the complaint under Section 156 (3) of the Code is not closed. He has adopted this alternate avenue in the impugned order which appears to me lawful. 13. Regarding legality, propriety and correctness of the impugned order I find and hold that learned A.C.J.M. has passed the impugned order legally within his jurisdiction. The order is very much appropriate considering the facts that the petitioner is a practising advocate and the witnesses as per list given in the complaint of alleged incidents are his house inmates and there is no difficulty of petitioner to produce the witnesses in Court without police assistance. Therefore, the impugned order is found legal, appropriate and correct. 14. As a result, the revisional application is considered as devoid of merits and dismissed. 15. Interim order, passed earlier is vacated. 16. A copy of this judgment be sent to learned A.C.J.M., Contai for information. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties promptly observing all requisite legal formalities.