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Tripti Chatterjee vs State Of West Bengal & Anr on 10 April, 2019

Form No.J(1)

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction

Present:

The Hon’ble Justice Madhumati Mitra

C.R.R. 368 of 2017
With
C.R.A.N. 177 of 2019

Tripti Chatterjee

-Versus-

State of West Bengal Anr.

Advocate for the Petitioner : Mr. Achyut Basu
Mr. Arijit Majumder
Ms. Sonam Basu
Mr. Punam Basu

Advocate for the State : Mr. Rana Mukherjee
Ms. Debjani Sahu

Heard on : 26.03.2019

Judgment on : 10.04.2019

Madhumati Mitra, J. :

This is an application under Section 401/482 of the Code of Criminal

Procedure filed by the petitioner praying for an order to quash the proceeding
being C/283/2016 under Section 193 of the Indian Penal Code pending before

the Learned Judicial Magistrate, 2nd Court, Bolpur, Birbhum.

Brief facts which led to the filing of the present application are as under:-

On 03.06.2015 petitioner lodged an F.I.R with Bolpur Police Station to the

effect that the marriage of her niece was solemnised with one Debnath

Chakraborty son of Late Gopal Chakraborty of Adityapur Police Station, Bolpur

as per Hindu Rites and Ceremonies. At the time of marriage several articles were

given an dowry as per demand of the bride-groom family. After marriage the

niece of the petitioner started to reside at her matrimonial house with her

husband. It was alleged in the said F.I.R. that after one month of marriage victim

informed the petitioner that she was subjected to torture by her husband and

mother in law for demand of remaining dowry amount of Rs.25,000/-. After

getting the information of torture over phone the petitioner and her elder sister

visited the matrimonial home of her niece and requested the husband and

mother in law not to torture on the victim girl and gave assurance to them to pay

remaining dowry amount of Rs.25,000/-. On 02.06.2015 the husband of the

victim informed over phone that the victim was hospitalised due to her illness.

Petitioner visited the hospital and found the victim was lying dead. It was alleged

in the F.I.R. that the husband and the mother in law of the victim were

responsible for the death of the victim.
On the basis of the said F.I.R., Bolpur, Police Station, Case No.261/15

dated 03.06.2015 under Section 498A/304B/306/34 I.P.C. was started against

the husband and mother in law of the victim.

After completion of investigation charge sheet was submitted against both

the F.I.R. named accused persons. Thereafter the case was committed to the

Court of Sessions. Charge was framed against both the accused persons for

commission of alleged offences under Section 498A/304B/306 of the Indian

Penal Code. After holding trial Learned Additional Sessions Judge, Bolpur,

Birbhum, was pleased to hold that the prosecution case had not been proved

beyond doubt and as such Learned Trial Judge acquitted the accused by

extending benefit of doubt. Judgment of acquittal was delivered on 26.07.2016.

From order no.2 dated 13.07.2016 in S.C.No.47/2016 it appears that

Learned Trial Judge observed that the petitioner Smt. Tripti Chatterjee had

deposed as PW 1 and bluntly said she did not disclose truth in her written

information, though she admitted the contents of the written information when

she was confronted with her previous statement. It was also observed by the

Learned Trial Judge that the petitioner was responsible for the action of the

criminal administration of justice by which liberty of accused was curtailed for a

considerable period of time or she purposely gave false evidence and in either of

the case she had committed an offence with the meaning of Indian Penal Code.

Learned Trial Judge brought the entire episode to the notice of Learned
Additional Chief Judicial Magistrate, Bolpur, with a request to look into the

matter and to take necessary step according to law if she was found to have

committed the offence.

Thereafter the petitioner received a summon under Section 68 of the Code

of Criminal Procedure 1973 from the Learned Judicial Magistrate, Bolpur,

Birbhum, to answer charge under Section 193 of the Indian Penal Code.

Criminal proceeding being C.Case No.283 of 2016 pending before the Learned

Judicial Magistrate, 2nd Court, Bolpur, Birbhum, under Section 193 of the Indian

Penal Code has been assailed by the Learned Advocate for the petitioner on

various grounds.

