Papori Borah Bhuyan vs Jitu Bhyan

Mridul Kumar Kalita, J

Heard Mr. B. K. Singh, the learned counsel for the petitioner. Also heard Mr. R. Chakraborty, the learned counsel for the respondent.

This application under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, Smti Papori Borah Bhuyan, praying for quashing of the proceeding of C. R. Case No. 185/2013 (Sri Jitu Bhyan Vs. Smt. Papori Borah Bhuyan) under Section 506 of the Indian Penal Codepending before the Court of learned Additional Chief Judicial Magistrate, Sonitpur, Tezpur.

The facts relevant for consideration of the instant Criminal Petition, in brief, are that the respondent Jitu Bhyan had filed a Complaint under Section 294/506 of the Indian Penal Code before the Court of learned Additional Chief Judicial Magistrate, Tezpur on 03.09.2013, naming the present petitioner as the accused in the said case, inter-alia, alleging that the present petitioner had murdered the brother of the respondent by engaging a killer and in that respect, an FIR was lodged by the respondent. It is also stated in the Complaint Petition that on the basis of the said FIR, Tezpur P. S. Case No. 1057/2012 corresponding to G. R. Case No. 1945 was registered under Section 109/302 of the Indian Penal Code. It is stated in the complaint that the brother of the respondent, namely, Prasanta Bhuyan had died during the pendency of the matrimonial case between the deceased brother of the respondent and the present petitioner in the Family Court at Guwahati.

It is further stated in the complaint that after the death of the said Prasanta Bhuyan, the present petitioner had applied for obtaining a Legal Heir Certificate in the Office of the Sub Divisional Officer, Mazuli, Bangaon, in order to get the pensionary benefit in respect of the deceased Prasanta Bhuyan.It is also alleged in the complaint petition that the said Legal Heir Certificate was not granted to the present petitioner, however, later on, it was obtained by her by submitting a copy of the Final Report in the Office of the Sub Divisional Officer, Mazuli, by forging the informant’s signature.

It is also stated in the said complaint that the respondent had filed an objection before the learned Chief Judicial Magistrate, Tezpur in respect of the Final Report submitted in Tezpur P. S. 1057/2012 on 03.08.2013, thereafter, the learned Chief Judicial Magistrate, Tezpur had rejected the Final Report and directed re-investigation.

It was also alleged in the complaint that being offended by the aforesaid fake direction of the reinvestigation the present petitioner had threatened the complainant over the telephone on 27.08.2013 to keep himself away from the matter of the Legal Heir Certificate of Prashant Bhuyan.At that time the respondent (complainant) was in Gotanaga, Tezpur and he was also threatened that he would otherwise face the same serious consequences like that of his brother Prashant Bhuyan. It was also alleged in the complaint when the respondent raised an objection, the present petitioner insulted him by using obscene language.

On lodging of the said complaint, the Court of learned Additional Chief Judicial Magistrate, Sonitpur, Tezpur had examined the complaint under Section 200 of the Code of Criminal Procedure, 1973 and, thereafter, took cognizance of the offence under Section 506 of Indian Penal Code and, accordingly, processes were issued to the present petitioner.

Mr. B. K. Singh, the learned counsel for the petitioner has submitted that the Trial Court took cognizance of an offence under Section 506 of the Indian Penal Code, without application of judicial mind on the facts and material before it and without properly conducting the inquiry, which is required to be done under Section 202 of the Code of Criminal Procedure, 1973.

He also submits that as the respondent, who was the complainant of C.R. Case No. 185/2013 was in Tezpur and the said case was filed in the Court of learned Chief Judicial Magistrate, Sonitpur, Tezpur and as the present petitioner was the resident of Village Rajahowligaon in the Jorhat district, which is beyond the jurisdiction of Chief Judicial Magistrate, Sonitpur, Tezpur, the Trial Court ought to have conducted proper inquiry before arriving at the satisfaction that there are sufficient material for proceeding against the present petitioner.

He submits that the said complaint case has been filed by the respondent with a mala-fide intention to harass the present petitioner and with an ulterior motive of wreaking vengeance on her and also with a view to spite her due to private and personal grudge.

He submits that before filing the present complaint case, the respondent has also lodged a false FIR against the present petitioner alleging her of having committed the murder of her husband, Prashant Bhuyan.He submits that on the basis of the said false FIR filed by the respondent, the Tezpur P.S. Case No.1057/2012 was registered and in the said case after completion of the investigation, the Final Report was submitted by the Investigating Officer.

