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2019 DIGILAW 412 (GAU)

Surjeet Singh Panesar v. Renu Probha Brahma

2019-04-02

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. By this application u/s. 482 CrPC, the petitioner has sought for quashing of the order of taking cognizance dated 21.11.2016 and order dated 29.04.2017, by the learned Judicial Magistrate 1st Class, Kokrajhar, in C.R. Case No. 456/2013, u/s. 354 IPC as well as the entire proceeding. 2. Necessary brief of the case is that respondent Renu Prabha Brahma filed a complaint before the CJM, Kokrajhar, alleging inter alia that the present petitioner entered into her house in the night of 17.11.2012 and arrested her husband Mono Kumar Brahma on false allegation of keeping arms and ammunition in their house and also torn the clothes of the complainant and thereby outraging her modesty. The said complaint was forwarded to the O.C., Kokrajhar P.S. and accordingly the Kokrajhar P.S. Case No. 2548/2012, u/s. 354/506 of the IPC was registered. After the investigation, final report was submitted before the Court with a prayer to lodge a complaint against the complainant u/s. 211 of the IPC, for filing false case. 3. As and when notice was served upon the complainant/respondent herein about the filing of final report, the respondent filed an objection against such final report. Thereafter the court registered the said petition as C.R. Case No. 456/2013 and after examining the respondent and other witnesses, took cognizance of the offence, u/s. 354 IPC by the impugned order dated 21.11.2016. 4. Challenging the aforesaid order of taking cognizance and subsequent orders, the present petition has been preferred on the ground that the order of taking cognizance by the learned trial Court is without application of mind, there being no any legal evidence and the case has been filed out of grudge by the respondent who is the wife of the accused arrested in connection with Kokrajhar P.S. Case No. 246/2016. 5. Heard the submission of learned counsel for the petitioner as well as the learned counsel for the respondent. 6. It has been urged before this Court that the learned trial court has erred in taking cognizance of the offence against the accused petitioner who is a public servant and the accusation made by the respondent/complaint is not itself supported by her own witnesses that were examined u/s. 202 CrPC. 6. It has been urged before this Court that the learned trial court has erred in taking cognizance of the offence against the accused petitioner who is a public servant and the accusation made by the respondent/complaint is not itself supported by her own witnesses that were examined u/s. 202 CrPC. The learned Court below failed to appreciate that the object of inquiry u/s. 202 CrPC is to ascertain whether the allegation made in the complaint are intrinsically true or not prior to taking cognizance and it is imperative on the part of the learned trial Court to apply his mind to the allegation and the entire facts and circumstances whether, if proved would constitute an offence or not. 7. The initial complaint, subsequent objection as well as the testimony of witnesses that were examined u/s. 202 CrPC were referred and discussed as well as the relevant background as to why the accused petitioner went to the house of the respondent is also submitted before this Court. 8. It is the admitted background of the case that the present petitioner who happened to be the Addl. SP (Headquarters), Kokarajhar on 17.11.2012 along with his staff and BSF jawans conducted a raid in the house of the executive member of BTC, Sri Manu Kumar Brahma, at about 4.45 A.M. and recovered some illegal arms and ammunition and arrested him, on the basis of which Kokrajhar P.S. Case No. 2542/2012 was registered u/s. 120(B)/121/120(B)/122/153(A) of the IPC read with Section 25(1-A) of the Arms Act. 9. The wife of the said Mani Kumar Brahma, the respondent herein, lodged a complaint with the court on 19.11.2012 vide C.R. Case 2103/2012, alleging that the accused petitioner forcibly entered into their residence and made search in their house in presence of both the complainant and her husband as well as neighbor and nephew of the complainant namely Daneswar Gayari, Rinku Narzary, Kalyan Brahma, Niran Narzary and nothing was found during the course of the search, the petitioner falsely showed recovery of an AK-47 rifle and some ammunitions from their house and threatening the persons present, arrested her husband and forcibly tore the clothes of the complainant and outraged her modesty. On being forwarded, the said complaint was registered as Kokrajhar P.S. Case No. 2548/2012, u/s. 354/506 of the IPC and after completion of the investigation, the police submitted final report on the ground that the husband of the complainant, executive member of BTC was arrested from his residence by the accused petitioner Surajit Singh after conducting a raid in his residence on the charge of aiding ethnic violence by keeping illegal arms in his residence for supplying the same to terrorists and during the raid two AK-47 rifles, two magazines and 16 rounds of ammunition were recovered from his residence and the complainant brought false allegation against the police to save her husband from the case that was registered against her husband vide Kokrajhar P.S. Case No. 2548/2012 and the said case is still pending against the husband of the respondent. 