Subrata Talukdar, J.@mdashIn this application the petitioner prays quashing of the proceeding being GR Case No. 1507 of 2012 arising out of Arambag Police Station Case No. 720 of 2012 dated 14th August, 2012 under Sections 448/ 328/ 376(2)(g)/ 379/ 195A of the India Penal Code (for short IPC) presently pending before the Ld. Additional Chief Judicial Magistrate (for short ACJM), Arambag. The petitioner also challenges order No. 20 dated 17th January, 2013 by which the Ld. ACJM was pleased to issue a warrant of arrest against the petitioner.
2. The brief facts of the case are as follows:-
a) That one Smt. Rakhi Panja, wife of one Soumen Panja lodged a complaint with the Inspector-in-Charge (for short IC) Arambagh Police Station stating, inter alia, that she, along with her husband, who is an employee of the Health Department of the Government of West Bengal and posted at village - Natibpur, P.S. - Khanakul, Dist. - Hooghly are residing in a rented house. There were introduced to two young men by the name of Arijit Adhikari and Raghunath Bera. A friendship developed between the two men and the couple.
b) According to the complainant on 28th July, 2012 at about 1 pm the two persons came to her house when her husband was absent. The said two persons took tea from the complainant. When the complainant came to the kitchen for preparing tea, the said Arijit Adhikari along with the said Raghunath Bera pressed the mouth of the complainant with a handkerchief because of which the complainant become unconscious. Thereafter the two persons committed rape upon the complainant and took away two gold ear rings along with Rs. 1 (one) lakh.
When the husband of the complainant returned home she narrated the incident to him after which a formal, FIR was filed.
c) That on the basis of the said FIR, Arambagh P.S. Case No. 720 of 2012 dated 14th October, 2012 being GR Case No. 1507 of 2012 under Sections 448/ 328/ 376(2)(g)/ 379 IPC was started. The present petitioner, one Ganesh Adhikari is the father of one of the accused namely, Arijit Adhikari.
d) That the said Arijit Adhikari was arrested but subsequently granted bail by the Hon''ble Division Bench of this Court. Charge sheet was submitted on 31st December, 2012 under Sections 448/ 328/ 376(2)(g)/ 379/ 195A IPC against the son of the present petitioner, one Raghunath Bera and also the present petitioner. According to the petitioner, he is not the FIR named accused. The charge sheet was submitted against the petitioner on the charge that the petitioner threatened the complainant to withdraw the complaint. On 17th January, 2013 the Ld. ACJM took cognizance and issued warrant against the petitioner.
e) The petitioner has contended that the sole allegation against him is that he threatened the complainant to withdraw the case. Therefore, the petitioner has been charged with committing the offence under Section 195A IPC only. The petitioner is also the Secretary of the Arambagh Zonal Committee of the Communist Party of India (Marxist) "CPI(M)" and he contends that out of political grudge he has been falsely implicated in the present case.
f) It is also the case of the petitioner that the alleged incident took place on 28th July, 2012 and the written complaint was lodged after a delay of two and half months on 14th October, 2012.
Prior to lodging the complaint on 28th July, 2012, the son of the petitioner, the said Arijit Adhikari had lodged a complaint against the complainant on 15th July, 2012 stating, inter alia, that the complainant teased him over the mobile. In respect of the said complaint on 15th July, 2012 a General Diary (for short GD) was recorded being Arambagh P.S. GD No. 1238 dated 15th July, 2012.
g) It is the further case of the petitioner that the husband of the complainant is a pathologist and although the complainant narrated the incident on 28th July, 2012 to her husband on the same date, the complainant was neither examined nor treated by any doctor.
h) It is also the case of the petitioner that the present Opposite Party 2 (for short OP 2), who is the complainant, has already filed an application for mutual divorce under Section 13B of the Hindu Marriage Act before the Ld. Additional District Judge, Arambagh seeking mutual divorce from her husband and the same has been registered as MAT Suit No. 122 of 2012.
i) The petitioner has therefore alleged that he has been falsely implicated in the charge sheet although he is not in any way connected to the incident dated 28th July, 2012 and is not an FIR named accused. The petitioner also complains of violation of due process in as much as no notice was issued to him by the Investigating Officer (for short IO) under Section 41A of the Code of Criminal Procedure.
