Allowed

The Union Territory of a and N Islands v. Deepika Kishen and Ors.

Calcutta HC9 Aug 2021WPA/9844/2020

Case brief

AI extract

What is this about?

This judgment holds that a Section 156(3) Cr.P.C. order is interlocutory and an application under that section is not a 'complaint' under Section 2(d). Consequently, the Superintendent of Police lacked locus standi to quash it, and the writ petition challenging the Magistrate's direction to register an FIR was dismissed.

What did the court decide?

The Station House Officer, P.S Aberdeem is directed to start a specific case against the accused persons named in the Section 156(3) application immediately.

The Union Territory of a and N Islands Vs Deepika… — Criminal Trial and Appeal | Calcutta HC (2021)

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IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ]

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PRESENT: THE HON’BLE JUSTICE BIBEK CHAUDHURI

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W.P.A 201 of 2021

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(Previously registered as W.P.A 2748 of 2021 at Principal Bench)

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Deepika Kishan @ Deepika Kishen Vs.

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The Union of India & Ors

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Mr. Deep Chaim Kabir, [through V/C] Mr. Ajith Prasad … for the petitioner Mr. Krishna Rao … for the Administration Mrs. Anjili Nag … for the intervenor

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With W.P.A 9844 of 2020 With W.P.A 9863 of 2020

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The Union Territory of A & N Islands through the Superintendent of Police Vs.

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Deepika Kishen & Ors

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Mr. Krishna Rao … for the petitioner Mr. D.C. Kabir, [through V/C] Mr. S. Ajith Prasad … for the respondent No.1 Mr. KMB Jayapal … for the respondent No.2 Mrs. Anjili Nag … for the respondent No.4

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With CRR No.1678 of 2020

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Shri Satvir Singh Vs. The state & Ors

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Mrs. Anjili Nag … for the petitioner Mr. Krishna Rao … for the respondent No.1 Mr. D.C. Kabir, [through V/C] Mr. S. Ajith Prasad … for the respondent No.2 Mr. KMB Jayapal … for the respondent No.3

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Heard on : February 24^th , 26^th and March 1^st , 2021 Judgment on : August 9^th , 2021

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BIBEK CHAUDHURI, J.

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The above numbered three writ petitions and one criminal revision were heard analogously in the Circuit Bench of the High Court, A and N Islands, Port Blair on 1^st March, 2021. Subsequently, the records of the case were produced before me from the office of the learned Registrar General, High Court, Calcutta by his forwarding note dated 9^th March, 2021 on 16^th March 2021. Unfortunately, I suffered with Covid-19 from 12^th April, 2021 and was hospitalised. For long three months thereafter, I was suffering from post Covid disease, like fibrosis of lungs, breathlessness, formation of cysts at different joints of the body

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etc. Therefore, there was delay in delivering the judgment of the above mentioned matters.

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One Deepika Kishan @ Deepika Kishen filed WPA 2748 of 2021 stating, inter alia, that her marriage was solemnized with one J. Ramkrishna, Sub-inspector of Police, posted at the relevant point of time at Havelock P.S according to Hindu Rights and Ceremonies on 9^th August, 2017. Subsequent to her marriage, the petitioner came to know that her husband had previous marriage with one Shipra Majumdar which was solemnised way back on 26^th November, 2009. The petitioner could understand that her husband Ramkrishna had entered into a fake marriage with her only to establish physical relation with her. Thus, she was deceived and cheated by the said Ramkrishna. Her consent to establish physical relationship was obtained illegally by practicing fraud upon her.

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Finding no other alternative Ramkrishna filed Matrimonial Suit No.2 of 2018 before the Family Court at Port Blair against both his first wife and the petitioner for declaration that both the marriages were void. Again on 15^th January, 2018 he filed a suit against his first wife, Shipra Majumdar claiming a declaration of

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jactitation of marriage. An order was passed on admission in the said suit that no marriage between Ramkrishna and Shipra was solemnised. On the other hand, above mentioned Mat Suit No.2 of 2018 was dismissed for default.

