Puneet vs State of West Bengal and Others

Sudip Ahluwalia, J.—This Revisional application has been preferred by the accused No. 2 in Complaint Case No. 7082 of 2013 pending and in the Court of the Ld. Judicial Magistrate, 2 Court at Alipore under Sections 323 /341 /34 of the IPC. He prays for setting aside the order passed by the Ld. Court below on 11.09.2013 by virtue of which cognizance was taken of the aforesaid offences. In addition, the petitioner has drawn attention to various other irregularities allegedly committed by the concerned Magistrate(s) in taking cognizance and passing orders for issuance of summons, including the matter of service of such summons by means not authorised in terms of the Cr. PC, and has therefore also prayed for laying down guidelines with regard to the exercise of the Magisterial power, apart from calling for a report from the Ld. Sessions Judge at Alipore regarding the number of Summons issued by adopting the "unauthorised" procedure of sending the same by Post/Registered Post upon individual accused persons, which is not prescribed under the Code of Criminal Procedure.

It may be mentioned that the complaint, in which cognizance was originally taken by the Ld. Chief Judicial nd Magistrate, was subsequently transferred to the 2 Court of the Ld. Judicial Magistrate at Alipore. The Ld. Transferee Magistrate, after examining the complainant under Section 200 of the Cr. PC however directed issuance of process only against the first two persons including the present petitioner, out of the four accused persons arraigned in the complaint.

The petitioner is specially aggrieved that cognizance was taken by the Ld. Chief Judicial Magistrate after the complaint was filed on 11.09.2013, even though it was mentioned in Para 4 of the complaint, "that the matters was informed to the legal P.S vide Bhowanipur P.S. GDE No. 733 dated 7.9.2013 but to no effect such this complaint" (sic). His submission in this regard is that the Complainant out of grudge and a vicious disposition towards the petitioner and his family members has been regularly filing frivolous FIRs and complaints against them. In all those FIRs, the Police ultimately submitted Final Reports to the effect that no such offences as alleged by the complainant were actually established. Even in relation to a previous complaint filed by the said complainant, a coordinate Bench of this Court in CRR No. 3784 of 2013 had taken note of the previous FIRs lodged by him, in which each time the Police had finally reported that no offences as alleged were made out, and as a consequence His Lordship Hon''ble Justice Joymalya Bagchi was pleased to quash the summoning order in the earlier complaint Case No. 7451 of 2013, and directed that the Ld. Magistrate should first obtain an independent inquiry report from the Police to ascertain whether there was any factual substance to the allegations.

The petitioner therefore has stressed before this Court that in this backdrop the Ld. Magistrate ought to have similarly ascertained about the factual position, once it was made out in the complaint that a General Diary had been already been lodged in the Police Station regarding the self-same occurrence. He has also cited certain decisions to support his contentions.

In Lalita Kumari Vs. Govt. of U.P. and Others, it was observed -

"199. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.

Conclusion/Directions:

In view of the aforesaid discussion, we hold:

120.1. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4. .... (Inapplicable);

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6. .... (Inapplicable);

120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. .... (Inapplicable);"

In Sakiri Vasu Vs. State of U.P. and Others, , the Supreme Court held -

"15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.

It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide Central Bureau of Investigation Vs. State of Rajasthan and Another, , R.P. Kapur and Others Vs. Sardar Pratap Singh Kairon and Others, etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar v. A.C. Saldanna (supra)."

The petitioner has also cited the decision in Vijay Dhanuka Etc. Vs. Najima Mamtaj Etc., . However the emphasis in that citation is on the application of Section 202 of the Cr.PC in relation to accused persons residing beyond the Territorial jurisdiction of the Courts taking cognizance in complaint cases, which is however not the case in this particular complaint.

From his side the respondent/complainant has emphasized that there has been no illegality in the impugned order passed on the basis of the evidence led under Section 200 of the Cr.P.C, since the same was sufficient to warrant issuance of the process. Certain decisions have also been cited on behalf of the respondent in order to assert that there was no illegality by the Ld. Trial Court in issuing the summons.

