Crl. Ptn. No. 373 of 2014 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK 24.08.2017 Heard Mr. Pronab Jyoti Saikia, learned counsel for the petitioner. 2) In spite of receipt of notice of the case, the sole opposite party/ complainant did not enter appearance in the case. Hence, the matter proceeded ex-parte against her. 3) This Criminal Petition is for quashing the order dated 11.09.2012 passed by learned Sub-Divisional Judicial Magistrate, Dibrugarh in Complaint Case being C.R. Case No. 305C/2012 taking cognizance of the offences under Sections 447/354/506 IPC against the petitioner and also for quashing the proceeding of said complaint case C.R. Case No. 305C/2012. 4) Brief facts of the case is that the opposite party herein as a complainant on 06.09.2012 filed a criminal complaint before the Court of learned Chief Judicial Magistrate, Dibrugarh against the petitioner alleging commission of offences under Sections 447/294/354/506 IPC, which was registered as C.R. Case No. 305C/2012. Learned CJM, Dibrugarh by his order dated 06.09.2012 itself transferred the said complaint case of the opposite party to the Court of learned Sub- Divisional Judicial Magistrate, Dibrugarh for favour of disposal. 5) In the said complaint the opposite party stated that the petitioner herein is serving as circle officer at Vijay Nagar, District Changlang, Arunachal Pradesh who has an old enmity with her and her family members and also stated that the petitioner in collusion with some others, conspired against her husband by leveling false allegations against him and demanded Rs.1,00,000/-. As her husband did not fulfill his demand, the petitioner managed to send him to jail and her husband was later released on bail by Court. In the said complaint, the complainant alleged that the petitioner on 25.08.2012 around 4:30 pm visited her residence at Mohanbari and in presence of her husband and neighbouring people, on the public Road, he Crl Ptn No.373of 2014 Page 1 of 6 used obscene and unparliamentary words towards her and when objections were raised, he also outraged her modesty by putting off her wearing apparels, however, with the help of her husband and neighbouring people she could protect her sanctity and seeing people assembled therein, the petitioner fled away with his associates. 6) The petitioner stated that since 23.07.2012 he served as Circle Officer in the Vijay Nagar Circle, Changlang District, Arunachal Pradesh and thereafter, from 27.08.2013 he served in the same capacity at Kharsang Circle, Changlang District and with effect from 12.03.2014 the petitioner is serving as Circle Officer at Wakka, Longding District of Arunachal Pradesh and by virtue of his office he is having the power of Judicial Magistrate, IInd Class and is discharging his duty and responsibility in the said capacity. Petitioner stated that he has not been served with any summons of said C.R. Case No. 305C/2012 from the Court of learned SDJM, Dibrugarh, but when he was informed by Superintendent of Police, Changlang that an Warrant of Arrest has been issued by the Court of said Magistrate at Dibrugarh, he enquired into the matter and came to know about it. The petitioner also submitted that allegation lodged against him in the said complaint pertaining to C.R. Case No. 305C/2012 is inherently improbable and with malice only to harass him for wrecking vendetta, as on the alleged date of the incident the petitioner was serving at MIAO, which is very far from Mohanbari, Dibrugarh. 7) The petitioner further contended that the Trial Magistrate committed illegality in taking cognizance of the offences under Sections 447/354/506 IPC against the petitioner on the basis of said complaint pertaining to C.R. Case No. 305C/2012 as the Magistrate failed to consider the material fact that previous enmity is the main reason of the opposite party to prefer said complaint case against him. 8) The petitioner has annexed the statement made by the complainant before the Magistrate under Section 200 Cr.P.C. and her two witnesses under Section 202 Cr.P.C. 9) It is seen that the complainant/opposite party in her statement under Section 200 Cr.P.C. submitted before the Magistrate that the incident occurred on Crl Ptn No.373of 2014 Page 2 of 6 25.08.2012 at around 4:30 pm, while she was inside the house. She stated that she was scolded in indecent language and she was pushed and pulled, for which she made hue and cry and then his husband and neighbours came there and saved her. She also stated that by the said act her modesty was outraged and her image in the society had been lowered. The complainant also stated that while she was at Vijay Nagar, Arunachal Pradesh, whereas the petitioner was also serving, he had an evil eye on her and slowly that led to his enmity with her. 10) In his statement before the Trial Magistrate recorded under Section 202 Cr.P.C., complainant’s witness, her son stated that on 25.08.2013 around 4:30 pm, the petitioner who is a resident of Vijay Nagar of Miao (Arunachal Pradesh) came and laid hand on his mother and also rebuked her with filthy language. He also stated that at that time he came out of house saw clothes of her mother was pulled and she was misbehaved and then his mother raised alarm, and seeing people gathered there, he left the place threatening his mother of the consequences. 11) The other witness of the complainant in his statement under Section 202 Cr.P.C. submitted before the Trial Magistrate that complainant is his tenant and on 25.08.2013 at around 4:00 pm, on hearing hue and cry, he came from the paddy field and saw that three persons are arguing with the complainant and she was subjected to push and pull, she was rebuked and was also threatened not to file the case and when the neighbouring people gathered therein, the petitioner along with other two people fled away. He also stated that people saw that petitioner laid his hand on the complainant for which the complainant was ashamed in front of the neighbours as her image had been lowered in the society. 12) Considering the above statements, the Trial Court by his order dated 11.09.2012 passed in C.R. Case No. 305C/2012 took cognizance of the offences under Sections 447/354/506 IPC against the petitioner and issued summons to him for his appearance in the case. The Trial Court in the said C.R. Case came to finding that the petitioner is aware regarding the said case against him and deliberately avoiding the service of summons upon him and therefore, by order dated 21.05.2013, learned Trial Court issued an order of Warrant of Arrest in said C.R. Case No. 305C/2012 against the petitioner for his appearance in the case. Crl Ptn No.373of 2014 Page 3 of 6 Later on 27.04.2014 the petitioner on 27.04.2014 remained absent in the said C.R. Case with steps by filing petition which was allowed by the learned Magistrate. 13) The petitioner also placed a document dated 26.05.2014 issued on behalf of the Additional Deputy Commissioner, Miao District, Changlang to show that he was very much present in the office of the Additional Deputy Commissioner, Miao from 10 am to 5 pm on 25.08.2012 and was engaged in Electoral revision and Land Branch works. 14) The Hon’ble Supreme Court in catena of decisions have settled that – Cognizance indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone and it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge and that cognizance is taken of cases and not of persons. Under Section 190 of the Cr.P.C., it is the application of judicial mind to the averments in the complaint that constitutes cognizance and if there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. 15) It is also settled by the Hon’ble Apex Court that – “In deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him.” 16) It is noticed by the Court that in the complaint as well as in her statement recorded under Section 200 Cr.P.C. and from the statement of the witness of the complainant made under Section 202 Cr.P.C. it is found that the petitioner is a government employee serving as Circle Officer of Arunachal Pradesh and was serving at Miao on the date of the alleged incident. This aspect of the matter has not been considered by the Trial Magistrate while taking cognizance in said C.R. Case No. 305C/2012. 17) It is also noticed by the Court that the complainant in her complaint as well as in her statement recorded under Section 200 Cr.P.C. stated about the existence of old enmity. But the version of enmity in her complaint in said C.R.