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2022 DIGILAW 1111 (CAL)

Liza Ghosh v. State Of West Bengal

2022-07-29

RAI CHATTOPADHYAY

body2022
JUDGMENT Rai Chattopadhyay, J. - Petitioners Liza Ghosh and Souvik Dutta have preferred to file the present Criminal Revision Case under Sections 401 and 482 of the Code of Criminal Procedure 1973 to challenge and with the prayer to set aside the impugned order dated 23.09.2021 of the Additional Chief Judicial Magistrate, Chandannagore in C.R Case No.403 of 2021. 2. By dint of the impugned order dated 23.09.2021 the trial court has allowed prayer of the opposite party No.2 to take cognizance of his compliant dated 23.09.2021 and to pass directions invoking its power under Section 156 (3) of Cr.p.c 1973. The trial court has allowed such prayer and directions were issued by dint of the impugned order dated 23.09.2021, upon the concerned police station, to register the specific police case on the basis of the compliant dated September 23, 2021, by the present opposite party No.2. 3. In compliance with the said order, Chandannagore Police Station Case No.243 of 2021 dated 12.10.2021 was registered under Sections 323, 325, 341, 354, 506 and 34 of the Indian Panel Code against the present petitioners. Record reveals that the connected GR case number is G.R.No. 1513 of 2021. 4. The present opposite party No.2 made allegations in the trial court inter alia as follows:- Petitioner No.1 is the elder daughter of the sister of the complainant/opposite party No.2 who has been allegedly of very obstinate and unruly nature from her childhood and both the petitioners together being husband and wife had allegedly committed physical and mental torture upon the mother of petitioner No.1 as well as her sister and the opposite party No.2 and his wife. Incidents of 22.08.2021 and 05.09.2021 have been narrated by the complainant in his said complaint that the petitioners have forcefully entered the house of her mother, i.e, the sister of opposite party No.2, hurled abusive languages and forcefully drove out the complainant and his wife from the house after causing physical assault. Allegations of outraging modesty of wife of the complainant by both the petitioners have also being narrated down in the complaint. 5. Upon the compliant, as above, of the opposite party No.2, being filed on 23.09.2021, the trial court has passed an order on the same day which is as follows:- 'Order dated 23.09.2021 Petitioner Goutam Neogi filed an application u/s 156 (3) Cr.P.C against the accused Liza Ghosh & Anr. 5. Upon the compliant, as above, of the opposite party No.2, being filed on 23.09.2021, the trial court has passed an order on the same day which is as follows:- 'Order dated 23.09.2021 Petitioner Goutam Neogi filed an application u/s 156 (3) Cr.P.C against the accused Liza Ghosh & Anr. W*ith a prayer to send the same as F.I.R along with an affidavit stating that no case has been initiated upon the same allegations before any P.S. Perused the petition and photo copies of documents. It appears that a cognizable case is made out. Thus the petition u/s 156 (3) Cr.P.C is allowed. The I.C Chandannagar P.S. is directed to investigate the case as per law treating the petition as F.I.R and to report compliance. Let the complaint along with copy of order be sent to the I.C Chandannagar P.S. concerned' 6. The petitioners are aggrieved of the order dated 23.09.2021 of the trial court as enumerated above and also of the initiation of the criminal proceedings on the basis of the said compliant lodged by the opposite party No.2. 7. Learned advocate on behalf of the petitioners has assailed the impugned order and impugned criminal proceedings on the ground, firstly, that the compliant is based only on frivolous and baseless allegations which are not substantiated by any cogent material on record. It is submitted that the entire proceeding is initiated on the basis of ill-will and malice and such malicious proceeding should not be allowed to continue. 