First contention of the Learned Advocate appearing for the petitioner is that

the summons under Section 68 of the Code of Criminal Procedure i.e Annexure

‘P3’ was served upon the petitioner to answer in respect of the charge under

Section 193 of the Indian Penal Code without complying with the mandatory

provisions for holding an enquiry as mentioned in sub-Section (1) of Section 340

of the Code of Criminal Procedure. Attention of the Court has been invited to

Annexure-‘P3’ i.e the summons issued by the Learned Magistrate under Section

68 of the Code of Criminal Procedure on 19th July 2016 directing the petitioner to

answer to the charge under Section 193 of the Indian Penal without holding the

enquiry as required under sub-Section(1) of Section 340 of the Criminal

Procedure Code. Learned Advocate for the petitioner has further contended that
from the summons issued under Section 68 of the Code of Criminal Procedure, it

is very much clear that no enquiry as required under sub-Section (1) of Section

340 of the Code of Criminal Procedure was held either by the Learned Additional

Sessions Judge or by the Learned Magistrate before issuance of direction upon

the petitioner to answer to the charge of the alleged offence under Section 193 of

Indian Penal Code. Learned Advocate has further submitted that on 28.12.2016,

the Learned Magistrate, 2nd Court, Bolpur, Birbhum was pleased to frame charge

against the petitioner for commission of alleged offence under Section 193 of the

Indian Penal Code. The main plunk of his submission is that the initiation of

proceeding under Section 340 of the Code of Criminal Procedure has no legal

basis at all and is liable to be quashed.

Further contention of the Learned Advocate for the petitioner is that in

order to convict a person for an offence under Section 193 of the Indian Penal

Code, the prosecuting Court has to prove that the said person made a previous

statement on oath regarding the facts on which his statement was based and

then deny those facts earlier made on oath on a subsequent occasion on oath.

According to his contention both the previous statement and the subsequent

statement must be on oath and both the statements are opposed to each other

and they cannot stand together.

Another contention of the Learned Advocate for the petitioner is that the

petitioner being the near relative of the victim girl only set the law in motion by
reporting the unnatural death of her niece within four months of her marriage

and the factum of the unnatural death of the victim girl within four months of

her marriage was established during trial. Statements made in the F.I.R by the

petitioner were not statements on oath and as such she cannot be prosecuted for

the alleged offence of perjury as mentioned in Section 193 of the Indian Penal

Code. It is also the contention of the Learned Counsel for the petitioner that

mere fact that person has made contradictory statements in judicial proceeding

is not by itself sufficient to justify prosecution under Section 193 of the Indian

Penal Code.

In support of his submission Learned Advocate for the petitioner has

placed his reliance on several decisions. The decisions so cited at Bar are as

follows:

1) Ismail Khan-Appellant Vs. The State-Respondent reported in(1992)

CriLJ 3566: (1994)2 Crimes 801 (1991)4 KantLJ 262: (1993) 1 RCR

(Criminal)227;

2) Jose John, Petitioner Vs. K.C.Kuruvila, son of Chanda Pillai and others,

Respondents reported in 1996 CRI.L.J.1449 (Kerala High Court).

3) Amarsang Nathaji as himself and as Karta and Manager Vs. Hardik

Harshadbhai Patel and Others reported in AIR 2016 Supreme Court

5384.

4) Vittappan Appellant Vs. State, Respondent reported in 1987

Cri.L.J.1994.

5) Santokh Singh-Appellant Vs. Izhar Hussain and another-Respondent

(1973) 2 SCC 406.

Mr.Rana Mukherjee, Learned Additional Public Prosecutor appearing for

the State has conceded the factual aspects as narrated by the Learned Advocate

for the petitioner by stating that the statement of the petitioner was not recorded

during investigation under Section 164 Cr.P.C by the Magistrate. According to

his contention the petitioner reported the incident of unnatural death of his niece

within four months of her marriage. According to his contention police

investigated the case and on being satisfied police submitted charge sheet

against the accused. He has further contended that the statements made in the

F.I.R regarding giving of intimation of occurrence of a cognizable offence is not

substantive evidence and no conclusion can be drawn on the basis of the

statements made in the F.I.R. as such statements were not made on oath by the

petitioner.

I have gone through the materials placed on record as well the decisions so

cited at Bar. I have carefully considered the facts and circumstances of the

present case, the submissions made by Learned Counsel for the parties and the

decisions referred to on behalf of the petitioner.

