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2006 Supreme(Cal) 753
High Court Of Calcutta
Before Biswanath Somadder, J.
SURENDRA KUMAR SURANA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 1245 Of 2006
Decided On : 11/30/2006
ABHIJIT ADDYA, AMALENDU MITRA, ANUJ SINGH, BHASKAR SEN, GANESH P.SHAW, H.K.Mitra, JOYMALYA BAGCHI, MILON MUKHERJEE, Sk.Kasem Ali Ahmed
The High Court should exercise its inherent jurisdiction under Section 482 of the CrPC sparingly and cautiously, and only when such exercise is justified by the test specified by the section itself.
Headnote:
CRIMINAL PROCEDURE CODE - Section 156 (3) - Quashing of FIR and complaint proceeding - Maintainability - Held that the High Court should not quash the proceeding under Section 156 (3) of the CrPC and the FIR at the stage of investigation, as the Magistrate had merely directed the police authorities to treat the complaint petition as a FIR for the purpose of investigation under Section 156 (3) of the CrPC.
Fact of the Case:
The petitioners filed an application under Section 482/401 of the CrPC to quash the proceeding, being Ekbalpore Police Station Case No. 83, dated 05.04.2006 under Sections 341/427/504/506 (ii)/34 of the IPC corresponding to C.G.R. No. 800 of 2006 pending before the learned Chief Judicial Magistrate, Alipore. The petitioners contended that the complaint petition did not disclose any cognizable offence of 'wrongful restraint' under Section 341 of the IPC.
Finding of the Court:
The Court held that the two judgments cited by the petitioners were rendered under different factual contexts and had no application in the present case. The Court further held that the Magistrate, while directing the police officer to investigate a complaint under Section 156 (3) of the CrPC by treating the same as a FIR, was merely asking the police to look into the complaint and file a final report/charge-sheet under the provisions of Section 173 (2) of the CrPC upon completion of investigation.
Issues: Whether the High Court should quash the proceeding under Section 156 (3) of the CrPC and the FIR at the stage of investigation.
Ratio Decidendi: The High Court should not quash the proceeding under Section 156 (3) of the CrPC and the FIR at the stage of investigation, as the Magistrate had merely directed the police authorities to treat the complaint petition as a FIR for the purpose of investigation under Section 156 (3) of the CrPC.
Final Decision: The application for quashing of the proceeding and the FIR was dismissed. The interim order, passed earlier, stood automatically vacated. However, the police were directed to complete the investigation based on the FIR, dated 5th April, 2006, as expeditiously as possible and file their report before the learned magistrate without undue delay and strictly in accordance with the provisions of the CrPC.
( 1 ) THIS is an application under Section 482/401 of the Code of Criminal procedure, 1973 (for short, 'the Code' ). The petitioners have prayed for quashing of proceeding, being Ekbalpore Police Station Case No. 83, dated 05. 04. 2006 under Sections 341/427/504/506 (ii)/34 of the Indian Penal Code corresponding to C. G. R. No. 800 of 2006 pending before the learned Chief Judicial Magistrate, alipore.
( 2 ) THE facts of the case, in a nutshell, are as follows : -
(i) On or about 27th March, 2006, one Raquaia Ayaz filed an application under Section 156 (3) of the Code, before the Court of learned Chief Judicial Magistrate at Alipore alleging commission of offences punishable under Sections 341/427/504/506 (ii)/34 of the indian Penal Code.
(ii) The learned Magistrate, by his order dated 27th March, 2006, directed the officer-in-charge of Ekbalpore Police Station to register a case upon the said complaint and cause investigation into the offences complained.
(iii) Subsequently the complaint was registered by the concerned police Station on 5th April, 2006 and was numbered as F. I. R. No. 83, dated 5th April, 2006.
(iv) Petitioners thereafter took out the instant application before this Court and the same was filed on 18th April, 2006.
( 3 ) THE instant application was earlier heard on 12th May, 2006. The court upon hearing the petitioners was, inter alia, pleased to stay all further proceedings in C. G. R. No. 800 of 2006 pending before the learned Chief Judicial magistrate, Alipore.
( 4 ) THE application was thereafter taken up for final hearing by this court on 6th November and was heard on subsequent dates from time to time and the hearing was concluded on 22nd November, 2006.
( 5 ) THE learned Advocate appearing on behalf of the petitioners has submitted that this is a fit case for quashing of the complaint case filed before the learned Magistrate Court under Section 156 (3) of the Code. According to the learned Advocate appearing on behalf of the petitioners, the de facto complainant has not been able to make out even a prima facie case of a disclosure of a cognizable offence of 'wrongful restraint' in the complaint petition so as to have enabled the learned Magistrate to direct the concerned Police station to treat the complaint petition as a F. I. R. for the purpose of investigation, inter alia, in respect of the said cognizable offence punishable under Section 341 of the Indian Penal Code. In this regard, the learned Advocate has drawn my attention to certain portions of the complaint petition and submitted that from a mere reading of the same it would be clear that the complaint petition does not disclose any cognizable offence of 'wrongful restraint' which is punishable under Section 341 of the Indian Penal Code. He has referred, in particular, to paragraphs 4, 6 and 11 of the complaint petition.
( 6 ) IN order to substantiate his case, the learned Advocate for the petitioners has relied on a judgment of the Gauhati High Court (Single Bench), reported in 1975 Cr LJ 1077 [shankarla! Sarma (Bhatra) v. State of Assam and anr. ]. He has also relied on a judgment of this Court reported in AIR 1935 Cal 252 : 36 Cr LJ 1935 Page-740 (Durga Pada Chatterjee and Anr. v. Nilmani Ghose ).
( 7 ) THE learned Advocate for the petitioners submitted that in the facts of the instant case, the aforementioned two judgments were squarely applicable and prayed that the proceedings before the learned Magistrate and the F. I. R. be quashed by this Court.
( 8 ) ON the other hand, the learned Advocate appearing on behalf of the private opposite party No. 2, being the de facto complainant, countered the submissions made by the learned Advocate appearing on behalf of the petitioners and submitted that the judgments cited by the learned Advocate for the petitioners were rendered under different factual context, i. e. , upon submission of charge-sheet, in one case and after an order of conviction was passed, in an
