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2011 Supreme(Gau) 47
IN THE HIGH COURT OF GAUHATI (ITANAGAR BENCH)
Hrishikesh Roy, J.
Simon Joseph – Appellants
Vs.
State of Arunachal Pradesh and Ors. – Respondent
Criminal Petition No. 3(AP) of 2009
Decided On: 19.01.2011
For Appellant/Petitioner/Plaintiff: P.K. Tiwari, T. Pertin, L. Tenzing and A.K. Singh, Advs.
For Respondents/Defendant: I. Basar, Addl. P.P. and N. Jollow, Adv.
Headnote:
Indian Penal Code,1860 - Sections 497, 498, 120(B) and 366 - Code of Criminal Procedure,1973 - Section 198 - Legality of the criminal proceeding - She flatly denied the charges made against the accused - It would be appropriate to take note of relevant facts - An information was lodged by Respondent with alleging that Petitioner had eloped with wife of and Naharlagun was registered under of IPC - In course of investigation, statement of victim lady was recorded where she flatly denied charges made against accused – Held, In so far as submission made that since under customary practice, brother of a deceased husband usually marry surviving widow and on this ground complaint of brother-in-law is cognizable - Court afraid that such submission cannot be accepted simply because, this special custom have not been statutorily recognized and no exception in provisions of Section of Code of Criminal Procedure has been made, to permit brother-in-law, to step into shoes of aggrieved, without satisfying conditions of Section Code of Criminal Procedure - For foregoing reasons - Court find enough merit in this petition and accordingly criminal proceeding in pending in Court of learned Judicial Magistrate, Naharlagun is quashed - Consequently Magistrates order is also interfered with since criminal action under Sections cannot start on a police report or a third partys complaint - Petition allowed
Hrishikesh Roy, J.
1. Heard Mr. P.K. Tiwari, learned Counsel appearing for the Petitioner. Also heard Mr. I. Basar, learned Addl. Public Prosecutor who represents the State, Mr. N. Jollow, learned Counsel appears for the Respondent No. 2 (informant).
2. The Petitioner challenges the legality of the criminal proceeding in the GR Case No. 38/2008 in the Court of the learned Additional Deputy Commissioner and ex-officio Judicial Magistrate, 1st Class, Naharlagun and seeks quashing of the order passed by the Magistrate on 3.8.2009, taking cognizance of the case against the accused Petitioner under Sections 497 and 498 of the Indian Penal Code (IPC).
3. Before proceeding to consider the legal arguments, it would be appropriate to take note of the relevant facts.
4. An information was lodged by the Respondent Nos. 2 and 3 with the Naharlagun Police on 9.3.2008 alleging that the Petitioner had eloped with Smt. Nabam Santi, wife of Late Nabam Tata (hereinafter referred to as "the deceased") and the Naharlagun P.S. Case No. 38/2008 was registered under Sections 366/497/498 of the IPC. In course of the investigation, the statement of the victim lady was recorded where she flatly denied the charges made against the accused.
5. On 14.3.2008 an additional FIR was filed by the informants with the further allegation that the deceased Nabam Tata was killed on 12.11.2007 by the Petitioner and the deceased's wife, who hatched a criminal conspiracy to kill the deceased and to marry each other. At the instance of the informants, the buried body of the deceased was exhumed on Court's order and the viscera collected from the exhumed body was sent for a report from the Central Forensic Science Laboratory (CFSL), Kolkata. In the report dated 31.10.2008 sent by the Junior Scientific Officer of the CFSL, it was opined that "no common poisons could be detected in the contents of each of the exhibits marked here" and accordingly charge under Sections 120(B)/302 of the IPC was not found established in the case.
6. Confronted with the negative finding from the CFSL, the police in their report made on 3.2.2009 before the Magistrate requested for taking cognizance under Sections 497 and 498 of the IPC and considering the police report the Magistrate directed issuance of process against the Petitioner.
7.1. It is argued by Mr. P.K. Tiwari, learned Counsel for the Petitioner that criminal process cannot be set in motion for an offence under Sections 497 and 498 of the IPC except upon a complaint by a person aggrieved by the offence. Referring to the provisions of Section 198 of the Code of Criminal Procedure, the learned Counsel submits that no person other than the husband of the woman can be deemed to be aggrieved under Sections 497 and 498 of the IPC and in the absence of the husband, criminal process can be issued only on the complaint of a person, who had care of the woman on behalf of the husband, at the time when the offence was committed and such complaint can be filed by a third party, only with leave of the Court to make such complaint.
7.2. It is pointed out by the learned Counsel that the victim wife in the instant case is a Government servant and "an independent person and was not under the care and protection of the two informants and the FIR filed by the Respondent Nos. 2 and 3 cannot be made the basis for taking cognizance of an offence punishable under Sections 497 and 498 of the IPC.
7.3. By referring to the definition of a "Complaint" under Section 2(d) of the Code of Criminal Procedure, the learned Counsel contends that a complaint for taking action under the Code of Criminal Procedure does not include a police report and therefore the FIR filed by the informants before the Naharlagun Police or the Police Report cannot be acted upon for taking cognizance of the case against the Petitioner.
7.4. The learned Counsel further submits that the police report dated 3.8.2009 cannot be a legal basis for taking cognizance by the Magistrate since the po