8. Secondly, that the learned trial court, while taking cognizance of the compliant of the opposite party No.2 has erred in law by not observing the mandates of law while taking cognizance of a compliant like this under Section 156 (3) Cr.P.C 1973. On this point on behalf of the petitioners, following two reported judgments of the Hon'ble Apex Court have been relied on, i.e, (I) (2015) 6 SCC 287 (Priyanka Srivastava & Anr. Vs. State of Uttar Pradesh & Ors.) (II) (2022) 5 SCC 639 (Babu Venkatesh & Anr. Vs. State of Karnatak & Anr.) 9. It is submitted that in Priyanka Srivastava's case the Hon'ble Apex Court has been pleased to hold that primary duty of the Magistrate is to verify the truth and veracity of the allegations. Vs. State of Uttar Pradesh & Ors.) (II) (2022) 5 SCC 639 (Babu Venkatesh & Anr. Vs. State of Karnatak & Anr.) 9. It is submitted that in Priyanka Srivastava's case the Hon'ble Apex Court has been pleased to hold that primary duty of the Magistrate is to verify the truth and veracity of the allegations. It has further being held that there has to be prior applications under Sections 154 (1) and 154 (3) both of Code of Criminal Procedure 1973, before the Magistrate, while a petition is filed under Section 156 (3) Cr.p.c. That, both the aspects, necessitated in the above stated provisions of law, should be clearly spelt out in the application before the Magistrate, to be examined by him and necessary documents to that effect should also be filed. According to the petitioners, order of the trial court is devoid of any findings as to all these requisites. 10. Opposite party No.2 has categorically denied the allegation of any fabricated and malicious proceedings to have been brought against the petitioners. Instead, he has reiterated his allegations made in the compliant before the trial court. Also in the said affidavit the opposite party No.2 has denied and disposed the contention of the petitioners that the due process under law has not been exhausted by him before filing the complaint before the trial court, in order to seek the trial court to invoke jurisdiction under Section 156 (3) Cr.p.c. 11. It is submitted, as in the compliant, that Inspector-in-charge Chandannagar Police Station and Commissioner of Police, Chandannagar Commissionarate, both have been intimated about the gist of the complaint and without getting any remedy the opposite party No.2/complainant sought refuge in the court of law. Though such statements of him are however devoid of any specific important informations like date of such letters etc. 12. State has produced the C.D in the court during the hearing which is perused meticulously. It appears that the same is devoid of any sufficient material in support of the complainant/opposite party No.2's contentions and allegations regarding forceful entry by the petitioners in the house or sufferance of hurt at their instance etc. The medical report in C.D suggest about sufferance of trauma, weakness etc. It appears that the same is devoid of any sufficient material in support of the complainant/opposite party No.2's contentions and allegations regarding forceful entry by the petitioners in the house or sufferance of hurt at their instance etc. The medical report in C.D suggest about sufferance of trauma, weakness etc. Witness's statements recorded under Section 163 Cr.p.c are available in the C.D. Though it appears that no witness have been examined under Section 164 Cr.p.c. Excepting the above there are no other materials available in C.D, which in my considered opinion might have justified the necessity of the investigation to be proceeded with further. 13. The certified copy of the complaint lodged by opposite party No.2 being C.R No.403 of 2021 is annexed with the revision application. The date of incident has been mentioned there at the first page as 22.05.2021 to be continued till 30.05.2021'. However in the same complaint at 2nd page, the date of incident has been narrated to be 22.08.2021 and 05.09.2021'. In the compliant the complainant is silent about the date when he has sent the registered letters to I.C Chandannagar or Commissioner of Police Chandannagar, ventilating his grievance. Thus, the said complaint appears to be absolutely vague and non-specific in nature which provides impetus to the submissions made on behalf of the petitioner that the present case is only a malicious prosecution against the petitioners. So far as the specific allegation of assault by the petitioners, one can find no mention thereof in the C.D. As a matter of fact it may be worthwhile to mention that the parties have been involved in filing cases against the each other in connection with certain family discord and the materials strongly suggest lack of any cogent and sufficient of those which might have substantiated the allegations of opposite party No.2 as made in his complaint. On perusal of the materials presented before this court. I am constrained to hold that there appears to exist scanty reasons for the opposite party No.2 who have lodged such a complaint in the trial court much less of any cogent or sufficient of those. Needless to reiterate that the complainant/opposite party No.2 himself was inaccurate in mentioning the date of incident