Calcutta High Court (Appellete Side)

Amit Bajoria vs The State Of West Bengal & Anr on 14 September, 2022

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                            CRR 2918 of 2022
                             Amit Bajoria
                                  -Vs-
                    The State of West Bengal & Anr.

      For the Petitioner:     Mr.   Kallol Mondal, Adv.,
                              Mr.   Krishan Ray, Adv.,
                              Mr.   Souvik Das, Adv.,
                              Mr.   Anamitra Banerjee, Adv.,
                              Mr.   Samsher Ansari

      For the Opposite party No.2:-
                              Mr. Sandipan Ganguly, Sr. Adv.,
                              Mr. Debasish Ray, Adv.,
                              Mr. L. Vishal Kumar, Adv.,
                              Mrs. Manaswita Mukherjee, Adv.


Heard on: 14 September, 2022.
Judgment on: 14 September, 2022.

BIBEK CHAUDHURI, J. : -

1.

The petitioner has approached this Court under Section 482 of the

Code of Criminal Procedure praying for quashing of the proceeding

pertaining to C.G.R Case No.1495 of 2022 corresponding to Ballygunge

Police Station Case No.43 dated 25th May, 2022 under Sections

498A/406/34 of the IPC read with Section 3/4 of the Dowry Prohibition

Act presently pending before the learned Chief Judicial Magistrate, South

24 Parganas at Alipore.

2. The petitioner is the husband of opposite party No.2. Their marriage

was solemnized according to Hindu Rites and Customs on 3rd February,

2006. In the wedlock between the petitioner and the opposite party No.2,

she gave birth to two female children in the year 2007 and 2014. It is

pertinent to mention at this stage that the opposite party No.2 made

detailed allegation against her husband, petitioner herein and other

matrimonial relations delineating the manner how she was treated with

cruelty in her matrimonial home. It is also alleged that the accused

persons misappropriated stridhan properties of the opposite party

No.2/defacto complainant.

3. On the basis of the said complaint, police registered Ballygunge P.S

Case No.43 dated 25th May, 2022 against the petitioner and other

matrimonial relations of the opposite party No.2 under the above stated

offences.

4. The petitioner being the husband of opposite party No.2 has prayed

for quashing of the criminal proceeding instituted against him and other

matrimonial relations of the opposite party No.2 on the basis of the FIR

drawn on the written complaint made by the opposite party No.2 on the

ground that before registering the case the Officer-in-Charge attached to

Ballygunge Police Station failed to conduct preliminary inquiry in terms of

the guidelines made by the Hon'ble Supreme Court in Lalita Kumari vs.

State of U.P & Ors reported in (2014) 2 SCC 1.

5. It is submitted by Mr. Kallol Mondal, learned Counsel on behalf of

the petitioner that prior to registering a FIR case, it is the bounden duty of

the Police Authority, in the view of the guidelines laid down in Lalita

Kumari, to verify the veracity or otherwise all the information received to

ascertain as to whether the information reveals any cognizable offence or

not. In paragraph 120.6 of the said report, the Hon''ble Supreme Court

held as hereunder:-

"120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay."

6. Mr. Mondal further draws my attention to Memo No.378/Law Cell

dated 10th September, 2021 issued by the Government of West Bengal

Police Directorate, Bhabani Bhawan, Alipore under the signature the

Additional Director General of Police (Administration-II) West Bengal

directing the Police Officer to scrupulously follow the guidelines issued by

the Hon'ble Supreme Court of India relating to conducting preliminary

inquiry to ascertain whether the information reveals any cognizable

offences in certain cases.

7. Thus, it is submitted by the Advocate for the petitioner that before

registration of Ballygunge FIR Police Station Case No.43 of 2022, the

Officer-in-Charge of the Police Station had the mandatory duty to inquire

as to whether the complaint filed by the opposite party No.2 discloses a

cognizable offence or not. In support of his contention Mr. Mondal refers

to an unreported decision of a Coordinate Bench of this Court in the case

of Rahul Kr. Shaw & Ors vs. State of West Bengal & Anr : CRR

No.1534 of 2021, decided on 2nd December, 2021. Factual background

of the aforesaid case is almost similar to the case in hand.

8. A Coordinate Bench on due consideration of Lalita Kumari held that

the Investigating Agency in such cases ordinarily should conduct a

preliminary inquiry unless it is not shown that immediate registration of

FIR would defeat the very purpose of investigation or conducting a

preliminary inquiry will be an empty formality.

9. Mr. Debasish Ray, learned Advocate represents the opposite party

No.2. While referring his submission on merit of the case, it is pointed out

by Mr. Ray that Lalita Kumari never stipulated a hard and fast rule that

in all cases under Section 498A and other cognet penal provisions,

preliminary inquiry before registration of a police case is obligatory. To

substantiate his contention he refers to paragraph No.120.1, 120.2, 120.4

of Lalita Kumari.

10. For proper appraisal the ratio laid down in Lalita Kumari, I think it

is absolutely necessary to reproduce the above mentioned paragraphs

herein below:-

"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."

"120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence."

11. Thus it is submitted by Mr. Ray that jurisdiction of FIR is

mandatory if the information discloses commission of cognizable offence.

Only where the information does not disclose a cognizable offence, a

preliminary inquiry may be conducted only to ascertain whether

cognizable offence is disclosed or not. The Police Officer cannot avoid his

duty of registering offence if cognizable offence is disclosed.

12. Careful perusal of the directions/guidelines made by the Hon'ble

Supreme Court in Lalita Kumari suggests that preliminary inquiry is

necessary only when it is doubtful to hold that the information received

by the Police Officer has disclosed a cognizable offence or not.

13. In the instant case, I have carefully perused the FIR. The FIR

discloses specific acts of willful conduct, cruelty and harassment, both