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Pranati Das @ Puja Shil v/s The State of West Bengal


Company & Directors' Information:- PUJA CORPORATION LIMITED [Active] CIN = L51909WB1981PLC033699

Company & Directors' Information:- G DAS & CO PVT LTD [Active] CIN = U74992WB1935PTC008299

Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- K C DAS PVT LTD [Active] CIN = U15433WB1946PTC013592

Company & Directors' Information:- D K DAS & CO PVT LTD [Active] CIN = U51909WB1938PTC009288

Company & Directors' Information:- U C DAS & CO PVT LTD [Active] CIN = U31200WB1987PTC042709

Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- DAS-G INDIA PRIVATE LIMITED [Active] CIN = U24304DL2020PTC370609

Company & Directors' Information:- P K DAS & CO PVT LTD [Strike Off] CIN = U74210WB1955PTC022259

    C.R.R. 730 of 2019

    Decided On, 21 January 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MRS. JUSTICE MADHUMATI MITRA

    For the Petitioner: Angshuman Chakroborty, Advocate. For the Respondents: Sayanti Santra, Advocate.



Judgment Text


Petitioner has approached before this Court by filing an application under Section 401 read with Section 482 of the Code of Criminal Procedure and Challenged the impugned order dated February 11, 2019 passed by the Learned Chief Judicial Magistrate, Barasat, North 24 Parganas, in connection with C Case No.1897 of 2018.

By the impugned order the Learned Magistrate rejected the prayer of the petitioner under Section 156(3) of the Code of Criminal Procedure to send the petition of complaint to the officer in charge of police station for treating the same as First Information Report The copy of the impugned order passed by the Learned Magistrate has been annexed to the present revisional application. From the impugned order it appears that the Learned Magistrate considered the report submitted by the officer-in-charge of Habra Police Station in compliance with the direction of the Learned Magistrate dated October 12, 2018. From the order impugned it appears that the Learned Magistrate did not find any reason to allow the prayer of the present petitioner under Section 156(3) of the Code of Criminal Procedure. While rejecting the prayer of the present petitioner under Section 156(3) of the Code of Criminal Procedure the Learned Magistrate did not pass any order regarding taking cognizance of the alleged offences and did not proceed under Section 200 of the Code of Criminal Procedure.

The question to be considered and answered in this revisional application is whether the Learned Magistrate was justified in passing the impugned order.

Before I proceed to further to examine the facts, I may consider the ambit and the scope of provisions of section 156(3) of the Code of Criminal Procedure and the consequence when the prayer under Section 156(3) of the Code of Criminal Procedure is rejected by the Magistrate.

During the course of hearing Learned Counsel appearing for the petitioner has strongly contended that while rejecting the prayer of the petitioner under Section 156(3) of the Code of Criminal Procedure the Magistrate ought to have taken cognizance of the alleged offences under Section 190(1)(a) of the Code of Criminal Procedure, but in the instant case the Learned Magistrate failed to take cognizance of the alleged offences and rejected the entire petition of complaint without making any observation as to whether the complainant made out any prima facie case for proceeding against the accused persons.

Section 156(3) of the Code of Criminal Procedure empowers the Magistrate to direct the officer-in-charge of a police station to investigate in respect of a cognizable offence on the basis of a petition of complaint filed before him.