10. The learned trial court after receiving such final report notified the informant/respondent who in turn raised objection and her objection was registered as Complaint Case No. 456/2013 and after examining the respondent as well as the other witnesses u/s. 202 of the CrPC, took cognizance of the offence u/s. 354 of the IPC by the order dated 21.11.2016, holding that in view of the testimony of the complainant and her witnesses, the offence u/s. 354 of the IPC is made out for proceeding against the petitioner. The court further held that in terms of Section 197(1) of the CrPC, sanction is not required for an offence u/s. 354 of the IPC. 11. The impugned order is challenged in this petition submitting that in the given background when the petitioner went to the house of the respondent in discharge of his duty having no intention to outrage the modesty of the woman and due to resistance offered by the respondent wife she was simply pushed aside by the petitioner while taking her husband into custody. In such a situation the offence u/s. 354 of the IPC is not made out. 12. As submitted, this court went through the entire materials on record as well as the evidence of the respondent given u/s. 200/202 of the CrPC and annexure to the LCR. 13. Respondent examined seven witnesses at the time of inquiry u/s. 202 of the CrPC, including herself. 12. As submitted, this court went through the entire materials on record as well as the evidence of the respondent given u/s. 200/202 of the CrPC and annexure to the LCR. 13. Respondent examined seven witnesses at the time of inquiry u/s. 202 of the CrPC, including herself. All the witnesses have referred to the same incident that on 17.11.2012 the petitioner conducted raid in their house and apprehended the husband of the complainant/respondent forcefully and her husband (CW 7) was dragged away by the BSF jawans and when she made obstruction then she was allegedly behaved rudely and torn apart her blouse. If we go by the evidence of the other witnesses regarding the offence alleged as stated by the CW 3, CW 4, PW 5 and CW 7, it will be found that all of them have stated that that at the time when the respondent raised protest for taking her husband there was some push and pull and the blouse of the complaint was torn in the process. Thus, none of the witnesses have ever implicated the petitioner that he intended to outrage the modesty of the respondent; rather, it is clearly made out that the respondent herself has obstructed the petitioner while discharging his duty. It is not a case at all that the petitioner went to the house of the accused with the sole intention to outrage the modesty of respondent but he went to their house only to apprehend her husband who is a criminal. The final report has also revealed that several arms and ammunitions were recovered from the husband of the respondent. That being the position it is discernible that the learned trial court has mechanically relied on the statement of the respondent without appreciating the entire episode. Her own witnesses have not supported her allegation and from her own conduct it reveals that she has intended to frustrate the due execution of law conducted by the petitioner being a police officer. In the given background while there is no legal evidence to constitute an offence u/s. 354 of the IPC, the cognizance of offence is barred on the public servant u/s. 197 of the CrPC. 14. Section 354 of the IPC read as follows: "354. Assault or criminal force to woman with intent to outrage her modesty. In the given background while there is no legal evidence to constitute an offence u/s. 354 of the IPC, the cognizance of offence is barred on the public servant u/s. 197 of the CrPC. 14. Section 354 of the IPC read as follows: "354. Assault or criminal force to woman with intent to outrage her modesty. - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine". 15. What amounts to criminal force is explained u/s. 350 of the IPC, which reads as follows: "350. Criminal force. - Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. " 16. The given background of the case reveals that whatever force used by the petitioner in pushing the respondent while she restrained him from arresting her husband cannot be termed as a criminal force within the meaning of Section 350 of the IPC. Whatever has happened is only because of sudden obstruction created by the respondent herself, there was no culpable intention of the accused to outrage the modesty as defined u/s. 354 of the IPC. The essence of a women's modesty is her sex. The culpable intention of the accused is the crux of the matter. Going by the entire incident as divulged, no criminality can be attributed to the petitioner for the alleged offence. It can be safely inferred that the respondent has exaggerate her version to suit her interest as her own witnesses have not supported this crucial aspect. 