He also submits that the husband of the present petitioner, namely, late Prasanta Bhuyan was a Junior Engineer in PWD (Control) of the State Government and he died in a road traffic accident when he was hit by a truck bearing Registration No. AS-01-TC-1412 at National Highway No. 52 at Borpatgaon in Sonitpur district on 28.05.2012. He submits that after filing of the Final Report on 16.03.2013, the respondent also objected before the SDO (Civil), Majuli regarding the issuance of a Legal Heir Certificate in respect of deceased Prasanta Bhuyan to the present petitioner, which compelled the present petitioner to approach this Court by filing a Writ Petition, which was registered as WP(C) No. 1285/2014. He also submits that in the said writ petition on 30.04.2014, an order was passed that pendency of the said writ petition would not be barred on the respondents to issue Legal Heir Certificate to the petitioner and, accordingly, the same was issued to the present petitioner.

The learned counsel for the petitioner has submitted that perturbed by the aforesaid fact, the respondent had lodged a false complaint before the learned Chief Judicial Magistrate, Sonitpur, Tezpur on the basis of which, C.R. Case No.185/2013 was registered.

He further submits that the petitioner after obtaining the Legal Heir Certificate also applied for getting the pensionary benefit, which was also granted to her due to intervention of this Court, when she approached this Court by filing another writ petition, which was registered as WP(C) No.4666/2015.

The learned counsel for the petitioner has submitted that though, the petitioner has named two witnesses in his Complaint Petition, during the enquiry conducted under Section 202 of the Code of Criminal Procedure, 1973, only one of the witnesses named in the complaint was examined, and neither the complainant nor the witness examined mentioned anything about the phone number from which, the call was made and, though, the date of when the alleged threatening call was made where the petitioner has been mentioned as 27.08.2013 no specific time when the same phone call was made has been mentioned in the Complaint Petition.

He submits that in the FIR, which was lodged by the respondent on the basis of which, Tezpur P.S. Case No.1057/2012 was registered the Investigating Officer had submitted the Final Report on 16.03.2013.

In the same case, though, the respondent had lodged an objection regarding the acceptance of the Final Report and, accordingly, by order dated 03.08.2013, the Court of learned Judicial Magistrate rejected the Final Report and directed further investigation by appointing another Investigating Officer. However, the second time also the Investigating Officer had submitted a Final Report on 19.11.2013, wherein it was categorically stated that there is no sufficient evidence available against the present petitioner regarding the allegation leveled by the respondent against her in the FIR and that the husband of the present petitioner died in an accident on the National Highway No. 52 under Sadanibhari outpost.

The learned counsel for the petitioner has submitted that considering the factual backgrounds of the case and the continuous attempts made by the respondent to debar the present petitioner from getting the pensionary benefit of her deceased husband, also in light of the fact that the Trial Court did not acted properly, in as much as it did not conduct the proper inquiry as envisaged under Section 202 of the Code of Criminal Procedure, 1973. The learned counsel for the petitioner has also submitted that the Trial Court acted without application of mind on materials available before it and had erroneously took cognizance of the offence under Section 506 of the Code of Criminal Procedure, 1973, against the present petitioner. He submits that this is a case where the sole purpose of filing the complaint case against the petitioner is to harass her and for wreaking vengeance against her as ultimately the petitioner was issued legal heir certificate as well as pensionary benefit in respect of her deceased husband.

The learned counsel for the petitioner has also submitted that the respondent has also suppressed certain material facts in the complaint filed by him before the Court of learned Additional Chief Judicial Magistrate, Sonitpur in C.R. Case No. 185/2013. He submits that in the complaint filed by the petitioner he has not stated that the petitioner is the wife of the late Prasanta Bhuyan though, the same fact was well known to him.

The learned counsel for the petitioner has also submitted that the respondent has also wrongly mentioned his relationship with the deceased Prasanta Bhuyan as his brother whereas the respondent is the son of the maternal uncle of the deceased husband of the present petitioner.

He further submits that this Court at the time of issuing notice to the respondent on 03.02.2014, after considering the prima facie materials in favour of the present petitioner, had stayed the further proceeding of Complaint Case No. 185/2013 and presently the said complaint has been kept in abeyance in pursuant to the direction of this Court.

He further submits that on the basis of the materials which are there in the records of Complaint Case No. 185/2013, it is unlikely to end in conviction of the present petitioner even if the said criminal proceeding is allowed to proceed, hence, it would be wastage of judicial time to continue with the further criminal proceedings of C.R. Case No.185/2013 and he, therefore, prays for quashing of the proceedings of C.R. Case No 185/2013. In support of his submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of the State of Haryana and others Vs. Bajanlal and others reported in 1992 Supplementary 1 SCC 335.

On the other hand, Mr. R. Chakraborty, the learned counsel for the respondent has submitted that the Trial Court has rightly took cognizance of offence under Section 506 of the Indian Penal Code, 1908 against the present petitioner on the basis of materials available on record.

