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Judgment
Ajay Kumar Gupta, J.:-
The petitioners herein seek quashing of the proceeding being G.R. Case No. 1094 of 2023 arising out of Bankura P.S. Case No. 265 of 2023 dated 01.08.2023 under Sections 323/326/307/120B/420/506/34 of the Indian Penal Code, now pending before the Learned Chief Judicial Magistrate, Bankura.
The sum and substance of this case is that Opposite Party No. 2/complainant filed a complaint case before the Learned Chief Judicial Magistrate, Bankura, being M.P. Case No. 64 of 2023 dated 28.07.2023 under Section 156(3) of the Cr.P.C, alleging inter alia, to the effect that on 04.04.2023 at about 1.30 pm, when she was constructing her pucca house by demolishing her old dwelling mud house, the petitioners/accused persons obstructed her, and when she resisted, they hurled filthy languages towards her and her family members and threatened to kill them. They further started throwing bricks towards her and her family members from their rooftop. As a result, the Opposite Party No. 2 was grievously injured on her head. She had to go to the Bankura Sammilani Medical College & Hospital for treatment.
Owing to her being occupied in medical treatment and on account of the refusal of the police station to register an FIR against the petitioners, there was a delay in lodging the complaint before the jurisdictional Magistrate. She filed the aforesaid case praying for the said complaint to be treated as an F.I.R.
The police authority received the complaint from the learned court with direction to register the FIR. The police authority on 01.08.2023 at about 16.15 hrs registered a case being Bankura P.S. Case No. 265 of 2023 dated 01.08.2023 under Sections 323/326/307/120B/420/506/34 of the Indian Penal Code against the accused persons.
She had eventually also intimated the I.C. Bankura PS regarding the rectification of the date of incident in the FIR, i.e., the correct date of occurrence being 16th April, 2023 along with correct residential address of the accused. The application to the I.C. for the correction and investigation is available on the record.
After culmination of investigation, the police authority submitted a charge sheet being No. 284/2023 on 31.08.2023 against the petitioners by omitting Sections 326/307 of IPC as those sections were not substantiated by the materials collected during investigation in this case.
Learned counsel appearing on behalf of the petitioners contended that the instant proceedings have been maliciously initiated against them by the opposite party no. 2/de facto complainant. Petitioner No. 3 is a college student; on the date of the alleged incident, she was in college. Petitioner No. 2 is a school teacher. She was also in school on the date of the alleged incident, and Petitioner No. 1 is the husband of Petitioner No. 2. None of them were involved in any incident as alleged.
Learned counsel placed reliance on a decision of the Supreme Court in the case of Ranjit Singh Bath v. Union Territory Chandigarh in Criminal Appeal no. 4313 of 2024 to support his contention that order of the Learned Magistrate directing the registration of the FIR against the petitioners was bereft of following the correct procedure of law. In the said case, the Learned Court held that before a complainant chooses to adopt a remedy under section 156(3) of the Cr.P.C., he/she must exhaust the remedies available under sections 154(1) and 154(3) but that was not done prior to filing of the complaint and the learned jurisdictional Magistrate did not consider the said facts while allowing such complaint.
It was further submitted that the whole allegation is false, frivolous and concocted as well as based on untrue facts, arising out of previous long-standing property disputes between the parties. They have been falsely implicated in this case without any involvement. It was submitted that no such incident took place on 4th April, 2023 as alleged in the complaint. It was further submitted that the Learned Court, while directing registration of the case against the petitioners, failed to consider the averments of the complainant, and that the complaint itself was filed after a considerable delay without any explanation for the same. Therefore, the case has been filed only to harass the petitioners and with an ulterior motive; as such, it should not be permitted to continue; otherwise, it would amount to a gross abuse of process of law, and to secure the ends of justice, the case is liable to be quashed.
Learned counsel appearing on behalf of the Opposite Party No. 2, on the other hand, vehemently opposed the prayer of the petitioners and further submitted that the petitioners were involved in the alleged incident. They threw bricks from their rooftop. The Opposite Party No. 2 sustained injuries on her person and was treated in the hospital. Medical documents support the prosecution case; therefore, the revisional application is liable to be dismissed.
Learned counsel drew the attention of the court to the affidavit of the application and submitted that the accused No. 1, being one of the accused persons, has affirmed the affidavit of the revisional application, even though he is not competent to do so, under the provision of Section 4 of the Oath Act, 1969. He prays for dismissal of the revisional application on such ground as well, since the accused is debarred from affirming any affidavit in view of the embargo as laid down under section 4(2) of the Oath Act. He has relied on a judgment passed by the Single Bench of this Court in the case of Sushanta Kumar Pal v. the State of West Bengal & Anr. in CRR No. 2096 of 2010, particularly paragraph 16, to support his aforesaid contention.
