Radha Krishan Poddar & Anr vs State of West Bengal & Anr

Tirthankar Ghosh, J

The revisional application has been preferred by challenging the proceedings being Complaint Case No.C-11540 of 2004 pending before the learned Metropolitan Magistrate, 11th Court, Kolkata under Section 211 of the Indian Penal Code and all orders passed therein in connection with the said proceedings.

Mr. Kaushik Chatterjee, learned advocate, appearing for the petitioners draws the attention of this Court to the relevant part of the petition of complaint which was filed before the learned Metropolitan Magistrate, 11th Court, Kolkata for proper disposal of this case. Paragraph 6 and 12 of the said complaint are set out as follows:-

"6. That in connection with the Shakespeare Sarani Police Station Case No.27 dated 6th February, 2002 under Section 120B/420/406 of the Indian Penal Code filed by the accused one Tarachand Mundra was arrested on 14th February, 2002 and subsequently bail was granted by the Learned Magistrate and your complaint and the three others who were named in the purported complaint were granted anticipatory bail in Criminal Misc Case Nos. 45 of 2002, 46 of 2002, 47 of 2002 and 48 of 2002 by the Learned City Sessions Court, Calcutta. Copies of the said order are annexed hereto and marked with Letter "B".

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Your Complaint states that such false and frivolous criminal complaint filed by the accused person and involving the innocent complainant and also the wives of the complainant and another clearly establishes that with an intent to cause injury to your complainant and others by instituting such criminal proceeding on the false charges knowingly that there is no just or lawful ground for such proceeding as such your complainant submits that the accused persons has committed an offence under Section 211 of the Indian Penal Code and cognizance may be taken of the said offence and necessary steps and or directions be passed accordingly."

According to Mr. Chatterjee, the learned Magistrate was pleased to take cognizance of the offence and subsequently by an order dated 19.11.2004 was pleased to issue process against the petitioners for commission of offence punishable under Section 211 of the Indian Penal Code by grossly violating the provisions of Section 195(1)(b)(I). In support of his contention he relied upon a judgment rendered in the case of in Kamlapati Trivedi Vs. State of West Bengal reported in 1980 SCC (Cri) 347.

It is a settled position of law that Section 211 of the Indian Penal Code falls under the Chapter XI which relate to "of false evidence and offences against public justice". Chapter XIV of the Code of Criminal Procedure lays down the condition requisite for initiation of proceedings. Section 195 of the Criminal Procedure Code provides that :-

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - (1) No Court shall take cognizance -

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(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, ......

except on the complaint in writing of that Court [or by such officer of the Court as that Court may authorise in writing in this behalf], or of some other Court to which that Court is subordinate."

In view of the ratio decided by the Hon'ble Apex Court in the judgement relied upon by the learned Advocate for the petitioners which has categorically held as follows:-

"60. As the order releasing Trivedi on bail and the one ultimately discharging him of the offence complained of amount to proceedings before a Court, all that remains to be seen is whether the offence under Section 211 of the Indian Penal Code which is the subject-matter of the complaint against Trivedi can be said to have been committed "in relation to" those proceedings. Both the orders resulted directly from the information lodged by Trivedi with the police against Pathak and in this situation there is no getting out of the conclusion that the said offence must be regarded as one committed in relation to those proceedings. This requirement of clause (b) aforementioned is also therefore fully satisfied.

For the reasons stated, I hold that the complaint against Trivedi is in respect of an offence alleged to have been committed in relation to a proceeding in Court and that in taking cognizance of it the SDJM acted in contravention of the bar contained in the said clause (b), as there was no complaint in writing either of the SDJM or of a superior Court. In the result, therefore, I accept the appeal and, setting aside the order of the High Court, quash the proceedings taken by the SDJM against Trivedi."

I hold that there was no scope for the learned Magistrate to take cognizance on the complaint filed by the complainant/opposite party No.2 and the learned Magistrate was duty bond to follow the provisions of law as has been enumerated in the Code of Criminal Procedure.

Learned Advocate for the State leaves it to the Court to decide the issue.

In view of the statutory bar created under the Code of Criminal Procedure it was incumbent upon the learned Magistrate to resort to the proper provisions of law prior to taking cognizance of the offence and issuance of process. In view of the same not being followed, the further continuance of Complaint Case No.C-11540 of 2004 under Section 211 of the Indian Penal Code before the learned Metropolitan Magistrate, 11th Court, Kolkata is an abuse of the process of Court and as such the same is bound to cause miscarriage of justice. Accordingly, Complaint Case No.C-11540 of 2004 is quashed.

Hence, CRR 4210 of 2006 is allowed.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.