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On 18^th January, 2018, the said Ramkrishna filed OS No.7 of 2018 against the petitioner. In the said suit he prayed for adinterim and temporary injunction against the petitioner restraining her, her relatives, men and agents from lodging any complaint before any authority against him. The learned trial judge passed an ex-parte order of ad-interim injunction directing that no complaint could be lodged against Ramkrishna by the petitioner or her representatives. On 12^th June, 2018, the said ad-interim order of injunction was however vacated by the trial judge. Since the date of filing of OS No.7 of 2018 till the order of ad-interim injunction being vacated, the petitioner suffered great prejudice in view of the fact she could not lodge any complaint before the competent authority though she could not be injuncted from taking appropriate step in accordance with law. On 22^nd January, 2018 she made a complaint before the Director General of Police, Andaman and Nicobar Islands. On 19^th June, 2018 she made a complaint against her husband Ramkrishna before the Superintendent of Police, South Andaman. Surprisingly enough though the petition of complaint disclosed offences under Section

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376/493/326 of the Indian Penal Code, Police registered a noncognizable case under Section 495 of the Indian Penal Code against the said Ramkrishna.

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On 20^th July, 2018 the petitioner went to Havelock to her friend, one Ramla. On the same date she returned to Port Blair. On 22^nd July, the said Ramla contacted her over phone and warned her not to take any legal step against Ramkrishna. It is alleged by the petitioner that Ramla was framed by her husband being a police officer of Havelock to lodge a false complaint against the petitioner to the effect that she committed theft of gold ornaments of Ramla. On the basis of a complaint, FIR was lodged against the petitioner at Havelock Police Station on 25^th July, 2018 under Section 380 of the Indian Penal Code. The petitioner obtained anticipatory bail and all along cooperated with the Investigating Authority in connection with the said case. On 9^th March, 2019 she was summoned to Aberdeem Bazar P.S and was detained illegally and subjected to custodial torture in the name of interrogation. Finally she was released late at night. On the next day the petitioner went to the jurisdictional police station to file a fresh complaint, but police authorities refused to accept such complaint from the petitioner. On 11^th March, 2019 the petitioner was medically treated at G.B Pant Hospital. She narrated the entire history of the incident and she was referred for specialised

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treatment by the gynaecologist and E.N.T specialist. On 12^th March, 2019 she informed all incidents to the Director General of Police who assured her that he would look into the matter but refused to take any written complaint from her. The police authority being influenced by her husband refused to take any action on the basis of the complaint made by her on 19^th June, 2018 and refused to take any further complaint from the petitioner. The Police Authority started threatening her saying she would be implicated in false case. Her bail would be cancelled and she would be taught a lesson. On subsequent dates the petitioner was repeatedly pressurised to withdraw the complaint against her husband by different Police Officers as well as unknown outsiders. On 9^th June, 2019 she gave a written representation to the Station House Officers, Chatham Police Station and Bamboo Flat Police Station with a copy to the Superintendent of Police, South Andaman District requesting them to take necessary steps by registering a cognizable case but the said representation received the same effect of mute inaction on the part of the Police Officers. Persistent police inaction led the petitioner to file a writ petition before this Court being WP No.164 of 2019. A Coordinate Bench disposed of the said writ petition on the following observation:

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“Since it is open to the petitioner to approach an appropriate magistrate under Section 156(3) of the Code, the present writ petition cannot be carried forward. Accordingly, the disputes

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between the parties are not gone into and the merits of the matter left unaddressed while leaving the petitioner free to exhaust the petitioner’s other remedies before approaching this jurisdiction again, if necessary.”

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After the disposal of the writ petition, the said Ramkrishna and his family members pretended to settle the dispute with the petitioner amicably. However, she could understand that only intention of her husband was to kill time on the pretext of compromise. On 2^nd September, 2020 she lodged a written complaint to the Station House Officer, Aberdeem Police Station and the Superintendent of Police, South Andaman. The Police Authority however did not take any action which is revealed from the reply given by the Superintendent of Police, South Andaman to the petitioner’s query under the Right to Information Act. Subsequently, on 16^th November, 2020 the petitioner was compelled to file a petition of complaint under Section 156(3) of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Port Blair. The learned Chief Judicial Magistrate after hearing the petitioner’s learned Counsel passed an order directing registration of FIR against three accused persons. In spite of receipt of the petition of complaint under Section 156(3) of the Code of Criminal Procedure and direction of the learned Chief Judicial Magistrate, Port Blair, Station House Officer of Aberdeem P.S did not register any specific case against the accused persons.

