Naba Kumar Kundu & Ors. vs Rumpa Kundu

Ranjit Kumar Bag, J. - Leave is granted to learned counsel for the petitioner to amend the cause title of the revisional application for correction of name of the opposite party as "Rumpa Kundu" in stead of "Rupa Kundu".

The petitioners have preferred this revision under Section 401 read with Section 482 of the Code of Criminal Procedure praying for quashing of the proceeding of C. Case no. 173 of 2013 under Sections 406/34 of the Indian Penal Code pending before the court of learned Judicial Magistrate, 4th Court, Barasat, North 24 Parganas.

It appears from the materials on record that on June 23, 2011, the opposite party filed a written complaint before the Officer-in-Charge of Deganga Police Station, on the basis of which Deganga Police Station Case no. 348 dated June 23, 2011 under Sections 498A/406 of the Indian Penal Code came into existence. The police investigated the said criminal case and submitted charge-sheet against the petitioner nos. 1, 2, 3, 5 and 6 for the offence under Sections 498A/406/34 of the Indian Penal Code on July 31, 2011. I am informed that the charge has not yet been framed against the petitioner nos. 1, 2, 3, 5 and 6 by learned Magistrate of the trial court.

It also appears from record that on January 31, 2013, the opposite party filed a petition of complaint before the court of learned Chief Judicial Magistrate, Barasat, North 24 Parganas against the petitioners and one Rupa Mondal. Learned Magistrate took cognizance of the offence and issued process against the petitioners and one Rupa Mondal for the offence under Sections 406/34 of the Indian Penal Code.

With the above factual matrix, Mr. Sanjay Banerjee, learned counsel for the petitioners contends that the opposite party has already initiated criminal proceeding against the petitioners on June 23, 2011 on the allegation that the petitioners have committed offence under Sections 498A/406 of the Indian Penal Code and the police has also submitted charge-sheet against the petitioners for the offence under Sections 498A/406/34 of the Indian Penal Code. Mr. Banerjee submits that subsequently the opposite party cannot file petition of complaint against the petitioners for the offence under Section 406 of the Indian Penal Code. According to Mr. Banerjee, the continuation of the second complaint against the petitioners for the offence under Section 406 of the Indian Penal Code is an abuse of the process of the court and as such the petition of complaint is liable to be quashed.

Mr. Banerjee relied on the decision of the Delhi High Court in "Shyam Sunder Bhartia v. NCT of Delhi" reported in 2007 (96) DRJ 78 in support of the contention that the second complaint for the same offence against the same persons is liable to be quashed.

Mr. Kaushik Gupta, learned counsel for the opposite party contends that after initiation of criminal proceeding against the petitioners by the opposite party on June 23, 2011 there was rapprochement between the petitioners and the opposite party, but the petitioners did not keep their words for amicable settlement of the dispute with the opposite party after obtaining bail in the first criminal case. According to Mr. Gupta, the second complaint filed by the opposite party against the petitioners and one Rupa Mondal disclosing offence under Sections 406/34 of the Indian Penal Code is in connection with separate incident and as such the second complaint is not liable to be quashed. The alternate submission made by Mr. Gupta is that the petition of complaint filed by the opposite party can be tried along with the previous police case as if both the cases were instituted on police report as per provision of Section 210(2) of the Code of Criminal Procedure. Mr. Gupta also submits that the decision of Delhi High Court cited on behalf of the petitioners cannot have any bearing in the facts of the present case, because Delhi decision has not dealt with the provision of Section 210(2) of the Code of Criminal Procedure which can be applied in the facts of the present case.

On perusal of the written complaint treated as FIR no.348 dated June 23, 2011 of Deganga Police Station and the petition of complaint filed by the opposite party before the court of learned Chief Judicial Magistrate on January 31, 2013, I find that the opposite party prayed for return of the dowry articles in the first written complaint treated as FIR and she has also prayed for recovery of dowry articles in the petition of complaint filed on January 31, 2013. The opposite party has given several dates in the petition of complaint on which the petitioners refused to hand over the dowry articles and ultimately misappropriated them. The police also submitted charge-sheet against the petitioner nos. 1, 2, 3, 5 and 6 on the allegation of misappropriation of dowry articles by filing charge-sheet against them not only under Section 498A of the Indian Penal Code, but also under Sections 406/34 of the Indian Penal Code. Accordingly, I am of the view that the second complaint filed by the opposite party on January 31, 2013 relates to the offence arising out of the same transaction for which the opposite party filed Deganga Police Station Case no. 348 dated June 23, 2011.