In the present case on 12.10.2018 the petitioner filed a petition of complaint against one Ranjan Das & Others for commission of alleged offences punishable under Section 313/376/341/506/120B/34 of the Indian Penal Code. According to the said petition of complaint the petitioner after her marriage started to reside separately with her husband in a rented premise which was adjacent to her matrimonial home. The husband of the petitioner is a mason by profession. He used to leave his residence early in the morning and to come back home at night. It was alleged that in the month of June 2018 the petitioner became pregnant. Her husband had to go outside West Bengal for his work leaving the petitioner at her matrimonial home under the care of her in-laws. It was the specific allegation of the petitioner, taking the advantage of absence of her husband, Ranjan Das, the husband of her sister-in-law used to enter in her room without any reason and the petitioner protested and asked him not to enter into her room. Then she was abused by said Ranjan Das. The petitioner narrated the incident to her in-laws but they became furious and slapped the petitioner. Said Ranjan Das threatened to murder the petitioner. The petitioner also alleged that on September 28, 2018 at about 10.30 p.m. the petitioner was forcibly raped by said Ranjan Das. Again on September 29, 2018 she was physically tortured by said Ranjan Das. On 29 September, 2018 the petitioner became ill and she was taken to Habra State General Hospital. After Ultra- sonography it was revealed that baby of the petitioner died in her womb and petitioner was forced to undergo abortion by her mother-in-law, sister-in-law and the husband of her sister-in-law without the consent of her husband. Petitioner was threatened not to disclose the alleged incident to the police authority otherwise she would be murdered. Petitioner claimed that she had filed a written complaint before the Police authority and also reported the incident to the Superintendent of Police, North 24 Parganas and SDPO, Barasat, through speed post. No action was taken by them. As such she was compelled to file an application before the Learned Magistrate under Section 156(3) of the Code of Criminal Procedure for treating the same as an FIR and to direct the officer-in- charge of Habra Police Station to cause an investigation into the allegations contained in her petition of complaint. The petition of complaint was supported by an affidavit.

The petition of complaint was filed before the Learned Chief Judicial Magistrate, North 24 Parganas on October12, 2018. From the order dated October 12, 2018 in C Case No.1897 of 2018 passed by the Learned Chief Judicial Magistrate, North 24 Parganas it transpires that Learned Magistrate observed that averments made in the petition of complaint did not gather confidence of the Court and Learned Magistrate thought it was proper to verify the allegations contained in the petition of complaint through officer-in-charge of Habra Police Station. As such he directed the officer-in-charge of Habra Police Station to submit a report regarding the veracity of the allegations made in the petition of complaint. From the impugned order dated February 11, 2019 it appears that the officer-in-charge, Habra police station submitted his report regarding the veracity of the allegations contained in the petition of complaint as per the direction of the Court. The copy of the said report has been annexed to the present petition. In the concluding portion of the said report SI Kajal Banerjee, Habra Police Station mentioned that the petitioner was physically and mentally tortured by her husband and in-laws on several times but there was no evidence of rape and termination of pregnancy of the petitioner by force except her own statement. Accordingly the Learned Magistrate rejected the prayer of the petitioner to treat the petition of complaint as an FIR under Section 156(3) of the Code of Criminal Procedure. At the same time the Learned Magistrate disposed of the complaint case.

The impugned order has been assailed by the Learned Counsel appearing for the petitioner on the ground that the Learned Magistrate while disposing of the petition of complaint overlooked the relevant provisions of the Code of Criminal Procedure. It has been forcefully contended by Learned Advocate for the petitioner that the Learned Magistrate failed to take cognizance of the offences and examine the complainant and her witnesses under Section 200 of the Code of Criminal Procedure to ascertain as to whether there was any prima facie case for proceeding against accused persons.

Learned Magistrate in his order dated 12th October, 2018 cited the decision of our Apex Court in Priyanka Srivastava & Anr. Vs. State of U.P. & Ors. in Criminal Appeal No.781 of 2012 and directed the officer-in-charge of Habra Police Station to verify the veracity of the allegations contained in the petition of complaint. Learned Magistrate rejected of the said petition of complaint on the basis of the report submitted by the officer-in-charge Habra police station without taking cognizance of the alleged offences and giving opportunity to the complainant to examine herself and her witnesses in support of the allegations contained in the petition of complaint.

Now the question comes, whether the impugned order of rejection of the entire petition of complaint under Section 156(3) of the Code of Criminal Procedure filed by the present petitioner is sustainable in law.