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Such blatant police inaction prompted the complainant to

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file the instant writ petition for the following reliefs:

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(a) A writ of and/or Order and/or Direction in the nature of Mandamus do issue commanding the Respondent authorities and/or the each one of them and/or their men or agents or officers to forthwith initiate action and/or take appropriate legal steps for compliance with the Order dated 16.11.2020 passed in connection with Misc. Case No. 42 of 2020 under Section 156(3) of the Code of Criminal Procedure for registration of a First Information Report as ordered against the three persons under the appropriate legal provisions regarding cognizable offences as directed for appropriate investigation and prosecution thereof;

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(b) A Writ of and/or Order and/or Direction in the nature of Mandamus do issue commanding the Respondent authorities and/or each one of them and/or their men or agents or officers to forthwith hand over the investigation to an appropriate investigating agency independent of the Andaman and Nicobar Islands police as may be ordered by this Hon’ble Court, for fair, impartial and neutral investigation and report as per law and for monitoring of the investigation by this Hon’ble Court in accordance with law with necessary protection to be provided to the petitioner as may be deemed fit and proper;

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(c) A Writ of and/or Order and\or Direction in the nature of Prohibition do issue prohibiting the Respondent authorities herein in failing and/or neglecting to discharge their statutory duties in initiating appropriate action and/or taking steps for compliance with the Order dated

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16.11.2020 passed in connection with Misc. Case No. 42 of 2020 under Section 156(3) of the Code of Criminal Procedure for registration of a First Information Report as ordered against the three persons under the appropriate legal provisions regarding cognizable offences as directed for appropriate investigation and prosecution thereof;

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(d) A Writ of and/or Order and/or Direction in the nature of Certiorari calling on the respondents and each one of them to certify and remit the records of the case to this Hon’ble Court such that conscionable justice may be done to the case, together with all documentation to explain their lack of actions as per law in connection with the aforesaid events;

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(e) Pass Appropriate Direction(s)/Order(s);

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(f) Issue Rule Nisi in terms of Prayers (a),(b) (d) and (e) hereinabove;

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(g) Pass an Interim Order in the nature of an Order directing the respondent authorities and/or each one of them and/or their men or agents of officers to forthwith initiate action and/or take appropriate legal steps for compliance with the Order dated 16.11.2020 passed in connection with Misc. Case No. 42 of 2020 under Section 156(3) of the Code of Criminal Procedure for registration of a First Information Report as ordered against the three persons under the appropriate legal provisions regarding cognizable offences as directed for appropriate investigation and prosecution thereof;

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(h) Pass ad-interim Order(s) in terms of the above interim Orders;

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(i) Make the Rule absolute if no cause or insufficient cause is shown.

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(j) Pass suitable Order(s) as to Costs, including legal expenses;

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(k) Pass such other and/or further order or orders, and/or direction or directions as may seem fit and proper.”

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WPS No.9844 of 2020 was filed by the Superintendent of Police against the petitioner of WPA 2748 of 2021 praying for a writ in the nature of certiorari by setting aside and quashing the order dated 16^th November, 2020 passed by the learned Chief Judicial Magistrate in Misc Case No.42 of 2020 by holding that a prima facie case under Section 342/345/348/323/120B IPC is found to have been made out against the opposite party No.2, 3 and 4. In the said writ petition it is contended by the petitioner, Superintendent of Police that the opposite party No.1 and 2 are married couples and their marriage was solemnised according to Hindu Rights and Customs on 9^th August, 2017 and they were residing together as husband and wife. During their marital life, respondent No.1 came to know that respondent No.2 had married earlier. She lodged a complaint before the Police Authority alleging the said fact against her husband. On the basis of her complaint NCFIR was lodged against J. Ramkrishna, S.I of Police under Section 495 of the Indian Penal Code. It is further contended by

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the writ petitioner of the instant writ petition that this Court vide order dated 15^th July, 2019 in WP No.164 of 2019 never permitted the opposite party No.1 to file a petition of complaint under Section 156(3) of the Code of Criminal Procedure. Therefore, the order dated 16^th November, 2020 passed by the learned Chief Judicial Magistrate in Misc Case No.42 of 2020 is illegal, inoperative and not binding upon the Police authority including the petitioner and liable to be quashed.