Learned advocates representing the State produced the Case Diary and objected to the prayer of the learned counsel appearing for the petitioner. It was submitted that the case was registered against the present petitioners pursuant to the direction of the learned Magistrate in an application filed under Section 156 (3) of the Cr.P.C.
It was further submitted that during the investigation, sufficient material was collected against the petitioners. The statements of the witnesses were recorded. Medical documents were collected. It clearly supports the prosecution case. A prima facie case has been established against the Petitioners for the commission of offence punishable under Sections 323/120B/420/506/34 of the Indian Penal Code. Therefore, a full-fledged trial is required to be conducted to unearth the truth and punish the real culprits; as such, the revisional application is liable to be dismissed.
In reply, the learned counsel representing the petitioners refuted the contention of the opposite party no. 2 and further placed reliance on a judgment passed by the Division Bench of this court in the matter of Bonneswar Dutta & Ors.1 to bolster his submission that the accused can affirm the affidavit, when no other family member and/or tadbirkars have come forward.
Having heard the learned Counsels for the respective parties and having gone through the materials on record, case diary and memo of evidence, it appears that the allegations in the present case disclose that the Opposite Party No. 2 was obstructed while raising construction upon her own homestead, that she was abused and threatened, and that bricks were hurled at her and her family members from the rooftop of the petitioners, resulting in an injury upon her head for which she was required to be treated at the Bankura Sammilani Medical College & Hospital. These averments, taken at their face value, plainly disclose the ingredients of cognizable offences. The investigating agency, upon completion of investigation, has recorded the statements of witnesses and the medical documents relating to the injury sustained by the Opposite Party No. 2 was collected, and has submitted a charge sheet. The materials in the Case Diary, particularly statements recorded under Section 161 and 164 of the Cr.P.C., are sufficient to constitute a prima facie case against the petitioners in respect of the offences for which the charge sheet has been laid. The injury report also supports the case of the prosecution. It is significant to note that the investigating agency has not acted mechanically upon the complaint; Sections 326 and 307 of the Indian Penal Code were consciously omitted from the charge sheet for want of supporting materials. The investigation, therefore, bears the character of an application of mind rather than a mechanical endorsement of the allegations of the complainant’s allegations.
The petitioners' case is factually based on alibi, that Petitioner No. 3 was attending her college and Petitioner No. 2 was attending her school on the date of the alleged occurrence, and that Petitioner No. 1 stands implicated by no reason other than being the husband of Petitioner No. 2. Such a plea, however meritorious it may be, is a matter of defense. A plea of alibi is required to be established by evidence adduced before the trial court, and its acceptance or rejection depends upon the appreciation of such evidence in the context of the entire prosecution case. This Court, in the exercise of its inherent jurisdiction, cannot undertake that exercise on the strength of documents annexed to a revisional application, which have neither been proved nor tested. To do so would be to convert this proceedings into a mini trial, which is impermissible.
As regards delay, the complaint itself sets out the explanation that the Opposite Party No. 2 was occupied with her medical treatment, and that the police station declined to register her information. The explanation is neither inherently improbable nor unsupported, having regard to the medical documents on record. In any event, delay in setting the criminal law in motion is a circumstance to be weighed by the Trial Court while appreciating the evidence; it is not, by itself, a ground for quashing a proceeding which otherwise discloses the commission of an offence.
The discrepancy as to the date of occurrence in the complaint reciting 04.04.2023 and the correct date being stated to be 16.04.2023, has been sought to be explained by the Opposite Party No. 2 through her intimation to the Inspector-in-Charge, Bankura Police Station on the date of registration of the FIR itself, which forms part of the record. Whether the discrepancy is the result of a bona fide error, and what effect it has upon the credibility of the prosecution case, is essentially a matter of trial. A variance of this nature, standing alone, does not render the entire prosecution an abuse of the process of the Court.