differently in different places in her complaint dated 04.09.2021. Therefore the very foundation of the allegations made against the petitioners is wobbled. Needless to reiterate that the complainant/opposite party No.2 himself was inaccurate in mentioning the date of incident differently in different places in her complaint dated 04.09.2021. Therefore the very foundation of the allegations made against the petitioners is wobbled. Under such circumstances I have no hesitation to concur with the submission made before me that the present criminal proceedings against the accused persons is only an outcome of useless vengeance and malice, having no substantive ground on which it could have been successfully founded. 14. The other point raised is of procedural irregularity and noncompliance with the existing law regarding the trial court taking cognizance of the complainants petition dated 23.09.2021 and passing an order in terms of Section 156 (3) Cr.p.c that is the trial court's order dated 23.09.2021, as discussed above. 15. Section 156 (3) is the enabling provision for the Magistrate to take cognizance of the compliant and issue directions for investigation thereof. 16. To emphasize his point learned Advocate on behalf of the petitioner has relied on the decision of Priyanka Srivastava as mentioned above. It has already been discussed that, in the said case Hon'ble Apex Court has been pleased to hold that the Magistrate shall be empowered under the said provision of law to verify the veracity of the allegations, regard being had to the nature of the allegations of the case. The Hon'ble court has been pleased to hold further that before the Magistrate could take cognizance of certain allegations of any person he has to satisfy self about due compliance of provision under Section 154 (1) and 154 (3) Cr.pc as the bounden pre-conditions thereof. It has been held that power under Section 156(3) Cr.p.c warrant application of judicial mind. The court of law is involved therein. The litigant at his own whim cannot invoke the authority of the Magistrate excepting who is really aggrieved and coming to court in clean hands. When litigant takes this route to harass their fellow citizens, the Hon'ble court is pleased to find, that efforts are be made to scuttle and curb the same. 17. Another judgment of (2022) 5 SCC 639 that is Babu Venkatesh & Ors. Vs State of Karnataka & Anr. pronounced by the Hon'ble Supreme Court has also been relied on by the petitioners. 17. Another judgment of (2022) 5 SCC 639 that is Babu Venkatesh & Ors. Vs State of Karnataka & Anr. pronounced by the Hon'ble Supreme Court has also been relied on by the petitioners. In the same the Hon'ble Supreme Court in dealing with a similar issue has relied on the ratio in Priyanka Srivastava case and has been pleased to decide accordingly. 18. In this case it is found from the compliant dated 23.09.2021 that the opposite party No.2 have stated to have written letters of complaint to the I.C Chandannagar Police Station and the Commissioner of Police Chandannagar Commissionarate. As discussed earlier such statements by the opposite party No.2/complainant is devoid of any specific and accurate information as regards the date etc. raising the element of vagueness in it. Even if, for the sake of argument, if one accepts the allegations of inaction on part of the police authorities there is no specific material regarding how the opposite party No.2 has suffered 'refusal' to file her complaint before the police, as the same would have been the specific pre-condition for her to send her complaint in writing by post to the Superintendent of Police. In this case such explanation offered by the opposite party No.2 was even in probable and vexatious, considering the discrepancy in the dates of complaint and his silence regarding sending letter to police as discussed above. Unfortunately the order dated September 23, 2021 of the trial court reflects only the erroneous approach of the Magistrate in considering the complaint dated September 23, 2021 wherein the aspects as discussed above have not even been touched, not to speak about consideration thereof. It is trait law that the direction under Section 156(3) is to be issued only after application of mind by the Magistrate. Where on account of credibility of information available or weighing the interest of justice, it is considered appropriate to straight away direct investigation, only in such a situation the Magistrate shall issue a direction like that. It is trait law that the direction under Section 156(3) is to be issued only after application of mind by the Magistrate. Where