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The Superintendent of Police, South Andaman again filed WPA No.9863 of 2020 praying for issuance of writ with a same prayer as that of WP No.9844 of 2020.

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In this writ petition, it is alleged by the petitioner a case under Section 380 of the Indian Penal Code was registered at Havelock P.S being FIR No.38 of 2018 dated 25^th July, 2018 against the petitioner of WPA No.2748 of 2021 on the allegation of one Smt. Ramla Begum that she committed theft of gold ornaments from the government quarters of the said Ramla Begum. The accused obtained anticipatory bail in connection with the said case in CRM No.5447 of 2018. As the accused was not cooperating with the Investigating Agency, the Police Authority filed an application being CRAN No.009 of 2019 praying for cancellation of anticipatory bail granted in favour of the accused. The said

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application was however rejected vide order dated 1^st April, 2019 by the Division Bench of this Court.

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The said writ petition came up for hearing before a Coordinate Bench on 2^nd December, 2020 when the learned Advocate for the petitioner admitted that the instant writ petition was filed twice due to inadvertence and accordingly this Court passed an order that the file of the instant writ petition be tagged with the file of the WPA No.9844 of 2020.

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One Satvir Singh, Sub-Inspector of Police presently posted at P.S Aberdeem, Port Blair has filed the above numbered criminal revision alleging, inter alia, that the opposite party No.2 herein filed Misc Case No.42 of 2020 impleading the petitioner as an accused for committing an offence under Sections 376/493/494/506/509 read with Sections

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342/345/348/323/218/219/220/119B of the Indian Penal Code. It is further stated by the petitioner that on 9^th September, 2018 the petitioner was entrusted with investigation of a case under Section 380 of the Indian Penal Code initiated against the opposite party No.2. It was alleged that the opposite party No.2 committed theft of gold ornaments from the house of one Ramla Devi. In the said case the opposite party No.2 obtained an anticipatory bail from a Coordinate Bench of this Court. During investigation the

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petitioner gathered incriminating evidence against opposite party No.2 therefore an application was filed for rejection of anticipatory bail of the opposite party No.2/accused. The opposite party No.2 alleged that the petitioner being the Investigating Officer of the case under Section 380 of the Indian Penal Code tortured her mercilessly in connivance with her husband J. Ramkrishna. The High Court disposed of the said application directing the Investigating Officer to conclude investigation within 10 days. Prayer for cancellation of anticipatory bail was rejected. The petitioner submitted charge-sheet against the opposite party No.2 on 8^th April, 2019.

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It is further alleged by the said Satvir Singh, petitioner herein that he came to know that the respondent No.2 filed a writ petition seeking for issuance of prerogative writ upon the Police Authority to register FIR against the respondent No.3. The Hon’ble High Court disposed of the said writ petition No.164 of 2019 holding, inter alia, that the said writ petition could not be carried forward due to availability of other remedies, i.e., filing of petition before the learned Magistrate under Section 156(3) of the Code of Criminal Procedure. Long time after disposal of the said writ petition No.164 of 2019, the opposite party No.2 made an application before the learned Chief Judicial Magistrate at Port Blair under Section 156(3) of the Code of Criminal Procedure. The

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learned Chief Judicial Magistrate passed an order dated 16^th November, 2020 directing the Station House Officer, P.S Aberdeem to register a specific case treating the petition filed by the opposite party No.2 as FIR. In the said petition specific allegation has been made against the petitioner. The petitioner has alleged that as Investigating Officer of a case under Section 380 of the Indian Penal Code, he collected evidence against the opposite party no.2. Out of grudge, he was implicated as an accused in the petition under Section 156(3) of the Code of Criminal Procedure.

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Under such circumstances the petitioner has prayed for quashing the order passed by the leaned Chief Judicial Magistrate on 16^th November, 2020 in Misc Case No.42 of 2020. I have heard Mr. Deep Chaim Kabir, learned Advocate for the petitioner in WPA No.2748 of 2021, Mr. Krishna Rao, learned Advocate in WPA No.9844 of 2020 and Mrs. Anjili Nag, learned Advocate for the petitioner in CRR No.1678 of 2020.

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From the pleadings of the parties the following undisputed facts situations are noted hereinbelow:-

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(a) It is not disputed that marriage of J. Ramkrishna was solemnised according to Hindu Rights and Ceremonies with the petitioner of WPA 2748 of 2021.

