Page No.# 1/9 vs The State Of Assam
2025 Latest Caselaw 2486 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 30 January, 2025

                                                                            Page No.# 1/9

GAHC010011252019




                                                                     2025:GAU-AS:1057

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

                                Case No. : Crl.Pet./77/2019

            SEFALI SUTRADHAR
            W/O. PRASENJIT SUTRADHAR, VILL. NO. 2 JAMDAHA, P.O. GERUKABARI,
            P.S. MANIKPUR, DIST. BONGAIGAON, ASSAM-783390.



            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner   : MR H R A CHOUDHURY, MR. M I HUSSAIN,MS. P AHMED,MR.
A AHMED

Advocate for the Respondent : PP, ASSAM, MS. S JAHAN, P.P., ASSAM




                                  BEFORE
                 HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                         JUDGMENT

Date : 30-01-2025

1. Heard Mr. A Ahmed, learned counsel for the petitioner. Also heard Mr. P Borthakur, learned Addl. PP, Assam.

2. The present application under section 482 Cr.P.C., read with Article 227 of the Constitution of India is filed for quashing the proceeding in CR Case No.112/2018 under section 211 IPC, pending in Page No.# 2/9

the court of JMFC, Bongaigaon.

3. The brief fact leading to the filing of the present case is that the sister-in-law of the petitioner filed a case against her husband on 21.03.2018, before the Manikpur PS which was registered as Manikpur PS Case No.106/2018, under section 376/511/506/34 IPC. According to the petitioner, such FIR was a false and fabricated one and the same was lodged for the reason that here was a land dispute between the husband of the petitioner and her brother-in-law.

4. Accordingly, being faced with such a false FIR alleging serious offences of rape, the petitioner also filed a counter case against her brother-in-law alleging rape which was registered as Manikpur PS case No.107/2018 registered under 376/511/354B/34 IPC.

5. During the pendency of such investigation both the brothers amicably resolved their dispute and they had decided to compromise the matter and withdraw the allegations and counter allegations.

6. In view of such settlement, the investigating officer submitted a Closure report numbered as FR No.80/2018 dated 27.04.2018 under section 173 Cr.P.C in connection with Manikpur PS Case No.107/2018. On such a final report being filed, a notice was sent to the petitioner for submitting her objection, if any. Accordingly, the petitioner appeared before the learned Addl. CJM, Bongaigaon on 30.11.2018 and filed Petition No.217/2018 wherein, she had stated that she has no objection, if the final report submitted by Investigating Officer is accepted.

7. The final report was accepted by the learned court, however, taking note of the fact she had admitted the fact of filing a false FIR as counter case, the learned magistrate decided to conduct an enquiry under section 340 CrPC and the petitioner was released on executing a PR bond of Rs.1,000/- directing the her to appear before the court on Page No.# 3/9

01.12.2018.

8. Accordingly, the petitioner appeared before the learned Addl. CJM Bongaigaon on 01.12.2008, and after appearing she asserted her earlier statement. Thereafter the learned Addl. CJM Bongaigaon passed the impugned order expressing its opinion that offences under section 211 is made out and accordingly sent the matter to the learned CJM, Bongaigaon with a request to consider the order dated 01.12.2018 as a complaint and the petitioner was taken into custody.

9. Subsequently, the learned CJM treated the impugned order 1.12.2018 passed by the learned Addl. CJM, Bongaigaon as a complaint and registered CR Case 118/2018 under section 211 IPC and transferred the matter to the court of learned JMFC, Bongaigaon for trial. The petitioner was released on bail by CJM, Bongaigaon under its order 1.12.2018.

10. Being aggrieved the present petition is filed.

11. Since the bone of contention is impugned order dated 1.12.2018 passed by the learned Addl. CJM, the same is reproduced herein below:

"IN THE COURT OF SMTI. LEENA DOLEY, ADDL.CJM, BONGAIGAON.

Manikpur PS Case No. 107/18 GR Case No. 321/18 01.12.18:-

The informant Smti. Shefali Sutradhar has appeared. Today the date is fixed for inquiry under Section 340 Cr.P.C.

I have conducted the enquiry of this case by considering the case record and have also heard the Addl.P.P.. and Asstt. P.P. The question of enquiry was to ascertain whether the informant has filed this complaint falsely against the accused namely Gobinda Arjya and Sujit Arjya with false accusation knowing that there is no just or lawful ground for such accusation with an intention to cause injury to him.

