Gauhati High Court
Page No.# 1/9 vs The State Of Assam on 30 January, 2025
Page No.# 1/9
GAHC010011252019
2025:GAU-AS:1057
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./77/2019
SEFALI SUTRADHAR
W/O. PRASENJIT SUTRADHAR, VILL. NO. 2 JAMDAHA, P.O. GERUKABARI,
P.S. MANIKPUR, DIST. BONGAIGAON, ASSAM-783390.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. M I HUSSAIN,MS. P AHMED,MR.
A AHMED
Advocate for the Respondent : PP, ASSAM, MS. S JAHAN, P.P., ASSAM
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT
Date : 30-01-2025
1. Heard Mr. A Ahmed, learned counsel for the petitioner. Also heard
Mr. P Borthakur, learned Addl. PP, Assam.
2. The present application under section 482 Cr.P.C., read with
Article 227 of the Constitution of India is filed for quashing the
proceeding in CR Case No.112/2018 under section 211 IPC, pending in
Page No.# 2/9
the court of JMFC, Bongaigaon.
3. The brief fact leading to the filing of the present case is that the
sister-in-law of the petitioner filed a case against her husband on
21.03.2018, before the Manikpur PS which was registered as Manikpur PS
Case No.106/2018, under section 376/511/506/34 IPC. According to the
petitioner, such FIR was a false and fabricated one and the same was
lodged for the reason that here was a land dispute between the husband
of the petitioner and her brother-in-law.
4. Accordingly, being faced with such a false FIR alleging serious
offences of rape, the petitioner also filed a counter case against her
brother-in-law alleging rape which was registered as Manikpur PS case
No.107/2018 registered under 376/511/354B/34 IPC.
5. During the pendency of such investigation both the brothers
amicably resolved their dispute and they had decided to compromise the
matter and withdraw the allegations and counter allegations.
6. In view of such settlement, the investigating officer submitted a
Closure report numbered as FR No.80/2018 dated 27.04.2018 under
section 173 Cr.P.C in connection with Manikpur PS Case No.107/2018. On
such a final report being filed, a notice was sent to the petitioner for
submitting her objection, if any. Accordingly, the petitioner appeared
before the learned Addl. CJM, Bongaigaon on 30.11.2018 and filed
Petition No.217/2018 wherein, she had stated that she has no objection,
if the final report submitted by Investigating Officer is accepted.
7. The final report was accepted by the learned court, however,
taking note of the fact she had admitted the fact of filing a false FIR as
counter case, the learned magistrate decided to conduct an enquiry
under section 340 CrPC and the petitioner was released on executing a
PR bond of Rs.1,000/- directing the her to appear before the court on
Page No.# 3/9
01.12.2018.
8. Accordingly, the petitioner appeared before the learned Addl. CJM
Bongaigaon on 01.12.2008, and after appearing she asserted her earlier
statement. Thereafter the learned Addl. CJM Bongaigaon passed the
impugned order expressing its opinion that offences under section 211 is
made out and accordingly sent the matter to the learned CJM,
Bongaigaon with a request to consider the order dated 01.12.2018 as a
complaint and the petitioner was taken into custody.
9. Subsequently, the learned CJM treated the impugned order
1.12.2018 passed by the learned Addl. CJM, Bongaigaon as a complaint
and registered CR Case 118/2018 under section 211 IPC and transferred
the matter to the court of learned JMFC, Bongaigaon for trial. The
petitioner was released on bail by CJM, Bongaigaon under its order
1.12.2018.
10. Being aggrieved the present petition is filed.
11. Since the bone of contention is impugned order dated 1.12.2018
passed by the learned Addl. CJM, the same is reproduced herein below:
“IN THE COURT OF SMTI. LEENA DOLEY, ADDL.CJM, BONGAIGAON.
Manikpur PS Case No. 107/18 GR Case No. 321/18
01.12.18:-
The informant Smti. Shefali Sutradhar has appeared. Today the
date is fixed for inquiry under Section 340 Cr.P.C.
I have conducted the enquiry of this case by considering the
case record and have also heard the Addl.P.P.. and Asstt. P.P.
The question of enquiry was to ascertain whether the informant
has filed this complaint falsely against the accused namely Gobinda
Arjya and Sujit Arjya with false accusation knowing that there is no just
or lawful ground for such accusation with an intention to cause injury to
him.
In this case the informant Smti. Shefali Sutradhar filed an ejahar
in the Manikpur Police Station alleging that on 20.03.2018 at around
10.30 PM in the absence of her husband Sri Gobinda Arjya and Sujit
Arjya entered her residence and while she was asleep on her bed these
Page No.# 4/9two persons tried to commit rape on her and when she shouted for
help these two persons disrobed her made her half naked and later on
fled away from her home.
Accordingly, a case was registered as Bongaigaon P.S. Case No.