The learned counsel for the respondent has submitted that the marriage of the petitioner was solemnized with late Prasanta Bhuyan on 09.05.2012 and, thereafter, said Prashant Bhuyan died on 28.05.2022 i.e., after more than about 10 years. However, the petitioner never resided together along with the deceased Prasanta Bhuyan. He also submits that even the petitioner did not attend the funeral of the late Prasanta Bhuyan. He submits that the respondent believes that it is the present petitioner, who got late Prasanta Bhuyan killed.

The learned counsel for the respondent has also submitted that it is not necessary for the complainant to furnish all detail regarding the alleged offence in his complaint petition and the same may be furnished to the Trial Court during the course of the trial and, therefore, the proceeding of C.R. Case No.185/2013 should be allowed to continue and should be allowed to reach its logical conclusion.

He also submits that this Court ought not to have granted an interim stay on further proceeding of the said complaint case on the date of motion of this case itself without affording opportunity to the respondent.

The learned counsel for the respondent submits that no illegality or irregularity has been committed by the Trial Court by taking cognizance of the offence under Section 506 of the Indian Penal Code, 1908 against the present petitioner on the basis of available materials on record, therefore, he prays that this Criminal Petition should be dismissed and the proceedings of C.R. Case No.185/2013 should be allowed to continue.

I have considered the submissions made by the learned counsel for both the sides. I have also gone through the materials available on record carefully.

On perusal of the materials on record, it appears that the respondent had on an earlier occasion accused the petitioner of murdering his brother by filing an FIR, however, the Investigating Officer after completion of the investigation had submitted the final report exonerating the petitioner. The respondent did not accepted the final report and filed a Naraji petition on which the Court of learned Chief Judicial Magistrate Sonitpur, Tezpur directed further investigation to be conducted by the Investigating Officer.

This time also after further investigation, the Investigating Officer submitted another Final Report being No. FR No. 91(1/2013) of 1911 2013) stating that the death of the husband of the petitioner had occurred in an accident and exonerated the petitioner.

It appears that the respondent had also objected to grant of legal heir certificate to the petitioner as well as grant of pensionary benefit of the deceased husband of the petitioner to the petitioner. Thus, the animosity between the respondent and the petitioner is there and the materials on record suggest that the respondent has been constantly trying his best to implicate the petitioner for the murder of his brother, though, on two occasions after investigation, police had lodged the Final Report.

Even in the complaint filed by the respondent before the Trial Court, quashing of which is sought for in this case, the respondent has stated that he still believes that the petitioner is responsible for the death of his brother. Under such circumstances, the possibility of filing of false complaint for wrecking vengeance against the petitioner by the respondent may not be ruled out. Thus, considering the facts and the circumstances of this case, the Trial Court ought to have been more careful while taking cognizance of offence under Section 506 of the Indian Penal Code against the petitioner on the basis of a complaint filed by the respondent.

It is apparent on perusal of the complaint petition filed by the respondent that the petitioner was residing beyond the territorial jurisdiction of the Court, which took cognizance on the basis of the complaint filed by the respondent. Hence, the inquiry ought to have been properly conducted before taking cognizance of offence under Section 506 of the Indian Penal Code against the petitioner.

It is also apparent from the complaint petition that the complainant/respondent has alleged that he was threatened by the petitioner over telephone. However, it is not clear from the testimony of the CW-1, whose statement was recorded by the Trial Court under Section 202 of Code of Criminal Procedure, 1973, as to how he came to know about the threatening to the respondent when same has been alleged to made telephonicallyto the respondent. There isalso no indication anywhere to the effect that the complainant/respondent told him about the same. There is also no indication as to from which phone number the call was made and at which time the call was made, so that the veracity of the accusation levelled against the petitioner could be verified by the call detail reports.

The purpose of an inquiry under Section 202 of the Code of Criminal Procedure, 1973 is to verify the accusation levelled in the complaint, with the help of corroborating materials before issuing the processes. Unless there are materials on record which is believable and which corroborates the accusation made in the complaint petition by the complainant, processes ought not to be issued against an accused in a complaint case. Mechanical issuance of summons would be against the very purpose of incorporating the statutory provision for inquiry under Section 202 of the Code of Criminal Procedure, 1973.

This Court is, therefore, of the considered opinion that there are materials on record indicating to the fact that the criminal complaint filed by the respondent against the petitioner is manifestly attended with mala-fide and the ulterior motive of the respondent for wreaking vengeance on the petitioner and with a view to spite her due to private or personal grudge. Further, materials before the record as indicated in the complaint petition are also insufficient and it is unlikely to end in conviction and, therefore, it will be a futile exercise and wastage of judicial time to continue with the criminal proceeding initiated by the respondent on the basis of complaint filed by the petitioner.

This Court is, therefore, of the considered opinion that this is a case of such a nature where non-interference by this Court in exercise of its powers under Section 482 of the Code of Criminal Procedure, 1973 would result in miscarriage of justice.

For the reasons mentioned hereinbefore, the said CR Case No.185/2013 instituted by the respondent is, hereby, quashed.