Section 156(3) of the Code of Criminal Procedure empowers the Magistrate before taking cognizance of offence under Section 190(1)(a) of the Code of Criminal Procedure to send the petition of complaint to the police to register the same as an FIR and to investigate into the allegation contained in the said petition complaint. In the present case the Learned Magistrate without sending the petition of complaint to the officer-in-charge of the police station for treating the same as an FIR directed officer-in-charge to verify the veracity of the allegations contained in the said petition of complaint. At the time of sending the same to the officer-in-charge of the Police Station concerned the Learned Magistrate placed his reliance on the decision of Priyanka Srivastava & Anr. Vs. State of U.P. & Ors. (supra) Our Apex Court has also observed in the decision cited by Learned Magistrate that in an appropriate case, the Magistrate would be well advised to verify the truth and also verify the veracity of the allegations contained in the petition of complaint. In the case at hand, the alleged incident occurred on September 28, 2018 at 10.30 p.m. and subsequently on 29th September, 2018. The petition of complaint was filed before the Court on 12.10.2018. The reason for delay in filing the petition of complaint was explained by the complainant. Annexure P-1 at pages 13 to 17 are the copies of the documents issued by Habra State General Hospital. Where from it appears that the petitioner had under gone 'in-complete abortion' on 29th September, 2018 and was discharged on 1st October, 2018. No document was filed by the petitioner before the Magistrate wherefrom it could be presumed the petitioner complied with the provisions of Section 154(1) and 154(3) of the Code of Criminal Procedure before filing present application under Section 156(3) of the Code of Criminal Procedure. From the report submitted by the officer-in-charge of the Police Station as per the direction of the Learned Magistrate it appears that the petitioner was subjected to physical and mental torture by her in-laws. But the report submitted by SI Habra Police Station mentioned that there was no evidence of rape and forceful termination of pregnancy of the petitioner except her own statement. Petitioner claimed that she was forcibly raped when she was pregnant by the husband of her sister-in-law. The petition of complaint discloses commission of cognizable offence but no document was produced by the complainant in support of compliance with the provisions contained in Section 154(1) and 154(3) of the Code of Criminal Procedure. The Magistrate had sent the petition of complaint to the police station concerned to verify the veracity of the allegation at pre-cognizance stage and the report submitted in connection with that direction disclosed that the petitioner was subjected to physical and mental torture and petitioner herself disclosed about the termination of her pregnancy.

Non-production of the documents by the complainant in support of the compliance with the provisions in Section 154(1) and 154(3) of the Code of Criminal Procedure may be a ground for the Magistrate to refuse the prayer of the complainant to treat the petition of complaint as an FIR. While refusing prayer of the complainant to treat the petition of complaint as an FIR, the Magistrate can take cognizance of the allegations under Section 190(1) (a) of the Code of Criminal Procedure. In the instant case the Learned Magistrate has failed to do so. The Learned Magistrate has committed an error without taking cognizance of the alleged offences under Section 190(1) (a) of the Code of Criminal Procedure at the time of rejecting the prayer of the petitioner under Section 156(3) of the Code of Criminal Procedure. The appropriate course of action of a Magistrate while rejecting a prayer under Section 156(3) of the Code of Criminal Procedure, to take cognizance of the alleged offences under Section 190(1) (a) of the Code of Criminal Procedure and to proceed further in accordance with the provisions of section 200 of the Code of Criminal Procedure and to examine the complainant and her witnesses to determine as to whether process should or should not be issued. Ag

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ain under Section 202(1) of the Code of Criminal Procedure the Magistrate, instead of issuing process, may direct an investigation to be made by a police officer. An investigation under Section 202(1) of the Code of Criminal Procedure may help the Magistrate to ascertain whether or not there is substantial ground to proceed further. In the present case the Learned Magistrate has committed an error by rejecting the entire petition of complaint. Learned Magistrate at the time of passing the impugned order has failed to follow the relevant provisions of the Code of Criminal Procedure. Impugned order is not sustainable in law and the same is liable to be set aside. Learned Magistrate is directed to consider the prayer of the petitioner under Section 156(3) of the Code of Criminal Procedure afresh in the light of the above mentioned provisions of the Code of Criminal Procedure observations made in the judgment and the principles laid down in the decision of Priyanka Srivastava & Anr. Vs. State of U.P. & Ors. in Criminal Appeal No.781 of 2012. As a result the Revisional Application being No.730 of 2019 is allowed and the impugned order passed by the Learned Magistrate is hereby set aside. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
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