17. The Hon'ble Supreme Court, in Pepsi Foods Ltd. vs. Judicial Magistrate, reported in (1998) 5 SCC 749 held as follows: ".................summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. 17. The Hon'ble Supreme Court, in Pepsi Foods Ltd. vs. Judicial Magistrate, reported in (1998) 5 SCC 749 held as follows: ".................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 order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused". 18. The instant case revealed that the learned trial court has not applied the judicial mind to the facts and circumstances appeared before the court and about the fact that the witnesses produced by the respondent has also not supported the aforesaid contention of outraging modesty of the complainant. The learned trial Court has take cognizance solely on the testimony of the respondent, which is not even a half of truth. 19. The finding of the learned Magistrate that the sanction is not required for an offence u/s. 354 of the IPC is obviously not a sound reasoning when the ingredients of offence u/s. 354 of the IPC itself are not made out. 20. Learned counsel for the respondent justifying the order of taking cognizance has submitted that there is no illegality in taking cognizance by the learned trial court in view of the statement of the respondent for quashing of the complaint at the initial stage. 21. I am unable to sustain the submission of the learned counsel for the respondent in view of the discussions made above. 22. Relying upon the guidelines rendered by the Hon'ble Apex Court in State of Haryana and others vs. Bhajan Lal and others, reported in 1992 Supp. 21. I am unable to sustain the submission of the learned counsel for the respondent in view of the discussions made above. 22. Relying upon the guidelines rendered by the Hon'ble Apex Court in State of Haryana and others vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335, it has been submitted by learned counsel for the petitioner that as in the present case, uncontroverted allegations in the complaint and evidence do not constitute any offence against the accused, so the cognizance is barred. Again, it is also submitted that the criminal proceeding has been maliciously instituted by the complainant only for wreaking vengeance on the accused due to arrest of the husband of the complainant, which is discernible from her conduct. 23. On the next, that the power u/s. 482 CrPC can be exercised when there is no legal evidence, reliance has been placed on the decision of State of Maharashtra and others vs. Arun Gulab Gawali and others, reported in (2010) 9 SCC 701 , wherein the decision of R.P. Kapur vs. State of Punjab reported in AIR 1960 SC 866 has been relied and discussed as below: "(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction; (iii) Where the allegations in the first information report or the complaint taken at the face value and accepted in their entirety, do not constitute the offence alleged; and (iv) Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge". 24. As regards the purpose of enquiry u/s. 202 CrPC, it has been held in Chandra Deo Singh vs. Prakash Chandra Bose, reported in AIR 1963 1430, it has been held that: "........................ No doubt, one of the objects behind the provisions of s. 202, Cr.P.C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. No doubt, one of the objects behind the provisions of s. 202, Cr.P.C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant..................". 25. The observation of the Hon'ble Supreme Court regarding taking cognizance as held in (2008) 17 SCC 157 (Fakhruddin Ahmed vs. State of Uttaranchal and another), has been relied by the learned counsel for the petitioner wherein it has been held that "..................... it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender". 26. Cognizance is in regard to the offence and not the offender". 26. So far as the necessity of sanction as against the public servants like petitioner, the learned counsel for the petitioner has relied on the decision of (2006) 1 SCC 294 (Romesh Lal Jain vs. Naginer Singh Rana and others) to submit that the plea relating to sanction should be considered at the early stage of proceeding and the real test warranting sanction would be as to whether the acts complained of concerned with the discharge of official duties by the public servant. 27. Lastly observation of the Hon'ble Supreme Court regarding taking cognizance as held in (2008) 17 SCC 157 (Fakhruddin Ahmed vs. State of Uttaranchal and another), has been relied by the learned counsel for the petitioner wherein it has been held that "..................... it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender". 