The petitioner has stated that the non-fulfillment of the provisions of Section 41A Cr.P.C. is a violation of statutory due process. According to the petitioner, the IO could not have prayed for a warrant of arrest against the complainant without complying with Section 41A Cr.P.C. and the Ld. Magistrate failed to apply judicial mind to such infraction and thereby wrongly took cognizance and issued warrant of arrest.
j) It is the further case of the petitioner that assuming but not admitting that the contents of the charge sheet are correct, no offence can be said to be made out against him under Section 195A IPC. Having regard to the further fact that the criminal proceedings instituted against him are borne out of political grudge, the present complaint is vexatious and, by filing the present CRR 501 of 2013 the petitioner prays for quashing of the same.
3. Shri Uday Sankar Chattopadhyay, Ld. Counsel appearing for the petitioner takes this Court to the provisions of Section 195A IPC. Section 195A IPC read as follows:-
"Threatening or inducing any person to give false evidence.--Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;
and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with same extent such innocent person is punished and sentenced."
4. Taking this Court to the order dated 18th February, 2013 passed by the Ld. Magistrate, Shri Chattopadhyay has argued that no court shall take cognizance accept on a complaint made in writing and instituted by the concerned court. Shri Chattopadhyay further submits that the cognizance taken by the Ld. ACJM in the present proceedings is illegal since such cognizance has been taken mechanically on the basis of the charge sheet filed by the police. He points out that under the provisions of Section 195A IPC (supra) it is necessary, for instituting proceedings under the said section to, file a complaint with the Ld. Magistrate. However, in the facts of the present case no complaint has been lodged with the Ld. Magistrate and the Ld. ACJM has acted illegally by taking cognizance and issuing the warrant of arrest.
5. In support of his above arguments Shri Chattopadhyay relies upon
6. Per contra Shri Pawan Kumar Gupta, Ld. Counsel for the State/OP takes this Court to the Case Diary of the pending criminal proceedings. He has submitted that it is on the basis of the statement of the victim woman/complainant Section 195A has been added to the charge sheet. Such prayer was made by the IO on 23rd November, 2012 before the Ld. Magistrate and the prayer was allowed on 24th November, 2012 by the Ld. Magistrate.
7. On the point of maintainability of the charge under Section 195A IPC and the alleged bar under Cr.P.C. to take cognizance of such charge in the absence of a written complaint to the Ld. Magistrate, Shri Gupta has argued there is no such bar under the Cr.P.C. to take cognizance. He submits that Section 195A IPC was introduced with effect from.
8. Shri Gupta also argues that the victim woman/complainant has given her statement to the Ld. Magistrate under Section 164 Cr.P.C. In that view of the matter, she is a witness in the case and must be treated as such. He submits that charge sheet was submitted after proper investigation and there is no reason why the present proceedings should be quashed against the petitioner.
9. Heard the parties. Considered the material on record.
10. At the very outset this Court notices acute contradictions in the stand of the complainant. According to the complainant the alleged incident took place on 28th July, 2012. The complainant had alleged that she narrated the incident of 28th July, 2012 to her husband when he returned home. She has also stated in the complaint that initially due to embarrassment she could not narrate incident to her husband however, when her husband asked she subsequently narrated to him.
11. To the mind of this Court the complainant has suppressed the fact that at the time of the alleged incident dated 28th July, 2012 she and her husband were living separately. It is an admitted fact pleaded by both herself and her husband before the competent Civil Court in their application for divorce by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955 that both husband and wife were not living together on and from 6th February, 2011. In the application for mutual divorce it is categorically pleaded that the husband left the matrimonial home with their minor son on 6th February, 2011 and, from said date there was no cohabitation between the parties and the parties had no access to each other.