In this case the informant Smti. Shefali Sutradhar filed an ejahar in the Manikpur Police Station alleging that on 20.03.2018 at around 10.30 PM in the absence of her husband Sri Gobinda Arjya and Sujit Arjya entered her residence and while she was asleep on her bed these Page No.# 4/9

two persons tried to commit rape on her and when she shouted for help these two persons disrobed her made her half naked and later on fled away from her home.

Accordingly, a case was registered as Bongaigaon P.S. Case No. 107/18 S/S 376/511/354B/34 IPC. During investigation, the statement of the informant/victim was recorded U/S 164 Cr.P.C. by the Ld. SDJM (S) Smti Juma Sinha, where the informant has admitted on oath that her husband was alleged of committing rape of Anna Arjya and a complaint was lodged against him where he was an accused and therefore she has also filed a false case against husband of Anna Arjya namely Gobind Arjya with false accusation.

I have also perused the case diary in this case and found that the informant in her statement u/s 161 Cr.P.C. before the investigating officer has also stated in the same manner as stated in her statement U/S 164 Cr.P.C.

The investigating officer therefore finding no materials in this case against the accused submitted final report. This Court thereafter issued notice to the informant in order to know her opinion before disposing the final report and accordingly the informant appeared on 30.11.18 and stated before this Court that she has falsely lodged the complaint against the accused persons with false allegations only as a counter case for the complaint lodged against her husband. At the time of stating her opinion in the Court by the informant, Ld. Addl. PP. Smti. Ranjana Rani Dutta, Ld. Assistant P.P., Smti. Rima Dutta, Bench Assistant/FR Assistant Naren Sangma were present in the Court.

Now that the informant has admitted about lodging a false complaint on oath in her statement U/S 164 Cr.P.C. and also before this Court at the time of hearing. the informant while disposing the final report on 30.11.2018 and after considering the materials in the case record and the case diary, this Court is of the opinion that there is prima facie sufficient materials for presuming that Smti. Sefali Sutradhar has committed an offence punishable U/S 211 IPC and she is liable to be tried under the aforesaid section. Smti Sefali Sutradhar is taken into custody of this Court as an accused and the PSI, Bongaigaon Court is directed to produce this accused before the Ld. CJM, Bongaigaon immediately.

Forward a copy of this order to the Ld. CJM, Bongaigaon along with copies of all the relevant documents and the copy of this order be treated as a complaint The witnesses in this case will be the Ld. Addl.PP. Smti. Ranjana Page No.# 5/9

Rani Dutta, Ld. Assistant P.P. Smti. Rima Dutta, Bench Assistant/FR Assistant Naren Sangma and Ld. SDJM(S) Smti Juma Sinha and shall include the undersigned.

The enquiry concludes with this order".

12. Mr. Ahmed, referring to the facts of the case, more particularly, argues on the fact that admittedly the dispute was amongst the family members i.e., two brothers and their wives. According to Mr. Ahmed, learned counsel for the petitioner, admittedly the first FIR was lodged by the sister-in-law alleging that the husband of the petitioner had committed an offence under section 376 IPC and admittedly to counter such false allegation, the petitioner lodged the FIR alleging similar thing of rape upon her by her brother in law i.e, the husband of the informant in the first case.

13. Mr. Ahmed, learned counsel submits that it was a family dispute arising out of a land dispute and accordingly, they compromised the issue amongst themselves and therefore, the petitioner honestly stated before the IO as well as before the magistrate that she lodged the FIR falsely in view of lodging of false case against her husband. Therefore, in the aforesaid backdrop it cannot be said that the petitioner had committed any offence under section 211 IPC.

14. Referring to the impugned order, Mr. Ahmed, learned counsel submits that it is the mandate of section 340 Cr.P.C that the proceeding under section 211 IPC cannot be initiated without a written complaint and therefore, in the absence of a written complaint, the learned CJM could not have initiated the proceeding treating a judicial order to be a complaint and therefore on this count also, the impugned order is liable to be set aside.

15. Mr. Borthakur learned Addl. PP in his usual fairness submits that though the magistrate has rightly opined that the petitioner has Page No.# 6/9

committed an offence under section 211 IPC, however, the procedure adopted by the learned Magistrate may not be in conformity with the prescription of law made under section 340 Cr.P.C.

16. I have given anxious consideration to the arguments advanced by the learned counsel for the parties and perused the materials available on record.

17. Chapter XIV of Cr.P.C deals with the conditions for the initiation of certain proceedings. Section 195 Cr.P.C under Chapter XIV of the Code deals with prosecution for contempt of the lawful authority of public servants and offences against the public justice and also for offences relating to documents given in evidence. The said section, more particularly sub-clause (i) of Clause (b) of sub section (1) imposes a condition that no court shall take cognizance of any offence punishable under Section 193 to 196 IPC ( both inclusive), Section 199 IPC, 200 IPC, 205 to 211 IPC and 228 IPC, when such offence is alleged to have been committed concerning any proceeding in any Court, except on a complaint in writing of the court or by such officer of the Court as that Court may authorize in writing in this behalf or of some other courts subordinate to it on its behalf.