The reliance placed by the learned counsel for the petitioners upon Ranjit Singh Bath v. Union Territory, Chandigarh (Supra) is misplaced on the facts of the present case. The proposition contended for is that a complainant must exhaust the remedies under Sections 154(1) and 154(3) of the Cr.P.C. before invoking Section 156(3). That requirement, assuming it applies in the terms contended, is satisfied upon the very averments contained in the complaint, which record that the Opposite Party No. 2 approached the police station and that registration of her information was refused. The petitioners have placed no material before this Court to displace that averment. Further, and in any event, the complaint was forwarded by the learned Chief Judicial Magistrate to the police authority upon an application of mind; an FIR was registered, a full investigation followed, and a charge sheet has been submitted, upon materials independently gathered. At this distance, an alleged irregularity at the pre-cognizance stage cannot be permitted to efface the fruits of an investigation which has disclosed a prima facie case, in the absence of any demonstrated failure of justice
It was faintly suggested that the learned Magistrate did not apply his mind to the averments of the complainant while directing registration of the case. Having perused the order and the record, I find no substance in the contention. The order directing registration of the FIR was passed upon a complaint which, on its face, disclosed cognizable offences, and the direction was in exercise of a power expressly conferred by Section 156(3) of the Cr.P.C.
It is necessary to advert to the objection raised on behalf of the Opposite Party No. 2 as to the competence of Petitioner No. 1, an accused person, to affirm the affidavit in support of the revisional application, and to the rival contentions advanced upon the decisions in Sushanta Kumar Pal v. State of West Bengal & Anr. (Supra), and Bonneswar Dutta & Ors.
A question arises before this Court, i.e., whether the accused can affirm the affidavit of the application filed under Section 482 of the Cr.P.C. and, if not, what would be the consequence.
This Court fairly accepts the view of the Division Bench, upon perusal of judgments, that an accused should not be deprived of affirming an affidavit since the accused cannot be held guilty until proven. The Division Bench of this Court has extensively explained the situation where the accused can affirm the affidavit in criminal proceedings as well. This Court would like to quote some paragraphs of the Judgment to understand the situation as under:
“16.Provisions of Oaths Act do not and cannot apply in case of filing an application under s. 438 of the Code. The Oaths Act applies for giving evidence before any court including a criminal court which has been explained by the Supreme Court in Laxmipat Choraria's case (supra). Section 4(2) of the Oaths Act, 1969 provides that ‘nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.
17.In Black's Law Dictionary ‘Lawful’ means legal, warranted or authorised by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law. The Oaths Act is not applicable in case of filing an affidavit in support of an application for Anticipatory Bail. Secondly, the question of testimonial compulsion under Art. 20(3) of the Constitution does not and cannot arise at all as it is well settled by a decision of the Supreme Court in the case of Chhotan Prasad v. Hari Prasad, reported in AIR 1977 SC 407 and in Sudha Devi v. Narayan, AIR 1988 SC 1381 that an affidavit is not evidence and accordingly it cannot be used as evidence in the proceeding. Further when the Parliament in its wisdom has provided that in order to file an application under s. 438 of the Code the applicant has to apply himself and the court cannot ignore such expression as the Parliament intended that such an application has to be filed by the applicant in order to avail of his remedy as he is the person who can only say before the court that he has reasons to believe that he may be arrested. If a contrary view is taken and if it is held that a middleman or a tadbirkar can affirm an affidavit to an application for Anticipatory Bail, in that event it would result in a counter-mischief which would be contrary to the spirit and object of the Act. Belief must be of the applicant seeking for an anticipatory bail. It is well settled principle that when a counter-mischief would arise if remedy provided by the Act where construed widely, the court may avoid or at least reduce it by limiting remedy.
18.Paragraph 138 of Francis Bennion on Statutory Interpretation provides that ‘Parliament intends that the enactment shall remedy a particular mischief. It is presumed therefore that Parliament intends the Court, in construing the enactment, to endeavour to apply the remedy provided by it in such a way as to suppress that mischief’.
19.Paragraph 141 of that Book provides that ‘the court seeks to avoid a construction that produces an absurd inappropriate, unfitting or unreasonable result’.
20.Paragraph 154 of that Book provides that ‘where the application of an enactment yields an adverse result (that is one detrimental to the subject of the state), the interpretative factors may on balance indicate that the court should curtail its application. This is known as strict construction.
21.There could not be any restriction on any person's right to move the court as right to judicial review is one of the basic structures of the Constitution and even if a man is accused of an offence excepting that he may be arrested and may be punished that does not show that all of his fights are suspended. On the contrary all of his rights remain intact and as it is.