on account of credibility of information available or weighing the interest of justice, it is considered appropriate to straight away direct investigation, only in such a situation the Magistrate shall issue a direction like that. His satisfaction to the fact that sending matter for investigation would be conductive to justice, is the necessary prerequisite for passing an order by him under Section 156 (3) Cr.p.c. It is the court's duty under the statute to take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out, which I am constrained to hold in this case that the Magistrate has failed to perform. The complainant/opposite party No.2 is absolutely non-specific and vague regarding the manner in which he has tried to set the criminal justice system in motion at the first instance. This should have precluded the trial court to take cognizance of the complaint dated 23.09.2021 of the opposite party No.2 following the principle laid down in Priyanka Srivastava's judgment. At this juncture if we look at the order dated 23.09.2021 of the trial court, it can be found that the court has noted down regarding a cognizable case to have been made out without however specifying ingredients thereof which he might have gathered from the complaint. The glaring discrepancy regarding dates, as discussed above has also remained beyond cognitive assessment of the Magistrate, while considering the matter. I am constrain to hold that the order as above of the Magistrate is a depiction of less application of mind if not, not at all, as to the real purport of the case desired to be brought out before it. Therefore the said order of the Magistrate dated 23.09.2021 directing to register an FIR for the offences mention therein suffers from serious lack of application of mind as well as appropriate reasoning. 19. We may be benefited to refer another judgment of the Hon'ble Apex Court reported in (2013) 10 SCC 705 , (Anil Kumar vs. M.K Aiyappa & Anr.), wherein the Hon'ble court has been pleased to hold that application of mind by the Magistrate should be reflected in the order. 19. We may be benefited to refer another judgment of the Hon'ble Apex Court reported in (2013) 10 SCC 705 , (Anil Kumar vs. M.K Aiyappa & Anr.), wherein the Hon'ble court has been pleased to hold that application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the compliant, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and herein the complainant, what weighed with the Magistrate to order investigation under Section 156 (3) Cr.p.c should be reflected in the order, though detail expression of his views may not be required. This being the law as settled, I am constrained to hold that the court's coming to the findings regarding existence of cognizable case is based on merely insufficient material and reasons. 20. Therefore, in this case in my opinion there was nothing before the Magistrate to find regarding credibility of information available or if for the interest of justice an investigation in the matter was required. It was not warranted for the Magistrate to straight away embark upon exercising discretionary power under Section 156 (3) Cr.p.c for making directions to lodge specific police case and start investigation. In the light of the judgment of the Hon'ble Apex Court in Priyanka Srivastava's case the order dated 23.09.2021 of the trial court must be construed to be a non-speaking one not having been substantiated with application of judicial mind and proper reasons. 21. Therefore on the discussion as above, I find that the present revisional application is legible to be allowed. The order of the trial court dated 23.09.2021 is liable to be set aside and the proceeding with respect to G.R Case No. 1313 of 2021 pending in the court of Additional Chief Judicial Magistrate Chandannagar is liable to be quashed. 22. Hence it is ordered that the present revisional application is allowed. Order of the trial court dated 23.09.2021 is set aside. The proceeding with respect to G.R Case No. 1313 of 2021 pending in the court of Additional Chief Judicial Magistrate Chandannagar is vitiated and quashed. 23. With these directions, this revisional application is disposed of. 24. However, there shall be no order as to costs. 25. Order of the trial court dated 23.09.2021 is set aside. The proceeding with respect to G.R Case No. 1313 of 2021 pending in the court of Additional Chief Judicial Magistrate Chandannagar is vitiated and quashed. 23. With these directions, this revisional application is disposed of. 24. However, there shall be no order as to costs. 25. Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.