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(b) Admitted is the fact that previously the said J. Ramkrishna married to another lady, named, Shipra Majumdar on 26^th November, 2009.

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(c) J. Ramkrishna filed a suit for declaration being Mat Suit No.2 of 2018 against the petitioner of WPA 2748 of 2021 for declaration that marriage held between him and the petitioner was null and void. The said suit was dismissed for default.

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(d) The said J. Ramkrishna again filed Mat Suit No.5 of 2018 against Shipra Majumdar for jactitation of marriage. The said suit was decreed on admission. (e) The said J. Ramkrishna filed O.A 7 of 2018 against the petitioner praying for permanent injunction restraining her from taking any action or making any complaint against him on the basis of her marriage with him or claiming any right as his wife whatsoever. Initially an ad-interim order of injunction was passed in favour of the said J. Ramkrishna but subsequently it was vacated by the trial court vide order dated 12^th June, 2018.

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The record of WPA 2748 of 2021 further shows that the petitioner made several complaints and representations before the Higher Officers of Police Force including Director General of Police,

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Andaman and Nicobar Islands making specific allegation against her husband J. Ramkrishna for committing offence under Section 376/493/326 of the Indian Penal Code. However, the police did not start any cognizable case against the said J. Ramkrishna. On the contrary, a non-cognizable police report was filed against the said J. Ramkrishna under Section 495 of the Indian Penal Code.

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It is further not disputed that a criminal case was registered against the petitioner of WPA 2748 of 2021 for committing offence under Section 380 of the Indian Penal Code. It was alleged that the petitioner committed theft of gold ornaments of one Ramla of Havelock.

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It was alleged by the petitioner that in connections with the said case she was illegally called at Aberdeem P.S. She was mercilessly assaulted by some police personnel including the petitioner of CRR No.1678 of 2020. She was also illegal restrained and confined in police lockup. In other words taking advantage of the power and authority the members of police force under the instigation of the said J. Ramkrishna tortured her both physically and mentally and violated basic fundamental and human rights of the petitioner.

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Under such background the petitioner filed Misc Case No.42 of 2020 being a petition of complaint under Section 156(3) of the Code of Criminal Procedure with a prayer directing the Officer-in-

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Charge, Aberdeem P.S to register a case under Section 376/493/506/509 against J. Ramkrishna and Sections 342/345/348/323/218/219/220/120B of the Indian Penal Code against Masuma Begum and Satvir Singh, both Sub-inspectors of Police attached to Pahargaon and Ograbraj P.S at the relevant point of time. The learned Chief Judicial Magistrate by his order dated 26^th November, 2020 passed an order directing the Station House Officer P.S Aberdeem to treat the application under Section 156(3) Cr.P.C to be an FIR and to start investigation into the matter in accordance with law.

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It is submitted by Mr. Kabir that in spite of specific order passed by the learned Chief Judicial Magistrate under Section 156(3) of the Code of Criminal Procedure police did not register any case against the accused persons till the date of hearing of the application. On the other hand, Superintendent of Police has filed a writ petition for quashing order dated 16^th November, 2020 passed by the learned Chief Judicial Magistrate in Misc Case No.42 of 2020 against the three persons of Police Officers subordinate to him.

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At the outset having heard the submission made by the learned Counsels for the parties it appears to this Court that Superintendent of Police filed two writ petitions under same facts and circumstances only to protect his brothers in uniform.

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Chapter 12 of the Code of Criminal Procedure contains the provisions regarding “information to the police and their powers to investigate”. Section 156 deals with Police Officer’s power to investigate cognizable case. Sub-section (3) of Section 156 states – “Any magistrate empowered under Section 190 may order such an investigation as above-mentioned.”

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Thus, for the purpose of enabling the police to start investigation, it is open for the magistrate to direct the police to register an FIR. There is nothing illegal in doing so. Even if a magistrate does not say in so many words while directing investigation under Section 156(3) that an FIR should be registered, it is the duty of the Officer-in-Charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant. In the instant case undisputedly police attached to Aberdeem P.S did not register any FIR on the basis of the order passed by the learned Chief Judicial Magistrate in Misc Case No.42 of 2020 on 16^th November, 2020. On the other hand, the Superintendent of Police whose primary duty is to protect law and order situation of the district came up with a writ petition praying for writ of certiorari to quash the order passed by the learned Chief Judicial Magistrate.