28. I have gone through the decision relied by the petitioner. Also took note that the learned Court has taken cognizance on protest petition, after filing of final report. 29. The position is well settled that upon receipt of a police report u/s. 173(2) a Magistrate is entitled to take cognizance of offence under Section 190(b) of the Code, even if the police report is to the effect that no case is made out against accused. The Magistrate can take into account statement of witnesses examined by the police during investigation and take cognizance of the offence if he thinks it fit and he is not bound to follow the procedure envisaged in Sections 200/202 of the Cr.P.C. 30. The Magistrate can take into account statement of witnesses examined by the police during investigation and take cognizance of the offence if he thinks it fit and he is not bound to follow the procedure envisaged in Sections 200/202 of the Cr.P.C. 30. In Moinul Hoque vs. State of Assam, reported in 2013 (4) GLT 1038, it his held that when a police officer after investigation has return the case in final report on the ground of insufficient evidence, if the complaint nevertheless wants to protest, thereby inviting the Magistrate to take cognizance under section 190(1)(a), if it were be so, the protest petition filed would have to satisfy the requirement of a complaint as defined in Section 2(2)(d) of the CrPC and that the complaint should contain allegations of fact which constitute the offences upon which alone the Magistrate can take cognizance under section 190(1)(a) of the CrPC. However, if the protest petition does not contain any allegation of facts which can constitute an offence or is without containing those necessary particulars that a normal complaint has to contain, it cannot be treated as a complaint for the purpose of proceeding u/s. 200 of the CrPC. 31. In Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke, reported in (2015) 3 SCC 123 , the same principle is reiterated that the Court is not bound by the report submitted by police and the Magistrate is still free to reject the report and take cognizance, but for the purpose of taking cognizance of an offence the legal requirement to constitute the offence u/s. 190(1)(b) of the Code is to be fulfilled. However, once the legal requirement to constitute the offence qua the accused is lacking there is no point of taking cognizance and proceeding further against him. 32. On the point of requirement of sanction u/s. 197 CrPC, the Hon'ble Apex Court in (1997) 10 SCC 772 (State through the CBI vs. B.L. Verma and another), (2004) 8 SCC 40 (State of Orissa vs. Ganesh Chandra Jew) and (2015) 12 SCC 231 (D.T. Virupakshappa vs. C. Subash) held that: "The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case". 33. Further the Hon'ble Apex Court is of view that even if the public servant acted in excess of his duty, if there exist the said reasonable connection between the act complained of and the official duty, the excess will not deprive him of protection. 34. In State through the CBI vs. B.L. Verma (Supra) it has been held that where the actions alleged against the public servant and the constituting offence had been done in purported discharge of his duties, even though amounting to abuse of power, held, the trial court could not, in absence of sanction under S. 197, take cognizance of the said offence. 35. The issue of "police excess" during investigation and the requirement of sanction for prosecution has been discussed in State of Orissa vs. Ganesh Chandra Jew (Supra) and same position has been reiterated in D.T. Virupakshappa (Supra) that 'if in doing his official duty, one acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection'. 36. 36. Admittedly in the present case, the petitioner being a police officer was discharging his official duty while he went to the house of the complainant to arrest her husband along with BSF personnel and in presence of several members of family and other independent witnesses, conducted raid in the house of the complainant/respondent and received certain amount of arms and ammunitions from their house and due to obstruction raised by the complainant, she was pushed aside, so as to take her husband into custody. As has been discussed above, the cognizance taken by the Magistrate only on the basis of protest petition without their being ingredient of the offence being disclosed, is bad in law. 37. For the reasons and discussions above, taking of cognizance by learned Court, that, too, without prosecution sanction, is bad in law and liable to be interfered into. 38. Resultantly the petition is allowed and the entire proceeding pertaining C.R. Case No. 456/2013, u/s. 354 IPC pending before the learned Judicial Magistrate 1st Class, Kokrajhar, is hereby quashed and set aside. 39. Return the case record with a copy of judgment to the learned trial Court.