22.In our view, if the system of tadbirkar filing application under s. 488 of the Code of Criminal Procedure is allowed to continue, that would be encouraging a system contrary to law and that would encourage Toutism and Middlemanship in the legal system and this system is bound to cause destruction to the present judicial system. If middlemen have no stake excepting that they are doing this for wrongful gain and the possibility of such making wrongful gain is there and this is also admitted by the members of the Bar before this Court that the lawyers when moving an anticipatory bail could not get any instruction for the applicant nor could they see the face of the applicant. There may be cases where the applicant may stay in a foreign country or in remote places of the country hiding himself and mere sending a Vokalatnama and merely on the basis of Vokalatnama sent by some means, the middlemen and/or tadbirkars, who are nothing but touts, could not be allowed to function and it does not require the exercise of any skill and/or research that these persons are polluting the system.
23.After bearing Mr. Balai Chandra Roy, Mr. Milan Kumar Mukherjee and Mr. Kazi Safiullah learned Public Prosecutor and other learned Advocates and after considering the various case laws and the provisions of Art. 20(3) of the Constitution of India and the provisions of the Oaths Act and the Criminal Procedure Code we are clearly of the view that there is no bar for the applicants to affirm an affidavit for filing an application under s. 438 of the Code of Criminal Procedure and that mere affirmation of an affidavit in support of the application does not amount to any testimonial compulsion and that the same also does not come within the purview of the provisions of 4(2) of the Oaths Act which is only confined to criminal proceedings; or in other words in course of trial and not in course of the investigation. In that view of the matter the tadbirkar or an agent cannot affirm an affidavit in an application for Anticipatory Bail and in each and every case the applicant has to affirm it either before the Oath Commissioner of this Court or before any Magistrate who is competent to administer an oath and in case of genuine difficulty the same could be affirmed by an agent duly authorised by the applicant in accordance with law as provided in the Civil Procedure Code. We also hold that this Court and no other Court in this State can entertain an application for Anticipatory Bail if it is affirmed by a mere tadbirkar and no such application can be entertained unless it is supported by an affidavit by the applicant or by his duly authorised agent in accordance with law and not by the tadbirkar or a middleman. Since this practice, which in our view, is contrary to law is continuing for a long time, we do not propose to reject such applications which are in the list and pending before this Court and that those cases can be taken up only after a supporting affidavit is affirmed by the applicant or by the persons who are duly authorised by the applicant in accordance with law within two weeks from today.”
This Court is unable to be satisfied with the argument of the Opposite Party No. 2 that the accused cannot affirm an affidavit in a criminal revisional application because High Court rules strictly mandate that any such application must be supported by an affidavit of a person who has personal knowledge of the facts. The purpose of filing an affidavit is to bind the accused on oath regarding the authenticity of the information and for the purpose of preventing the abuse of the court’s process. The purpose of affirming an affidavit to applications like anticipatory bail, applications seeking stay or interim order, condonation of delay, transfer application under section 406 or 407 of the Cr.P.C. or petition for quashing is to fulfil the procedural demand and same does not tantamount to an incriminating statement. Therefore, this fails to prove that the accused cannot affirm an affidavit in a criminal revisional application; accordingly, the contentions of the learned counsel for the Opposite Party No. 2 are unacceptable and the same is turned down.
Section 4(2) of the Oaths Act, 1968 prohibits administering an oath or affirmation to an accused person in a criminal proceeding since courts cannot force an accused person to take an oath or make an affirmation during criminal trials unless they choose to be examined as a witness for defence. An accused person can take an oath only if they voluntarily step forward to give evidence as a witness for their own defence, as its permits in criminal law.
However, having regard to the material on record, namely the complaint, the First Information Report, the charge sheet and the Case Diary, which have already been discussed hereinabove, this Court has found sufficient material to hold that a prima facie case is disclosed against the petitioners and that the revisional application is liable to be dismissed on that ground alone. Even though the objection relating to the affirmation of the affidavit is not upheld, it leads to the same conclusion in favour of the Opposite Party No. 2.
Hence the revisional application fails. Consequently, CRR No. 4830 of 2023 is dismissed. Connected applications, if any, are also, thus, disposed of.
The learned Trial Court shall proceed with the proceedings in G.R. Case No. 1094 of 2023 arising out of Bankura P.S. Case No. 265 of 2023 dated 01.08.2023 under Sections 323/120B/420/506/34 of the Indian Penal Code, now pending before the Learned Chief Judicial Magistrate, Bankura, as expeditiously as possible and in accordance with law.
Let a copy of this Judgment be sent to the Learned Trial Court for information.
Case diary, if any, be returned to the learned counsel for the State.
Interim order, if any, stands vacated.
All parties will act on the server copies of this Judgment uploaded from the official website of this Court.
Urgent photostat certified copy of this Judgment, if applied for, is to be given as expeditiously to the parties on compliance of all legal formalities.
Footnotes
- 1.1998 SCC Online Cal 13