Our Apex Court and different High Courts had the occasions to deal with

the offence of perjury and have laid down various principles relating to the
offence of perjury. Law relating to perjury and mode of taking action by the

Court on perjury are now well settled. Two conditions have to be fulfilled before

making a complaint against a person. First that person has given a false

evidence in a proceeding before the Court and secondly in the opinion of the

Court it is expedient in the interest of the justice to make an enquiry against

such a person in relation to the offence committed by him. Even though it is

desirable for the Court to hold the preliminary enquiry making a complaint, it is

not mandatory. The purpose of preliminary inquiry even if the Court opts to hold

it, is only to decide whether it is expedient in the interest of justice to enquire

into the offence whether appears to have committed. The power of holding

enquiry cannot be delegated by the judge to some other person. In the complaint

filed by Court specific finding regarding exact offence is essential. Mere fact that

a witness has made contradictory statements at two different stages in judicial

proceedings is not by itself always sufficient to justify a prosecution of perjury

under Section 193 of the Indian Penal Code.

Now I have to consider the prayer for quashing the proceeding for perjury

as prayed for by the petitioner in the light of the above mentioned established

principles of law along with the relevant provisions as contained in the Code of

Criminal Procedure.

Petitioner lodged an F.I.R. with police station regarding unnatural death of

her niece within four months of her marriage and it was alleged in the said F.I.R.
that her niece was subjected to physical torture by her husband and her mother

in law for demand of unpaid dowry of Rs.25,000/- (Rupees Twenty Five

Thousand). After investigation charge sheet was submitted against both the

F.I.R. named accused persons for commission of alleged offences punishable

under Section 498A/304B/306 of the Indian Penal Code. Both the accused

faced trial for commission of alleged offences under Section 498A/304B/306 of

the Indian Penal Code. Before conclusion of trial Learned Trial Judge vide order

no.2 (Later) dated 13.07.2016 in S.C.No.47/2016 brought to the notice of

Learned Additional Chief Judicial Magistrate, Bolpur, the entire episode of the

case with a direction to look into the matter.

The said order of the Learned Additional Sessions Judge is as under:

“SC No.47/16 GR No.541/15)

02(Later)
13.07.16:

Smt Tripti Chatterjee set the criminal administration of justice into
motion by informing police that her niece Baishakhi Nunia was married to
Debnath Chakraborty on 13th January, 2015 and as demanded by the accused
persons, a sum of Rs.50,000/- was paid and remaining Rs.25,000/- out of
Rs.75,000/- demanded, was due.

One month after marriage, Baishakhi was subjected to torture, both
physical and mental over the demand of said remaining Rs.25,000/- and on
02.06.2015 she died in the hospital.

On the basis of such information, Bolpur PS Case No.261/15 was
registered. After investigation Police submitted charge sheet under Sections-
498A/304B/34 of the IPC.

During investigation, the accused persons were in custody of police. From
the post mortem report, it appears that the victim died due to asphyxia from the
effect of hanging. It was an unnatural death within one year of marriage.

Debnath Chakraborty had to spend his days in custody from 20.07.2015
till 18.03.16.

Smt Tripti Chatterjee as PW 1 bluntly said she did not disclose truth in her
written information, though she admitted the content of the written information
when she confronted with her previous statement.

Therefore, it can safely be presumed that Smt Tripti Chatterjee was
responsible for the action of the criminal administration of justice by which
liberty of accused was curtailed for a considerable period of time,or she purposely
gave false evidence. In either of the case she has committed an offense within
the meaning of Indian Penal Code.

Under such circumstances, I am inclined to bring the entire episode to the
notice of Ld ACJM, Bolpur with a request to look into the matter and if it is found
that any offense has been committed by Smt Tripti Chatterjee, Ld ACJM shall
take necessary step according to Law.

Ld Judge-in-Charge, Copying Department is directed to instruct the office
to prepare certified copy of the FIR,deposition of Smt Tripti Chatterjee, so that Ld
ACJM can initiate action treating those documents as secondary one.

Let a copy of the ordersheet be sent to Ld ACJM, Bolpur, another copy be
sent to Judge-in-Charge, Copying Department.

Bench Clerk of this Court is directed to submit the document along with
copy of this order before the Ld ACJM, Bolpur under his seal and signature.”

From paragraph seven of the said order, it appears that before completion

of the trial, the Learned Trial Judge arrived at his conclusion that the petitioner

had purposely given false evidence and she was responsible for the custody of the

accused. Before delivery of the judgment on 26.07.2016, the Learned Trial Judge

on 13.07.2016 in his order observed that the petitioner had purposely given false

evidence which resulted in curtailment of liberty of the accused as they remained

in judicial custody for a considerable period. From the order dated 13.07.2016,

it appears that the Learned Trial Judge considered the statement made in the

written complaint as previous statement of the petitioner.