12. In the light of the above facts this Court notices the contradiction in the complaint that since the parties were not living together on and from 6th February, 2011 which includes the time of the alleged incident on 28th July, 2012, it is strange and apparently contradictory that the complainant would narrate the incident to her husband when he returned home. It is equally strange that the husband of the complainant could make enquiries with her regarding the alleged incident when admittedly at the relevant point of time both the parties admit that they had no access to each other pending finalization of their application for mutual divorce.
13. This Court therefore is persuaded to take the view that the complaint is founded on a suppression of material fact. The conduct of the complainant by concealing a material fact fails to inspire the confidence of this Court. This Court is therefore further persuaded to take the view that pendency of criminal proceedings against the present petitioner on the basis of a contradictory complaint based on falsehood will amount to an abuse of the process of law.
14. This Court also notices that the complaint has been filed on 14th October, 2012 i.e. two and a half months from the date of the alleged incident. Such utter delay in lodging the complaint in the face of the serious allegations levelled against the principal accused persons, also fails to inspire the confidence of this Court. The fact that the parties are living separately since 6th February, 2011 stands recorded by an order of the Ld. Additional District Judge, Arambagh, in MAT Suit No. 122 of 2012 being Order No. 1 dated 28th August, 2012. In view of this fact to the mind of this Court it does not stand to reason how the complainant could narrate the alleged incident of 28th July, 2012 to her husband when he returned home and asked her because at the relevant point of time both the parties were living separately and claimed to have no access to each other.
15. This Court further notices that the complaint against the present petitioner, who is the father of the principal accused No. 1 is under Section 195A IPC. The additional charge against the present petitioner has been added to the charge-sheet on the prayer of the Investigating Officer. By Order No. 13 dated 24th November, 2011 the Ld. Magistrate was pleased to allow such prayer and accordingly Section 195A IPC was added to the charge-sheet against the present petitioner.
16. It transpires from the record that the charge under Section 195A IPC has been added on the basis of the statement of the complainant recorded before the Ld. Magistrate under Section 164 Cr.P.C. to the effect that the present petitioner and the principal accused No. 1 threatened her to withdraw the case failing which they further threatened her with dire consequences.
17. As discussed hereinabove in this judgment Section 195A IPC pertains to offences covering the factum of threatening or inducing any person to give false evidence. The provisions of Section 195A IPC appear of Chapter XI of the Indian Penal Code and Section 191 IPC along with its explanations provides the conditions under which false evidence may be given. Section 191 IPC reads as follows:-
"Giving false evidence.--Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Explanation 1.--A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2.--A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know."
18. Therefore in the opinion of this Court the fact that the complainant claims to be threatened to withdraw her case and also claims of threat to her life is not identical to the nature of the offences falling within the ambit of Section 195A IPC or its defining provisions, viz. Section 191 IPC. At the highest the offence complained of in her statement before the Ld. Magistrate would amount to criminal intimidation but not in the nature of giving false evidence or threatening or inducing a person to give false evidence as provided under Sections 191 and 195A IPC (supra). In such view of the matter this Court is of the opinion that the provisions of Section 195A IPC have been pressed into service mechanically by the Investigating Officer and the Ld. Magistrate also failed to apply his mind to the frivolity of adding a misconceived section to the charge-sheet by his order dated 24th November, 2012.
19. In the backdrop of the above discussion this Court finds that the impugned proceedings against the present petitioner are not only misconceived but also vexatious. This Court is therefore inclined to quash the same in exercise of its inherent powers under Section 482 Cr.P.C. The impugned proceedings being GR Case No. 1507 of 2012 arising out of Arambagh Police Station case No. 720 of 2012 dated 14th October, 2012 along with the charge-sheet No. 934 dated 31st December, 2012 and the Order No. 20 dated 17th January, 2013 issuing warrant against the petitioner pending before the Ld. ACJM, Arambagh are therefore quashed.
CRR 501 of 2013 is accordingly allowed.
20. There will be, however, no order as to costs.
21. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
