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2016 DIGILAW 65 (MEG)

Samir Mandal v. State of Meghalaya

2016-12-06

VED PRAKASH VAISH

body2016
JUDGMENT : V.P. VAISH, J. 1. By way of the present petition under Section 482 of the Code of Criminal Procedure, 1973 (herein referred to 'Cr.P.C.'), the petitioner seeks quashing of proceeding being Laban Police Station Case No. 124 (11) of 2016 I.P.C. 2. The facts as culled out from the petition are that Mr. Sujit Malakar (complainant) gave a complaint dated 4th November, 2016 to the Officer-in-Charge Laban Police Station Shillong alleging that he is legally married to Mrs. Pinky Malakar and his wife is six months pregnant. But to his utter shock and surprise his wife was in a state of shyness and stayed aloof from the family for some time. After persuasion his wife disclosed the reason for her aloofness and informed that she has been raped (sexually assault) forcefully by one Samir Mandal (petitioner herein) who is a married man and ex-colleague and presently working in HDFC Bank, Bara Bazar Branch, Shillong in the month of May, 2016 and the child in her womb belongs to him. She did not disclose about the incident earlier due to fear of society as the same would bring both of their families to disrepute. Besides, she was also threatened with dire consequences by said Samir Mandal and depression built on her not to disclose to anybody. The said complaint was registered as G.D. Entry No. 9 dated 4th November, 2016 and on the basis of the said complaint FIR No. No. 124 (11) of 2016 under Section 497 I.P.C. was registered on 5th November, 2016 at Laban Police Station. 3. The petitioner alleged that the police commenced the investigation without any order of the Chief Judicial Magistrate. The petitioner moved an application under Section 436 Cr.P.C. but the same was not granted. The investigating officer served notice under Section 41(A) Cr.P.C. and the petitioner appeared before the investigating officer. 4. The petitioner has filed the present petition on two grounds. Firstly, offence under Section 497 I.P.C. as non-cognigible offence and the police authorities are debarred from investigating into the alleged offence without the order of a Magistrate as contemplated under Section 155 (2) of the Cr.P.C. Secondly, Court cannot take cognizance of an offence punishable under Section 497 I.P.C. without complaint made by the person aggrieved of the offence. 5. On the other hand, Mr. K.P. Bhattacharjee, learned APP of the State submits that the complaint made by Mr. 5. On the other hand, Mr. K.P. Bhattacharjee, learned APP of the State submits that the complaint made by Mr. Sujit Malakar discloses commission of offence under Section 376 I.P.C. He further submits that after receiving the complaint, preliminary enquiry was made from complainant and the victim. During preliminary enquiry, the complainant Mr. Sujit Malakar produced the mobile phone of his wife containing number of conversations between his wife and the petitioner wherein the petitioner claimed himself to be the father of unborn child which was in the womb of his wife and on the basis of the said message offence under Section 497 I.P.C. is attracted. 6. During the course of arguments Mr. D. Charkarborty, learned counsel for the petitioner submits that he does not want to pursue with the present petition and seeks permission to withdraw the present petition with liberty to avail appropriate legal remedy. 7. Mr. K.P. Bhattacharjee, learned APP of the State submits that he does not oppose the prayer made by learned counsel for the petitioner. 8. Having considered the facts and circumstances of the case and submissions made by learned counsel for the petitioner, the petition is dismissed as withdrawn. However, the petitioner is at liberty to avail appropriate remedy in accordance with law. 9. Before parting with the papers, it may be mentioned that the police is duty bound to register FIR if the information discloses commission of a cognisable offence and no preliminary inquiry is permissible in such a situation, in view of law laid down by Hon'ble Supreme Court in 'Lalita Kumari v. Government of Uttar Pradesh And Others' (2014) 2 Scc 1 . The complaint in question dated 4th November, 2016 prima facie discloses commission of offence of rape as the complainant has specifically alleged that Mr. Samir Mandal committed rape (sexually assaulted) forcefully on his wife which is punishable under Section 376 I.P.C. The act of police authorities in making inquiry from the wife of the complainant before registration of the FIR is likely putting cart before the horse. The callous attitude on the part of the investigating agency in not registering the FIR under appropriate offence despite the fact that the allegations in the written complaint were clearly disclosing the offence of rape. The callous attitude on the part of the investigating agency in not registering the FIR under appropriate offence despite the fact that the allegations in the written complaint were clearly disclosing the offence of rape. Time and again the Hon'ble Apex Court and various High Courts having emphasised that there should be sensitive approach on the part of police authorities in such type of heinous offences including sexual offence which is totally found missing in this case. 10. The Court is conscious of the fact that the investigation is still going on and thus it would not be appropriate to make threadbare analysis of the facts of the case and the investigation carried out so far lest it may prejudice either of the sides. At the same time it is expected by this Court that the SHO/Officer-in-Charge of the Police Station shall ensure that proper investigation will be carried out in accordance with law. 11. The present petition stands disposed of. CRL. Misc. Case No. 30 of 2016: The application is dismissed being infructuous.