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This Court is of the firm opinion that the Superintendent of Police has no authority to challenge an order passed by the

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Judicial Magistrate of First Class in a writ proceeding. He is duty bound to carry out the judicial order passed by a Magistrate. The Superintendent of Police cannot raise any question as to legality and validity of the order passed by the learned Chief Judicial Magistrate. The Police Authority is under statutory obligation to register a case on the basis of the direction passed by the learned Magistrate on a petition filed by an aggrieved person disclosing cognizable offence and start investigation of the case. During investigation, it may so happen that the allegation made out in the complaint may be found to be baseless and false. In that case it is open for the Police Authority to submit final report on mistake of fact, but the Police Authority cannot deny registration of a case against the accused on the basis of the order passed under Section 156(3) of the Code of Criminal Procedure.

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On the above score, the writ petition filed by the Superintendent of Police, South Andaman is misconceived, not maintainable and filed purposefully not only to shield some Police Officers but also to suppress their corrupt and illegal acts.

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At the time of hearing a question of law was raised, viz, whether an application under Section 156(3) of the Code of Criminal Procedure can be treated as a petition of complaint or not. If such an application is treated to be a complaint, the aggrieved person has the statutory right to make a prayer for

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quashing such complaint to prevent abuse of the process of any Court or otherwise to secure the ends of justice under the provision of Section 482 of the Code. On the contrary, if an application under Section 156(3) of the Code cannot be treated as a complaint, no application under Section 482 of the Code is maintainable.

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Section 2(d) of the Code of Criminal Procedure defines complaint as hereunder:-

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“2(d) complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

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Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

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The Hon’ble Supreme Court in Devarapalli

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Lakshminarayanan Reddy & Ors. vs. V. Narayana Reddy & Ors.

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reported in AIR 1976 SC 1672 had the occasion to deal with the scope of section 156(3) and Section 190, 200 and 202 of the Code of Criminal Procedure. Paragraph 11 and 12 of the said report is relevant for our purpose and quoted below:

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“11. It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the

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facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

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This raises the incidental question: What is meant by "taking cognizance of an offence`' by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Section 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(l)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some

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other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.”

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The same principle was consistently taken by the Hon’ble Supreme Court in the subsequent decisions in Tula Ram & Ors. vs. Kishore Singh reported in AIR 1977 SC 2401 and in Vinubhai Haribhai Malaviya & Ors. vs. The State of Gujarat & Ors reported in AIR 2019 SC 5233 .

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In Vinubhai, Haribhai Malaviya (supra) it was observed by the Hon’ble Supreme Court that the Magistrate’s power under Section 156(3) of the Code is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a proper investigation takes place in the sense of a fair and just investigation by the police, which such Magistrate is to supervise-Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include ordering of further investigation after a report was received by him under Section 173(2) of the Code and which power would continue to ensure in such Magistrate at all stages of criminal proceedings until the trial itself commences.

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A three Judges Bench of the Bombay High Court in Criminal

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Writ Petition No.270 of 2009 : Mr. Panchabhai Popotbhai Butani & Ors vs. State of Maharashtra & Ors. was pleased to give reply to the question as to whether in absence of a complaint to the police, a complaint can be made directly before a Magistrate. The Bench answered the question in the following words:-

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“ Normally a person should invoke the provisions of Section 154 of the Code before he take recourse to the powers of the Magistrate competent to take cognizance under Section 190 of the Code, under Section 156(3). At least an intimation to the police of commission of a cognizable offence under Section 154(1) would be a condition precedent for invocation of powers of the Magistrate under Section 156(3) of the Code. We would hasten to add here that this dictum of law is not free from exception.

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There can be cases where non-compliance to the provisions of Section 154(3) would not divest the Magistrate of his jurisdiction in terms of Section 156(3). There could be cases where the police fail to act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampered with or an applicant could approach the Magistrate under Section 156(3) of the Code directly by way of an exception as the Legislature has vested wide discretion in the Magistrate.