107/18 S/S 376/511/354B/34 IPC. During investigation, the statement
of the informant/victim was recorded U/S 164 Cr.P.C. by the Ld. SDJM
(S) Smti Juma Sinha, where the informant has admitted on oath that
her husband was alleged of committing rape of Anna Arjya and a
complaint was lodged against him where he was an accused and
therefore she has also filed a false case against husband of Anna Arjya
namely Gobind Arjya with false accusation.
I have also perused the case diary in this case and found that
the informant in her statement u/s 161 Cr.P.C. before the investigating
officer has also stated in the same manner as stated in her statement
U/S 164 Cr.P.C.
The investigating officer therefore finding no materials in this
case against the accused submitted final report. This Court thereafter
issued notice to the informant in order to know her opinion before
disposing the final report and accordingly the informant appeared on
30.11.18 and stated before this Court that she has falsely lodged the
complaint against the accused persons with false allegations only as a
counter case for the complaint lodged against her husband. At the time
of stating her opinion in the Court by the informant, Ld. Addl. PP. Smti.
Ranjana Rani Dutta, Ld. Assistant P.P., Smti. Rima Dutta, Bench
Assistant/FR Assistant Naren Sangma were present in the Court.
Now that the informant has admitted about lodging a false
complaint on oath in her statement U/S 164 Cr.P.C. and also before this
Court at the time of hearing. the informant while disposing the final
report on 30.11.2018 and after considering the materials in the case
record and the case diary, this Court is of the opinion that there is
prima facie sufficient materials for presuming that Smti. Sefali
Sutradhar has committed an offence punishable U/S 211 IPC and she is
liable to be tried under the aforesaid section. Smti Sefali Sutradhar is
taken into custody of this Court as an accused and the PSI, Bongaigaon
Court is directed to produce this accused before the Ld. CJM,
Bongaigaon immediately.
Forward a copy of this order to the Ld. CJM, Bongaigaon along
with copies of all the relevant documents and the copy of this order be
treated as a complaint
The witnesses in this case will be the Ld. Addl.PP. Smti. Ranjana
Page No.# 5/9
Rani Dutta, Ld. Assistant P.P. Smti. Rima Dutta, Bench Assistant/FR
Assistant Naren Sangma and Ld. SDJM(S) Smti Juma Sinha and shall
include the undersigned.
The enquiry concludes with this order”.
12. Mr. Ahmed, referring to the facts of the case, more particularly,
argues on the fact that admittedly the dispute was amongst the family
members i.e., two brothers and their wives. According to Mr. Ahmed,
learned counsel for the petitioner, admittedly the first FIR was lodged by
the sister-in-law alleging that the husband of the petitioner had
committed an offence under section 376 IPC and admittedly to counter
such false allegation, the petitioner lodged the FIR alleging similar thing
of rape upon her by her brother in law i.e, the husband of the informant
in the first case.
13. Mr. Ahmed, learned counsel submits that it was a family dispute
arising out of a land dispute and accordingly, they compromised the issue
amongst themselves and therefore, the petitioner honestly stated before
the IO as well as before the magistrate that she lodged the FIR falsely in
view of lodging of false case against her husband. Therefore, in the
aforesaid backdrop it cannot be said that the petitioner had committed
any offence under section 211 IPC.
14. Referring to the impugned order, Mr. Ahmed, learned counsel
submits that it is the mandate of section 340 Cr.P.C that the proceeding
under section 211 IPC cannot be initiated without a written complaint and
therefore, in the absence of a written complaint, the learned CJM could
not have initiated the proceeding treating a judicial order to be a
complaint and therefore on this count also, the impugned order is liable
to be set aside.
15. Mr. Borthakur learned Addl. PP in his usual fairness submits that
though the magistrate has rightly opined that the petitioner has
Page No.# 6/9
committed an offence under section 211 IPC, however, the procedure
adopted by the learned Magistrate may not be in conformity with the
prescription of law made under section 340 Cr.P.C.
16. I have given anxious consideration to the arguments advanced by
the learned counsel for the parties and perused the materials available on
record.
17. Chapter XIV of Cr.P.C deals with the conditions for the initiation of
certain proceedings. Section 195 Cr.P.C under Chapter XIV of the Code
deals with prosecution for contempt of the lawful authority of public
servants and offences against the public justice and also for offences
relating to documents given in evidence. The said section, more
particularly sub-clause (i) of Clause (b) of sub section (1) imposes a
condition that no court shall take cognizance of any offence punishable
under Section 193 to 196 IPC ( both inclusive), Section 199 IPC, 200 IPC,
205 to 211 IPC and 228 IPC, when such offence is alleged to have been
committed concerning any proceeding in any Court, except on a
complaint in writing of the court or by such officer of the Court as that
Court may authorize in writing in this behalf or of some other courts
subordinate to it on its behalf.
18. The Aforesaid provision of the law leaves no room for doubt that
cognizance of an offence u/s 211 IPC can be taken only on a complaint in
writing of the court (in the present case, the learned Addition CJM,
Bongaigaon) or by an officer of the said Court, if such direction is issued
by learned Addl. CJM.
