Madan Sarma vs Smti. Nijumoni Kalita
2021 Latest Caselaw 949 Gua

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GAHC010232342019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.Pet./1120/2019

            MADAN SARMA
            S/O BANESWAR SARMA, R/O VILL-GOPALPUR, P.O.-DHEKIPARA, P.S.-
            SIPAJHAR, DIST-DARRANG, ASSAM, PIN-784145

            VERSUS

            SMTI. NIJUMONI KALITA
            D/O CHANDRA KALITA, R/O BOKAKHAT POLICE COLONY, BOKAKHAT
            TOWN, P.S.-GOLAGHAT, P.O.-BOKAKHAT, DIST-GOLAGHAT, ASSAM, PIN-
            785612

Advocate for the Petitioner   : MR. P UPADHYAY

Advocate for the Respondent : MR. K BORUAH


                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                           ORDER

Date : 12-03-2021

Heard the learned counsel, P. Upadhyay, appearing for the petitioner and Mr. K. Boruah, learned counsel appearing for the sole respondent.

2. This is an application under Section 482 of the Cr.P.C., praying for quashing of the C.R. Case No. 11/2019 pending in the Court of learned Judicial Magistrate, First Class, Bokakhat, Assam.

3. The complainant filed a complaint before the Chief Judicial Magistrate, First Class, Bokakhat, alleging, inter alia, that the petitioner had sexual intercourse with her on the promise of marriage and thereafter backed out.

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4. The Court below examined the complainant under Section 202 of the Cr.P.C., and took cognizance of the offence under Section 417 of the IPC.

5. Though the word 'cognizance' (rooting from Old French "conoisance", based on Latin "cognoscere") or the words 'taking cognizance' have not been deciphered and defined in the procedural law, the same derive definite connotation from plethora of precedents and gain perceptive explanation and incisive exegesis from judicial pronouncements. While plain and dictionary meaning thereof is 'taking note of', 'taking account of', 'to know about', 'to gain knowledge about', 'awareness about certain things' etc. - In law, the common understanding of the term 'cognizance' is "taking judicial notice by a court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter 'judicially'". Thus, the legal sense of taking judicial notice by a court of law or a Magistrate is altogether different from the view and idea a layman has for it; however, a broad and general comprehension is 'judicial notice by a court of law on a crime which, according to such court, has been committed against the complainant, to take further action if facts and circumstances so warrant".

6. Chapter XV of the Code of Criminal Procedure ( Cr.P.C in short) with the title 'Complaints to Magistrates' contain four sections viz., 200 to 203 regarding examination of complainant, procedure by Magistrate not competent to take cognizance of the case, postponement of issue of process and dismissal of complaint.

7. Regarding the procedure involved in taking cognizance, to start with, there must be application of judicial mind to the materials, oral and documentary as well as other information submitted and apprised of. The litmus test of taking cognizance, whether it be relating to an offence on a complaint, or on a police report, or upon information of a person other than a police officer, is making a thorough assessment of the allegations by coming into grip with the facts presented and bringing into focus the law on the subject and applying the facts to the law and thereafter arriving at a conclusion by a process of reasoning and evidencing that all relevant facts have been taken note of and properly analysed in the light of the law applicable. An abridged and formulaic reproduction of facts to the exclusion of relevant aspects involved from the focus of mind would Page No.# 3/5