In "Fiona Shrikhande v. State of Maharashtra and Another" reported in (2014)1 SCC (Cri) 715, it was held -

"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have."

In "Shirjee Singh v. Nagendra Tiwary & Ors. reported in (2010) 3 SCC (Cri) 452, it was observed -

"7. We have considered the respective submissions. By its very nomenclature, Cr.P.C. is a compendium of law relating to criminal procedure. The provisions contained therein are required to be interpreted keeping in view the well recognized rule of construction that procedural prescriptions are meant for doing substantial justice. If violation of the procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory notwithstanding the use of word ''shall''.

In "All India Institute of Medical Sciences Employees'' Union (Regd.) Through its President v. U.O.I. & Ors" reported in 1997 SCC (Cri) 303, it was laid down -

"4. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter-XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that he complaint/evidence recorded prima facie discloses offence, he is empowered to take cognisance of the offence and would issue process to the accused."

In The Asiatic Oxygen and Acetylene Company and Others Vs. The State and Others, , the relevant observations were -

"6. In the circumstances and for the reasons stated above we are unable to accept the validity of Mr. Banerjee''s submission. We have gone into the question at some length as Mr. Banerjee contended that the uniform decision of this Court was that the issue of process by anyone else than the Magistrate who took cognisance was bad. The case(s) cited by Mr. Banerjee are distinguishable. As already explained they relate to instances where after an enquiry was directed under S. 202 the Magistrate who directed enquiry did not issue process but some other Magistrates did. The same was found fault with. In our view, the transferee Magistrate cannot be said to be incompetent to issue process only because the learned Chief Presidency Magistrate who transferred them had earlier taken cognisance in the cases. We have given our reasons. The observations made in the Supreme Court decision of Rajindra Nath Mahato Vs. T. Ganguly, Dy. Superintendent and Another, and some other decisions of this Court noted above also support the view we take."

From his side, the petitioner has however asserted that the aforesaid decisions relied upon by the respondent/complainant are not applicable in the peculiar facts and circumstances of the present case. The petitioner''s contention is that when in the petition of complaint it had already been mentioned that the complainant had reported the alleged occurrence to the Police Station, but the Police did not take any action upon the same apart from registering a routine general diary, the Ld. Magistrate ought to have made endeavours to obtain a preliminary report in the matter from the Police Authorities, which is in accordance with the pronouncement of the Supreme Court in the various decisions referred above.

Now, the attention of this Court has been drawn to the peculiar facts of this case in which there is apparently a longstanding enmity between the parties. Consequently there was a history of criminal cases lodged on behalf of the complainant against the petitioner and his other family members in a very short span of time. Every time an FIR was lodged, the Police after completion of investigation invariably submitted a final report to the effect that the complaint/FIR was without substance, or that no material to support the same could be gathered. The petitioner has placed on record copies of various documents concerning those previous cases which are as follows:--

".......a) Behala P.S. Case No. 491 dated 7.10.2011 corresponding to ACGR 1424 of 2011 against Pravin Popat which ended in a final report No. 6 dated 1.2.2012;

b) Behala P.S. Case No. 90 dated 3.3.2012 which culminated in a final report No. 88 dated 7.7.2012;

c) Behala P.S. Case No. 497 dated 2.11.2012 against Pravin Popat which also ended in a final report No. 11 dated 19.3.2013."

In addition the complainant had filed another complaint case being Case No. 7451 of 2013 of the pending before the Ld. Judicial Magistrate, 4th Court at Alipore under Sections 323 /341 /504 /34 of the IPC, in which similarly processes against the present petitioner and his family members were issued by the Trial Court. The petitioner and his family members thereafter challenged those proceedings in CRR No. 3784 of 2013 which was ultimately disposed off by Brother Joymalya Bagchi J., vide his Judgment passed on 14.08.2014. In that Judgment His Lordship had taken note of the previous history of enmity/differences between the parties along with the reasons for the same. The relevant observations in the Judgment are set out below:

"............The learned advocate of the petitioners submits that the impugned proceeding is a product of malice and vengeance instituted at the behest of the opposite party. It is submitted that Mr. Pravin Popat, the father of the petitioner No. 1 & 2, had attempted to resolve a matrimonial dispute between opposite party and his estranged wife. Under such arrangement, a certain sum of money was handed over to the wife of the opposite party on the understanding that she would agree to divorce by mutual consent and withdraw the criminal case instituted by her against opposite party being Behala P.S. Case No. 476 of 2011 dated 26.9.2011 under Sections 498A /406 of the Indian Penal Code. However, the wife of the opposite party for reasons best known to her did not withdraw the said criminal case. As a result, the opposite party bore a grudge against Pravin Popat and his family members viz., the petitioners herein. In retaliation, opposite party has unleashed a series of criminal cases against Pravin Popat. All such cases ended in closure reports..........."

Thus taking into account this chequered history of old enmity and multiple criminal proceedings resorted to by the respondent His Lordship disposed of CRR No. 3784 of 2013 with the following observations -

"............I find that there is a long standing enmity between opposite party and Pravin Popat, who is a near relation of the petitioners. A series of criminal cases were instituted by opposite party against Pravin Popat which ended in closure reports. Hence, it is submitted that opposite party has falsely implicated the petitioners in the impugned criminal case. Enmity is a double edged sword. On one hand, it may be a ground for instituting a false prosecution while on the other it may be the justification for commission of offence. In this backdrop, I have examined the allegations in the complaint and other materials on record. I find that prima facie there are allegations of assault in the petition of complaint. Hence, I am loath to quash the impugned proceeding at this stage. I, however, note that learned Magistrate issued process on the basis of solemn affirmation of the complainant alone. No effort was made to seek verification/corroboration of his version from other witnesses including medical evidence. This issue assumes importance in view of the past history of acrimonious relationship between the opposite party and the family of the petitioners. As a result whereof a series of false cases had been instituted against Pravin Popat (father of petitioner Nos. 1 & 2) by the opposite party. Bearing in mind the aforesaid back ground, in my opinion, it is prudent to direct the learned Magistrate to conduct further investigation/enquiry under section 202 of the Code of Criminal Procedure by an independent agency into the veracity of the allegations in the petition of complaint prior to issuance of process against the petitioners. One cannot lose sight of the fact that institution of criminal proceeding against an individual is a serious matter and ought not to be launched on the self version of a complainant when there is an established antecedent of animus between the complainant and the family members of the petitioners.

Accordingly, I set aside the order issuing process against the petitioners and remand the matter to the learned Magistrate to conduct further enquiry under Section 202 of the Code of Criminal Procedure by referring the matter for investigation through a superior Police Officer who shall enquire into the allegations in the petition of complaint and file a report before the Magistrate in accordance with law. The enquiry shall be concluded within 60 days from the date of communication of this order and thereupon the learned Magistrate shall take decision as to whether there is sufficient ground to proceed against the petitioners in the instant case. I clarify that in course of such investigation/enquiry, opposite party would be at liberty to adduce his evidence before the enquiry officer and the enquiry officer shall duly receive and verify the same in accordance with law......."

The respondent/complainant being aggrieved with the aforesaid decision in CRR 3784 of 2013 challenged the same in SLP (Criminal) No. 8902 of 2014). The Supreme Court disposed off the appeal with the following observations -

"................Learned counsel on behalf of the petitioners placed reliance upon Section 210 Cr.P.C that preliminary investigation on the alleged offence against the petitioners on the private complaint filed under Section 200 Cr.PC is totally misconceived. Further, the cognizance on the private complaint could not have been taken in view of Section 190 Cr.P.C in view of the fact that the investigation of the alleged offence on the complaint filed by the respondent with the Deputy Commissioner of Police.

Learned counsel appearing on behalf of the respondent-State submits that the report pursuant to the complaint lodged by the respondent is already submitted before the learned Magistrate, the same is required to be considered by him this view of the matter, the Police only acted on the complaint lodged by the respondent and investigation was made and the report is submitted to the learned Magistrate. The learned Magistrate is required to examine the said report in which the respondent must have say in the matter by filing protest petition. They are permitted to file the protest petition. The learned Magistrate must examine the same and pass appropriate order in accordance with law.