Now, the question for consideration of the Court is whether continuation of the petition of complaint against the present petitioners will be an abuse of the process of the court and the same is liable to be quashed by invoking my inherent power under Section 482 of the Code of Criminal Procedure. In "Shyam Sunder Bhartia v. NCT of Delhi" (supra) the FIR was registered under Sections 11 and 30 of the Bureau of Indian Standard Act, 1986 in July 2000. The complaint case on the selfsame incident started by Bureau of Indian Standard was quashed by learned single Judge of Delhi High Court. On perusal of the said Report, I do not find that learned single Judge of Delhi High Court dealt with the provision of Section 210(2) of the Code of Criminal Procedure. Since the legislature has provided the procedure under Section 210 of the Code of Criminal Procedure to deal with the complaint case when the police case on the selfsame cause of action is initiated, the court is duty bound to follow the said procedure for giving justice to the parties. Since learned single Judge of Delhi High Court did not consider the application of Section 210 of the Code of Criminal Procedure even when petition of complaint was filed along with police case for the same cause of action, I am not inclined to follow the decision of learned single Judge of Delhi High Court.

Section 210 of the Code of Criminal Procedure reads as follows:

"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."

It appears from Sub-Section (2) of Section 210 of the Code of Criminal Procedure that if police report is submitted on completion of investigation under Section 173 of the Code of Criminal Procedure and learned Magistrate has taken cognizance of the offence against any person who is an accused in a complaint case in respect of the same offence, the complaint case will be tried along with the police case as if both the cases were instituted on police report. Two different situations are dealt with in Sub-Section (1) of Section 210 and in sub Section (2) of Section 210 of the Code of Criminal Procedure. The first situation relates to complaint case and the police case which is under investigation and the second situation relates to complaint case and the police case which ended in submission of final report under Section 173 of the Code of Criminal Procedure and subsequent taking of cognizance of the offence by learned Magistrate. The present case squarely falls within the ambit of Sub-Section (2) of Section 210 of the Code of Criminal Procedure. In the present case, police report is submitted in final form under Section 173 of the Code of Criminal Procedure and learned Magistrate has taken cognizance of the offence for which the petitioner nos. 1, 2, 3, 5 and 6 are accused in the complaint case. In view of my above findings, I have no hesitation to hold that the complaint case will be tried along with the police case as if both the cases were instituted on police report as laid down in Section 210 (2) of the Code of Criminal Procedure.

On perusal of the petition of complaint filed by the opposite party on January 31, 2013, I find that the opposite party has not made any specific allegation against the petitioner no. 4. Accordingly, the petitioner no.4 cannot be compelled to face the criminal trial on the basis of omnibus allegation made against her by the opposite party. In my view, the criminal proceeding against the petitioner no. 4 is liable to be quashed, because continuation of the criminal proceeding against the petitioner no. 4 will be an abuse of the process of the court.

As a result, the criminal proceeding being Complaint Case no. 173 of 2013 qua the petitioner no. 4 pending before the court of learned Judicial Magistrate, 4th Court, Barasat is quashed. The Complaint Case no. 173 of 2013 under Sections 406/34 of the Indian Penal Code (except petitioner no. 4, Rupa Mondal) will be tried by learned Judicial Magistrate along with Deganga Police Station Case no. 348 dated June 23, 2011 as if both the cases were instituted on police report. Learned Magistrate is directed to expedite the hearing of case in question and to dispose of the same as early as possible preferably within a period of six months from the date of communication of the order.

With the above direction, criminal revision is disposed of.

The Department is directed to send down a copy of this judgment and order to the trial court for favour of information and necessary action.