In this connection Learned Advocate appearing for the petitioner has cited

the decision in Vittappan, Appellant Vs. State, Respondent (Kerala High

Court) reported 1987 C.R.I.L.J. 1994 and vigorously argued that the first
information statement under Section 154 of the Code of Criminal Procedure is

not a statement on oath.

Learned Advocate has very forcefully contended that from the material on

record the direction for prosecution of the petitioner under Section 193 of the

Indian Penal Code is wholly unjustified. In support of his contention he has

placed his reliance on the following principle as enunciated in Vittappan,

Appellant Vs. State, Respondent (Kerala High Court) reported 1987 C.R.I.L.J.

1994 as under:-

“(A) – First information statement given by accused under S.154

alleged to be false – Held, falsity of such statement cannot be basis

of prosecution.

(B) – It is an enquiry by prosecuting court itself regarding offence

appeared to have been committed and in such enquiry court must

record finding regarding commission of offence – It is not an enquiry

for purpose of taking decision whether or not complaint has to be

filed.”

In his order dated 13.07.2016 the Learned Sessions Judge did not mention

anything specifically whether the falsify was in the first information report or in

the evidence of the petitioner i.e. P.W.no.1 given on oath. Learned Trial Judge

simply observed as under:-

“Smt. Tripti Chatterjee as P.W.1. bluntly said that she did not disclose

truth in the written information, though she admitted the content of the written

information when she was confronted with her previous statement.”

In this connection Learned Advocate for the petitioner has strongly

contended that from page 21 of the annexed document i.e the judgment passed

by the Learned Trial Judge it appears that prosecution did not examine her

under Section 154 of the Evidence Act.

Learned Advocate for the petitioner has forcefully contended that the

observation of the Learned Trial Judge is not at all sufficient to draw a

conclusion that the petitioner made wrong first information. Moreover, the

factum of unnatural death of the niece of the petitioner within one year of

marriage was reflected in the order dated 13.07.2016 of the Learned Trial Judge.

Learned Trial Judge failed to differentiate which portion of the previous

statement of written information was falsely made. Learned Advocate for the

petitioner has drawn the attention of Court to the fact that the Learned Judge

came to his conclusion regarding purposely giving false evidence by the petitioner

before delivery of judgment.

On 26.07.2016 Learned Trial Judge delivered the judgment with the

findings that the prosecution case had not been proved beyond doubt and the

Learned Trial Judge recorded the order of acquittal of the accused by extending

benefit of doubt. No such observation was made by the Learned Trial Judge
regarding alleged false evidence given by the petitioner i.e. P.W.no.1 during trial

in the said judgment.

In this connection I would like to refer a decision of our Hon’ble Apex Court

reported in Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and

Another (2005)4 SCC 370.

In paragraph 24 of the said judgment Hon’ble Apex Court was pleased to

observe that normally, a direction for filing of a complaint is not made during the

pendency of the proceeding before the Court and this is done at the stage where

the proceeding is concluded and the final judgment is rendered. Here the

Learned Trial Judge asked the Learned Magistrate to take action against the

petitioner before completion of trial in respect of which the petitioner was alleged

to have given false evidence. When an offence under Section 193 of the Indian

Penal Code is alleged to have been committed in relation to any proceedings

before the Court, the Court has to follow all the requirements under Section 340

of the Criminal Procedure Code regarding the formation of the opinion on the

expediency to initiate an inquiry into the alleged offence.

In the present case, Learned Trial Judge before delivery of judgment on

26.07.2016 in his order dated 13.07.2016 directed the Learned ACJM, Bolpur, to

take action against the petitioner after observing that she purposely gave false
evidence and she was responsible for the curtailment of liberty of the accused for

a considerable period.

In view of the language used in Section 340 of the Code of Criminal

Procedure, the Court is not bound to make a complaint regarding commission of

an offence referred to in Section 195(1)(b) of the Code of Criminal Procedure as

the section is considered by the words ‘Court is of opinion that it is expedient in

the interest of justice.’ This shows that such a course would be applied only if

the interest of justice so requires and not in every case. Before filing of the

complaint, the Court may hold a preliminary enquiry and record a finding to the

effect that it is expedient in the interest of justice that enquiry should be made

into the offence. In this connection Learned Advocate for the petitioner has

strongly submitted that in the present case no such observation was made by the

Learned Trial Judge while directing initiation of proceeding under Section 340 of

the Cr.P.C.