18. The Aforesaid provision of the law leaves no room for doubt that cognizance of an offence u/s 211 IPC can be taken only on a complaint in writing of the court (in the present case, the learned Addition CJM, Bongaigaon) or by an officer of the said Court, if such direction is issued by learned Addl. CJM.

19. Chapter XXVI of Cr.P.C deals with procedures relating to the prosecution of offences affecting the administration of justice and Section 340 under this chapter is relevant for the purpose of determination of the present Lis. Section 340 of the Cr. P. C. lays down the procedure which is Page No.# 7/9

required to be followed when a complaint under Section 195(1)(b)Cr.P.C., is filed.

20. A reading of Section 340(1) Cr.P.C, it is clear that before making a complainant, the court, before whom the proceeding is pending, must form an opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred in sub-section (1) of Section 195 Cr. P.C. appears to have been committed, concerning a proceeding of that court. After having such satisfaction/opinion, the court may make a preliminary enquiry. During the preliminary enquiry, it can record a finding to that effect, can make a complaint thereof in writing and send it to a Magistrate of 1st class having jurisdiction etc. Thus, Section 340 Cr.P.C is a guideline and procedural prescription for a court, which desires to initiate a proceeding for the offences enumerated u/s 195 (1) Cr. P.C.

21. The Hon'ble Apex Court while dealing with an issue of adherence to principles of natural justice while conducting an enquiry under Section 340 Cr.P.C, in the Pritish vs. the State of Maharastra and ors (2001) 1 SCC 253 held that reading of the sub-section (1) makes it clear that the hub of this provision is the formation of an opinion by the court (before which proceedings were held) that it is expedient in the interest of justice that an inquiry should be made into an offence, which appears to have been committed.

22. It was also held in Pritish (supra) that to form such an opinion, the court is empowered to hold a preliminary inquiry but it is not peremptory that such a preliminary inquiry should be held. Even without such preliminary inquiry, the court can form such an opinion, when it appears to the court that an offence has been committed concerning a proceeding in that court. It was further held that even when the court Page No.# 8/9

forms such an opinion, the court doesn't need to make a complaint. This sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation, it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding, it is always open to the court to do so, though the absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion.

23. The Hon'ble Apex Court in Pritish (supra) clarified that the preliminary inquiry contemplated is not for finding whether any particular person is guilty or not and the purpose of the preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. Such enquiry is a pre-trial enquiry

24. In the case in hand, the learned Magistrate thought had enquired and decided that an offence under section 211 IPC is made out, however, the mandate of law more particularly, under section 340 (I) Cr.P.C is that such magistrate was to make a complaint thereof in writing has not been followed.

25. Though complaint has been defined under section 2(d) of Cr.P.C to mean any allegation made orally or in writing to a magistrate with a view to his taking action under the Code etc, however,, the legislature in its wisdom while prescribing provision under section 340(1) IPC, specifically mandated that such complaint should be in writing and therefore, a complaint in writing is sine-qua-non in this regard. To launch a prosecution under section 211 IPC, the provision of Section 340 CrPC Page No.# 9/9

should be strictly followed, when it is by the court before whom the proceeding is pending. Therefore, a cognizance under Section 211 IPC can be taken by a competent court only on a complaint in writing in terms of section 340 (i) CrPC by itself or by an officer of the said court.

26. In the case in hand, the order of the Magistrate dated 01.12.2018 can be treated as the satisfaction arrived at by the said Magistrate as required under law after enquiry. However, for the reasons recorded herein above and by no stretch of the imagination, the said order can be treated as a written complaint as required under Section 340(1) Cr.P.C., which prescribes a written complaint.

27. That being the position, this court has no hesitation to hold that when the order dated 01.12.2018 cannot be treated as a Complaint, the subsequent order of the Chief Judicial Magistrate, Bongaigaon dtd.01.12.2018 treating such an order to be a Complaint and taking cognizance under Section 211 IPC is not sustainable under law. Accordingly, CR Case No.112/2018 is liable to be quashed being registered without there being a written complaint as per the mandate of Section 340(1) CrP.C.

28. Accordingly, the present revision petition stands allowed by setting aside and quashing the proceeding in CR Case No.112/2018 under section 211 IPC, pending in the court of JMFC, Bongaigaon. Bail bond stands discharged.

JUDGE

Comparing Assistant