19. Chapter XXVI of Cr.P.C deals with procedures relating to the
prosecution of offences affecting the administration of justice and Section
340 under this chapter is relevant for the purpose of determination of the
present Lis. Section 340 of the Cr. P. C. lays down the procedure which is
Page No.# 7/9
required to be followed when a complaint under Section 195(1)(b)Cr.P.C.,
is filed.
20. A reading of Section 340(1) Cr.P.C, it is clear that before making a
complainant, the court, before whom the proceeding is pending, must
form an opinion that it is expedient in the interest of justice that an
enquiry should be made into any offence referred in sub-section (1) of
Section 195 Cr. P.C. appears to have been committed, concerning a
proceeding of that court. After having such satisfaction/opinion, the court
may make a preliminary enquiry. During the preliminary enquiry, it can
record a finding to that effect, can make a complaint thereof in writing
and send it to a Magistrate of 1st class having jurisdiction etc. Thus,
Section 340 Cr.P.C is a guideline and procedural prescription for a court,
which desires to initiate a proceeding for the offences enumerated u/s
195 (1) Cr. P.C.
21. The Hon’ble Apex Court while dealing with an issue of adherence
to principles of natural justice while conducting an enquiry under Section
340 Cr.P.C, in the Pritish vs. the State of Maharastra and ors
(2001) 1 SCC 253 held that reading of the sub-section (1) makes it
clear that the hub of this provision is the formation of an opinion by the
court (before which proceedings were held) that it is expedient in the
interest of justice that an inquiry should be made into an offence, which
appears to have been committed.
22. It was also held in Pritish (supra) that to form such an opinion,
the court is empowered to hold a preliminary inquiry but it is not
peremptory that such a preliminary inquiry should be held. Even without
such preliminary inquiry, the court can form such an opinion, when it
appears to the court that an offence has been committed concerning a
proceeding in that court. It was further held that even when the court
Page No.# 8/9
forms such an opinion, the court doesn’t need to make a complaint. This
sub-section has conferred a power on the court to do so. It does not
mean that the court should, as a matter of course, make a complaint. But
once the court decides to do so, then the court should make a finding to
the effect that on the fact situation, it is expedient in the interest of
justice that the offence should further be probed into. If the court finds it
necessary to conduct a preliminary inquiry to reach such a finding, it is
always open to the court to do so, though the absence of any such
preliminary inquiry would not vitiate a finding reached by the court
regarding its opinion.
23. The Hon’ble Apex Court in Pritish (supra) clarified that the
preliminary inquiry contemplated is not for finding whether any particular
person is guilty or not and the purpose of the preliminary inquiry, even if
the court opts to conduct it, is only to decide whether it is expedient in
the interest of justice to inquire into the offence which appears to have
been committed. Such enquiry is a pre-trial enquiry
24. In the case in hand, the learned Magistrate thought had enquired
and decided that an offence under section 211 IPC is made out, however,
the mandate of law more particularly, under section 340 (I) Cr.P.C is that
such magistrate was to make a complaint thereof in writing has not been
followed.
25. Though complaint has been defined under section 2(d) of Cr.P.C to
mean any allegation made orally or in writing to a magistrate with a view
to his taking action under the Code etc, however,, the legislature in its
wisdom while prescribing provision under section 340(1) IPC, specifically
mandated that such complaint should be in writing and therefore, a
complaint in writing is sine-qua-non in this regard. To launch a
prosecution under section 211 IPC, the provision of Section 340 CrPC
Page No.# 9/9
should be strictly followed, when it is by the court before whom the
proceeding is pending. Therefore, a cognizance under Section 211 IPC
can be taken by a competent court only on a complaint in writing in
terms of section 340 (i) CrPC by itself or by an officer of the said court.
26. In the case in hand, the order of the Magistrate dated 01.12.2018
can be treated as the satisfaction arrived at by the said Magistrate as
required under law after enquiry. However, for the reasons recorded
herein above and by no stretch of the imagination, the said order can be
treated as a written complaint as required under Section 340(1) Cr.P.C.,
which prescribes a written complaint.
27. That being the position, this court has no hesitation to hold that
when the order dated 01.12.2018 cannot be treated as a Complaint, the
subsequent order of the Chief Judicial Magistrate, Bongaigaon
dtd.01.12.2018 treating such an order to be a Complaint and taking
cognizance under Section 211 IPC is not sustainable under law.
Accordingly, CR Case No.112/2018 is liable to be quashed being
registered without there being a written complaint as per the mandate of
Section 340(1) CrP.C.
28. Accordingly, the present revision petition stands allowed by setting
aside and quashing the proceeding in CR Case No.112/2018 under
section 211 IPC, pending in the court of JMFC, Bongaigaon. Bail bond
stands discharged.
JUDGE
Comparing Assistant