In view of the aforesaid reasons, we set aside the order passed by the learned Magistrate on the private complaint, which order was challenged by the petitioners before the High Court which was set aside and remanded the case to the learned Magistrate for reconsideration the same is also set aside accepting the submission that Section 210 Cr.PC is a bar to entertain the private complaint allowing the private allegations during the course of investigation.

The special leave petition is disposed of accordingly with the liberty to file protest petition on the report submitted by the police on the FIR registered by it......."

It is to be noted that the Judgments of this Court in CRR No. 3784 of 2013 and of the Hon''ble Supreme Court in SLP (Criminal No. 8902 of 2014) were passed when process against the petitioner and his family members in the next complaint, which is now the subject matter of the present Revisional Application, had already been issued.

Furthermore, the petitioner has placed on record the summons served upon him by registered post, and the envelope in which the same was sent, which is Annexure ''P-3'' to the Revisional Application. The same goes to show that only the heading of summons format was sent in the registered envelope without annexing the copy of the complaint petition. This according to the petitioner was a trick intentionally practiced by the complainant to ensure that the petitioner would have no option but to appear before the Ld. Trial Court first of all, without any scope to challenge the summoning order, since he was precluded from knowing the allegations made against him by non-attachment of the copy of the complaint petition. It is for this reason that Ld. Counsel for the petitioner has emphatically asserted that the Order for issuance of process by the Ld. Court below passed on 13.09.2013 "at once by both ways" is in violation of Section 62 of the Code of Criminal Procedure, as there is no scope for issuance of service of summons by registered post upon private individuals.

The manner of service of summons upon individuals as prescribed under Section 62 is as follows -

"..62. Summons how served -(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate....."

It is therefore clear that actually Section 62 does not provide for service of summons upon any individual accused person by registered post, but only through a Police Officer personally. Hence the contention of the petitioner that had such summons being issued through the Police, the copy of the complaint would have been necessarily served upon him so as to enable him to immediately challenge the proceedings without delay.

There does appear to be some merit in the above contention raised on behalf of the petitioner in the peculiar fact and circumstances of the present case, which involves a long history of enmity between the parties and a number of previous criminal proceedings lodged against the petitioner and his family members, out of which three were dropped as the Police found no substance in the same, and the fate of the fourth one in which the Summoning Order was once set aside, still hangs in balance. In such unique background of the present case, this Court is also inclined to follow the course adopted by Brother Joymalya Bagchi in CRR No. 3784 of 2013.

Consequently, the impugned Order issuing process against the petitioner is similarly set aside, and the Ld. Magistrate is directed to conduct further enquiry under Section 202 of the Code of Criminal Procedure by referring the matter for investigation through a superior police officer who shall enquire into the allegations in the petition of complaint and file a report before the Magistrate in accordance with law. Needless to add, such enquiry shall be concluded within 60 days from the date of communication of this order. Thereafter the respondent/complainant shall be at liberty to take appropriate steps in case he is aggrieved with the enquiry report, in the same manner as specified in the Judgment of the Hon''ble Supreme Court in SLP (Criminal No. 8902) of 2014 referred to above.

This Court is however not inclined to call for any Statistical Report from the Ld. Sessions Judge at Alipore regarding the number of summons issued by adopting the procedure of sending the same by post/registered post upon individual accused persons. On the contrary a general direction can be conveyed to various criminal Courts in the Judgeship to strictly follow the provisions of Section 62 of the Cr.PC Code and to ensure that summons in the manner specifically prescribed in Sub-section(2) therein are actually served upon the accused persons before issuing any other compulsive process against them. A copy of this Judgment be therefore sent to the Ld. Sessions Judge South 24-Parganas at Alipore for circulation in the various Criminal Courts of the Judgeship. The Revisional Application is thus disposed off with these directions. The application being C.R.A.N. 1923 of 2015 therefore becomes redundant and stands rejected.