undoubtedly result in decision without application of mind, for, informed reasoning is the heart of the matter. While exercising discretion, with the intelligible differentia and by weighing the cause in judicial scales having regard to the facts and circumstances peculiar to each single case, courts must carefully decide and cautiously examine as to whether the complaint filed is an outcome of personal vendetta or outburst of animosity/enmity or originated from evil impact of fickle mind so as to wreak vengeance against the opponent, else, malicious prosecutions would be rampant putting at peril the valuable rights and liberties of citizens through courts themselves. Therefore, if a litigant or a citizen knocks at the doors of justice with a grievance, a Judicial Officer must apply judicial mind coupled with discretion and such exercise should not be arbitrary, capricious, whimsical, fanciful and casual, because just and right decisions cannot be taken by an ordinary individual but by a person with legal acumen, experience, knowledge and intelligence on the application of law with reference to the facts of a given case. There may be variety of grievances/cases and every grievance cannot be received as a matter of routine, and the Judicial Officer must be able to classify amongst the cases so as to decide whether a particular case is fit for taking cognizance or not. There are different judicial forums in the country viz., Debts Recovery Tribunal, Industrial Disputes Tribunal, Central Administrative Tribunal, Military Tribunal etc. and each forum can entertain only such cases which come under their exclusive purview and jurisdiction. Taking cognizance of a case which ought not to have been taken cognizance of would amount to encroaching into the jurisdiction of the other forum and would defeat the very purpose behind establishment of the forum concerned. An offence being acts of commission/omission made punishable under the law for the time being, cognizance can be taken only if the allegations and disputes attract the Penal Provisions in the enactment.

8. On the term "cognisance", the earliest decision of the Hon,ble Supreme Court is R.R. Chari vs The State Of Uttar Pradesh ( AIR 1951 SC 207).The Hon,ble Apex Court held that "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of offence". Deliberating upon the term inquiry enshrined in Section 202 Page No.# 4/5

Cr.P.C, the Hon,ble Supreme Court has observed in Mohinder Singh v. Gulwant Singh (1992 Cr. L.J.3161), as follows:

"11. This Court as well as various High Courts in a catena of decisions have examined the gamut and significance of Section 202 of the Code and settled the principles of law, the substance of which is as follows : The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage, does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code.

To say in other words, during the course of the enquiry under Section 202 of the Code, the Enquiry Officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry. Vide Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, and Pramatha Nath Talukdar v. Saroj Ranjam, 1962 Supp. (2) S.C.R. 297:1962 (1) Crl. L.J. 770."

9. In a very important judicial pronouncement, the Hon,ble Madras High Court in Ponnal @ Kalaiyarasi Vs. Rajamanickam and 11 others[ 1998 (4) Crimes 543] has ruled that ----

" No doubt, it is true that the complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the learned Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a prima facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage".

10. The Hon,ble Apex Court also under similar circumstances, in Dhana lakshmi v.

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R. Prasanna Kumar (AIR 1990 SC 494), while dealing with proceedings under Section 494 I.P.C. has held that when there are specific allegations in the complaint disclosing the ingredients of the offence, the Court shall give liberty to the complainant to substantiate the allegations by evidence at a later stage. In the light of the above principles, enunciated by the Hon,ble Apex Court in the decisions referred to above, I am of the view that in the instant case, the learned Magistrate has exceeded the scope of enquiry contemplated under Section 202, Cr. P.C. and has gone to the realm of appreciation and to the question of sufficiency of the evidence for conviction of the accused. Careful perusal of the complaint and the sworn statements given by the complainant and his witnesses would make it clear that there are allegations to the effect that his wife and the other named accused had committed theft of valuable articles. When such of those averments are available, it is not proper on the part of the learned Magistrate to cull out the variations and contradictions between the statements of the witnesses from whom the sworn statements have been recorded and then hold that the complaint is liable to be dismissed. Therefore, in my view, the impugned order suffers from the infirmity, which is liable to be set aside and accordingly, it is set aside. I deem it fit to give a direction to the Court below to take the complaint on file in respect of the accused and issue summons and proceed with the trial in accordance with the law.

11. The order dated 01.07.2019 is a cryptic one, without stating any reason as to why cognizance was taken, I find this is a fit case to exercise the power under Section 482 of the Cr.P.C. The impugned order, dated 01.07.2019, is set aside. However, the matter is remanded back to the Court below to examine more witnesses under Section 202 of the Cr.P.C., and thereafter, the Court shall pass necessary order.

12. With the above observation, the criminal petition is allowed and disposed of.

JUDGE

Comparing Assistant