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On the question as to whether filing a complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3), a complaint before a Magistrate was maintainable, the Bombay High Court observed that a petition under Section 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) of the Code and absence of a specific or improperly worded prayer or lack of complete and definite details would not prove fatal to a petition under Section 156(3), in so far as it states facts constituting ingredients of a cognizable offence. Such petition would be maintainable before the Magistrate.

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From the above discussion with reference to the judicial precedents I can safely conclude that an application under Section 156(3) is not a complaint within the meaning of Section 2(d) of the Code of Criminal Procedure. It is an application before the jurisdictional Magistrate for directing the police authority to treat the same as FIR. On such application the Magistrate cannot take cognizance of offence under Section 190 of the Code. The Magistrate is empowered to take cognizance under Section 190 of the Code - (a) upon receiving a complaint of facts which constitute such offence. (b) upon a police report of such facts. (c) upon information receipt from any person other than a Police Officer, or upon his own knowledge that such offence has been committed.

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In an application under Section 156(3) of the Code the learned Magistrate has no authority to take cognizance of any offence. The Magistrate is only empowered to direct the police authority to treat the same as FIR. Only when the FIR is lodged on the basis of such application and final report is filed in the form of charge-sheet disclosing cognizable offence against an accused, the Magistrate can take cognizance. Therefore, conjoint reading of Section 156 and Section 190 of the Code of Criminal Procedure clearly proves that an application under Section 156(3) is not a complaint within the meaning of Section 2(d) of the Code of Criminal Procedure. Thus, where there is no complaint registered against any of the Police Officer, how could the Superintendent of Police pray for quashing of an order passed by the learned Chief Judicial Magistrate in Misc Case No.42 of 2020 by filing writ petition No.9844 of 2020.

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An order under Section 156(3) is really in the nature of an interlocutory order. By passing such order criminal action ipso facto does not set in motion; only when the police registers a case on the basis of such application under Section 156(3) of the Code, criminal action initiates.

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For the reasons stated above an order passed by a Magistrate under Section 156(3) of the Code is absolutely interlocutory in nature. No revisional application lies against such

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interlocutory order. Therefore the CRR No.1678 of 2020 being devoid of any merit is liable to be rejected.

¶127

For the reasons stated above, this Court holds that WPA No.9844 of 2020, WPA No.9863 of 2020 and CRR No.1678 of 2020 are liable to be dismissed being devoid of any merit and accordingly WPA No.9844 of 2020 and WPA No.9863 are dismissed on contest, however without cost.

¶128

W.P.A 201 of 2021 (previously numbered as WPA No.2748 of 2021 at Principal Bench) is allowed on contest, however without cost.

¶129

The Station House Officer, P.S Aberdeem is directed to start specific case against the accused persons named in the application under Section 156(3) of the Code of Criminal Procedure immediately on receipt of this order.

¶130

Before I part with I shall be failing to discharge my duties if I do not make appropriate comment against the Superintendent of Police, South Andaman District, Port Blair. The Superintendent of Police whose role is to protect common people from the hands of the offenders are siding with them. He not only failed to discharge his duty by directing his subordinate officers to perform their duties in accordance with law, but also invoked the jurisdiction under Article 226 of the Constitution with a prayer to quash the order passed by the learned Chief Judicial Magistrate, Port Blair in

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Misc Case No.156(3) of the Code. He failed to discharge his duty and crossed the limit of his jurisdictional authority that he is under obligation to direct his subordinates to register a specific case on the application filed by Smt. Deepika Kishan when her application disclosed cognizable offence against J. Ramkrishna, Satvir Singh and Masuma Begum all Sub-Inspectors of Police. Conscious violation of order passed by the learned Chief Judicial Magistrate is per se contemptuous.

¶133

Therefore, the Chief Secretary, Andaman and Nicobar Islands is specifically directed to start departmental proceeding against the Superintendent of Police, South Andaman. In view of the specific act and omission committed by the Superintendent of Police South Andaman, the Chief Secretary shall seriously consider as to whether pending disciplinary proceeding against the Superintendent of Police, South Andaman, he should be allotted with any duty pertaining to criminal administration of justice or not.

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The Chief Secretary shall submit an action taken report within one month from the date of communication of this order.

¶135

(BIBEK CHAUDHURI, J.)

The Union Territory of a and N Islands v. Deepika Kishen and Ors.

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The Union Territory of a and N Islands v. Deepika Kishen and Ors.

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