Before delving deep into the merit of the submission as made on behalf of

the petitioner, it would be better to consider the relevant provisions of the Code of

Criminal Procedure whether the prayer of the petitioner to quash the proceeding

under Section 193 of the Indian Penal Code initiated on the basis of the

complaint made by Learned Trial Judge can be entertained at this stage. In view

of the provisions of Section 341 of the Code of Criminal Procedure an order

passed under Section 340 of the Code of Criminal Procedure is an appealable
order. According to this section any person, on whose application any Court has

refused to make a complaint under Sub-Section(1) or (2) of Section 340 of the

Code of Criminal Procedure or against whom such a complaint has been made,

may appeal to the Court to which such former Court is subordinate.

The superior Court may, thereafter, after notice to the parties concerned,

direct the withdrawal of the complaint which the subordinate Court might have

made or itself make the complaint.

In the present case the petitioner did not prefer any appeal challenging the

order of making complaint against her by the Learned Additional Sessions Judge.

It reveals from the materials placed on record that she appeared before the

Learned Judicial Magistrate in response to the summons issued under Section

68 of the Code of Criminal Procedure to answer charge under Section 193 of the

Indian Penal Code and charge under Section 193 of the Indian Penal Code has

been framed against her.

Now the question comes whether the availability of alternative remedy by

way of an appeal, operates as a bar to entertain an application under Section 482

of the Code of Criminal Procedure. In this connection it would not be out of place

to mention a decision in Mohit @ Sonu and Another Vs. State of Uttar

Pradesh and Another reported in (2013) 7 Supreme Court Cases 789.

In paragraph 28 of the said judgment Hon’ble Apex Court has been pleased

to observe as under:

“So far as the inherent power of the High Court as contained in

Section 482 CrPC is concerned, the law in this regard is set at rest by

this Court in a catena of decisions. However, we would like to reiterate

that when an order, not interlocutory in nature, can be assailed in the

High Court in revisional jurisdiction, then there should be a bar in

invoking the inherent jurisdiction of the High Court. In other words,

inherent power of the Court can be exercised when there is no remedy

provided in the Code of Criminal Procedure for redressal of the

grievance. It is well settled that the inherent power of the Court can

ordinarily be exercised when there is no express provision in the Code

under which order impugned can be challenged.”

Again in paragraph 32 of the said judgment Hon’ble Apex Court has

further observed as under:

“The intention of the legislature enacting the Code of Criminal

Procedure and the Code of Civil Procedure vis-a-vis the law laid down

by this Court it can safely be concluded that when there is a specific

remedy provided by way of appeal or revision the inherent power under

Section 482 CrPC or Section 151 CPC cannot and should not be resorted

to.”

The petitioner in the instant case has failed to take recourse of Section 341

of the Code of Criminal Procedure. Moreover, in response to the summons

issued by the Learned Magistrate under Section 68 of the Code of Criminal

Procedure, she appeared before the Learned Magistrate without raising any

question regarding the legality or validity of the direction of Learned Trial Judge

for drawing up proceeding against her for giving false evidence.

From the contention of the Learned Advocate for the petitioner as well as

from the averments of the application under Section 482 of the Criminal

Procedure Code, it appears that charge under Section 193 of the Indian Penal

Code has already been framed against her. The only remedy open to a person

aggrieved by the compliant made under Section 340 of the Code of Criminal

Procedure is to prefer an appeal under Section 341 of the Code of Criminal

Procedure within the period prescribed by law and it is not permissible to call the

said complaint under Section 340 of the Criminal Procedure Code in question in

the course of the proceedings initiated on the basis of the complaint under

Section 340 of the Criminal Procedure Code. In the instant case, the stage to

challenge the legality and validity of the direction of the Learned trial Judge to

draw up proceeding under Section 340 of the Code of Criminal Procedure is over

and charge has already been framed.

The petitioner without challenging the order of initiation of complaint

against her by the Learned Additional Sessions Judge by way of preferring an
appeal has filed the present application under Section 482 of the Code of

Criminal Procedure to quash the proceedings. The prayer of the petitioner to

quash the proceeding being C/283/16 under Section 193 of the Indian Penal

Code pending before the Learned Judicial Magistrate, 2nd Court, Bolpur,

Birbhum, cannot be entertained due to existence specific provision in Section

341 of the Code of Criminal Procedure.

The application being CRR 368 of 2017 is dismissed accordingly.

Re: C.R.A.N. No.177 of 2019:-

In view of the order passed in CRR 368 of 2017, CRAN 177 of 2019

becomes infructuous and stands dismissed.

Urgent Photostat certified copy of this order, if applied for, shall be

supplied expeditiously after complying with all necessary legal formalities.

(Madhumati Mitra, J.)

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