The court emphasized the necessity of following mandatory procedures under criminal law before issuing process against an accused, reinforcing the legal standards for establishing a criminal breach of trust.

JUDGMENT :

SANJEEV KUMAR SHARMA, J.

1. The instant criminal petition has been preferred seeking quashing of the impugned order of cognizance dated 23.11.2022 passed in C.R. Case No. 375/2022 by the learned JMFC Barpeta, as well as the said proceedings themselves. The facts leading to the present criminal petition may be briefly summarized as follows.

2. The petitioner is the wife of the respondent O.P. No. 2. Their marriage took place in the year 2000, and she lived with the respondent No. 2 till 07.03.2022. In the course of the marriage, the petitioner gave birth to two male children, presently aged about 22 years and 12 years. During the subsistence of the marriage, the respondent O.P. No. 2 married again, and the petitioner was subjected to cruelty and torture at the hands of her husband/respondent/O.P. No. 2, as a result of which she left her matrimonial home and has been residing ever since at her parental home in Dhubri.

3. The petitioner instituted a petition against her husband being C.R. (D.V.) Case No. 163/2022 under Section 12 of the Protection of Women from Domestic Violence Act, 2005, as well as another case being Misc. Case No. 42/2022 under Section 125 Cr.P.C., both of which are pending before the learned Sub-Divisional Magistrate, Bilasipara, District Dhubri, wherein an order of interim maintenance of Rs. 5,000/- has been passed in favour of the present petitioner.

4. It is further stated that upon becoming aware of the aforesaid two cases, the respondent/O.P. No. 2 instituted the instant proceedings, i.e., C.R. Case No. 375/2022 under Sections 340, 294, 403, 406, and 34 of the IPC before the learned CJM, Barpeta, alleging that the petitioner had stolen all necessary documents of the respondent/O.P. No. 2 and the two children on 07.03.2022 and kept the same in her own custody. The said complaint case was transferred to the Court of the learned JMFC, First Class, who recorded the initial depositions of the complainant and his witnesses and subsequently, by order dated 23.11.2022, took cognizance against the petitioner, who was arrayed as accused No. 1 in the said complaint, and directed issuance of process accordingly.

5. Mr. S S Ahmed, learned counsel for the petitioner, submitted that the order taking cognizance of the complaint passed by the learned JMFC, Barpeta, is wholly illegal inasmuch as cognizance has been taken and process has been issued without following the mandatory provisions of Section 202 Cr.P.C. The Magistrate, after recording the depositions of the complainant and the witnesses present, was required to direct an investigation under sub-section (1) of Section 202 Cr.P.C., which the learned Magistrate failed to do. On this ground alone, the impugned order as well as the pending proceedings are unsustainable.

6. Per contra, learned counsel for the respondent No. 2 submitted that since the Magistrate recorded the depositions of the complainant as well as his witnesses, there was no necessity of ordering an enquiry/investigation by the police, notwithstanding the fact that the present petitioner/accused No. 1 is a resident of Dhubri, which is beyond the territorial jurisdiction of the learned JMFC, Barpeta.

7. It is not disputed that the present petitioner/accused No. 1 has been residing with her parents in Dhubri district after she left the matrimonial home on 07.03.2022. Section 200 Cr.P.C. reads as follows:—

“Section 200 Cr.P.C. – Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be red