High Court Division :
(Criminal Appellate Jurisdiction)
Syed Md Ziaul
Karim J
Ashish Ranjan Das J
Judgment
May 14th, 2014.
Rabeya Khatun ……………
…………….Informant-Appellant
vs
Dr Md Shahadat Hossain and another……… Respondents
Code of Criminal Procedure (V of 1898)
Sections 156 and 200
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Section l1(Kha)
Naraji Petition-Narajee is to be treated as fresh complaint, the Court; can take, cognizance of an offence if, in his, opinion, there is sufficient ground for proceedings and discharge the accused where no sufficient ground exists. .. …. (14)
Bhagwant Singh vs Commissioner of Police (1985) 2 SCC 537=AIR 1985 SC 1285; Union Public Service Commission vs Papaiah (1997 Cr LJ 4636 (SC)-Nurul Huq vs Fazal Ahamed, 48 DLR 327 and Nur Mohammad Mandal vs Abul Hossain, 28 DLR 389 ref:
No one appears:-Accused-Respondent Nos. 1-2.
Sakila Rowshan. DAG with Sharmina Haque, AAG and Md Showardhi, AAG-For the State-Respondent No. 3.
Judgment
Syed Md Ziaul Karim J: By this appeal, the informant-appellant has challenged the legality and propriety of the order dated 24-6-2003 passed by learned Judge-in-Charge of Nari-o-Shishu Nirjatan Daman Tribunal, Pabna (briefly as Tribunal) in Nari-o-Shishu Case No. 83 of 2003 accepting the Police report’ and discharging the accused-respondents from charge under section II(kha), of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (briefly as Ain, 2000).
2. Facts in brief, are that on 10-10-2002 the appellant as informant filed a complaint of complaint in the Court of Magistrate, First Class, Pabna; against her husband and father-in-law alleging that she was married with accused No. I and during their wedlock two children were born. Since marriage the accused used to demand Taka 10 lakh as dowry. On her refusal to pay the demanded dowry her greedy husband used to torture her and on 8-10-2002 both the accused conjointly mercilessly assaulted her. With these allegations the informant lodged the instant case which was recorded as Pabna ‘Police Station Case No. 28 dated 13-12-2002 corresponding to G.R No. 554 of 2002 under section II(kha), of the Ain, 2000 .
3. The Police after investigation submitted final report in favour of the accused with the recommendation for prosecuting the informant under section 17(1) of the Ain, 2000. Against the said report the informant filed naraji petition.
4. On receipt of the same the: learned Magistrate, refers the case before the Tribunal and after hearing the learned Judge accepted the police report and discharged the accused by rejecting the naraji petition.
5. Feeling aggrieved the informant preferred the instant appeal.
6. No one appears on behalf of the appellant to support the appeal. In view of the facts this is an old appeal of 2003, we are inclined to take it up for disposal on merit considering the materials on record.
7. No one appears on behalf of the accused respondent Nos. 1-2 to oppose the appeal.
8. The learned Deputy Attorney-General appearing for the State-respondent No.3 supports the appeal and submits that there sufficient grounds for proceedings against the accused respondents but the learned Judge without considering prima facie case against the accused most illegally discharged them causing miscarriage of justice.
9. In order to appreciate her submissions we have gone through the record and given our anxious consideration to her submissions.
10. On going to the materials on record, it transpires that after investigation of the case, the Police submitted final report, against which the informant filed Naraji petition. Afterwards the learned Magistrate referred the case record to the Tribunal. It is a matter of great regret that the Tribunal did not at all take any step regarding Naraji petition, which is not only non application of judicial mind but also a cause of injustice to the parties.
11. A three-Judge Bench of the Supreme Court of India in Bhagwant Singh vs Commissioner of Police (1985) 2 sec 537=AIR 1985 SE 1285 opined that while dealing with a final report submitted by the’ Police stating that no offence appears to have been committed, the Magistrate can adopt one of the three courses, i.e. (1) he may accept the report and drop the proceedings or (2) he may disagree with the report and taking the view that there is sufficient ground for proceedings further, take cognizance of the offence and issue process or (3) he may direct for further investigation to be made by the Police under sub-section 3 of section 156 of the Code of Criminal Procedure (briefly as Code). While adopting the first course (accepting the final report and dropping the proceedings), the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. In its ‘subsequent decision in Union Public Service Commission vs Papaiah (1997 CrLJ 4636 (SC), the Court, as per the law laid down in Bhagwant Singh’s case observed that the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is “must”.
12. It has been held in the case of Nurul Huq vs Fazal Ahamed reported in 4.8 DLR 327 that if an accused discharged from prosecution or on a final report that means that the accused has been discharged from custody not discharged from the case and subsequent prosecution of the accused is permissible. It was further held in the said case that Naraji petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a Naraji petition by complying with the requirements of the law.
13. In the instant case the Tribunal did not take any step regarding naraji petition: It has been held in the case of Nur Mohammad Mandal vs Abul Hossain and 3 others reported in 28 DLR 389 that the complainant is to be’ examined on oath under section 200 of the Code. We also hold that without examining the complainant on oath, as required under section 200 of the Code, it cannot be determined as to whether there is a prima
facie case against the accused-persons or not and without examining the complainant ‘as required under section 200 of the Code, the complaint petition cannot be thrown out.
14. By the above principle we find that the Naraji is to be treated as fresh complaint, the Court can take cognizance of an offence if, in his opinion, there is sufficient ground for proceedings 27 Cal. 985 (DB), and discharge the accused where no sufficient ground exists.
15. There can be said to be no sufficient grounds in the following cases for issue of process.
(a) Where the complaint is made on information and not an personal knowledge. In such cases the Court should satisfy itself on inquiry that there is a case for the issue of process [4 Crl LJ 217 (DB) Cal]
(b) Where the allegations made in the complaint are not substantiated by the statement on oath [AIR 1917 Cal. 671= 18 Crl LJ 626 (DB)].
(c) Where the allegations disclose a dispute purely or” a Civil nature AIR 1952 Pat. 200 + AIR 1923 All 544 + AIR 1927 Lah. 145.)
16. The following are not sufficient grounds for refusing issue of process.
(a) Where’ a prima facie case is, made out but in the Magistrate’s opinion there is no chance of conviction and no useful purpose will be served by the inquiry.
(b) Avoidance of religious ill feeling
l (c) The fact that the offence is cognizable by the Police in the first instance.
(d) The fact that the Magistrate thinks that it is unlikely that the proceeding will result in a conviction, though the fact that another person accused upon the same facts for the same offence has been acquitted may properly be taken into consideration in determination whether upon the materials before the Magistrate there is sufficient ground for proceedings.
(e) The fact that one of the accused was a member of the higher services in the land who was sworn to do justice.
17. The aforesaid general principles are squarely applicable in the cases instituted under the Special law i.e. the Ain 2000.
18. We also find that the above essential ingredients i.e. sufficient grounds for proceedings are absolutely present in the case in our hand.
19. It is pertinent to point out that the informant categorically narrated the manner of demanding dowry to her as well as the manner of assaulting her and the Police during investigation in its report merely stated that there is no eye witness to the occurrence. But the informant in his naraji petition categorically stated that the Police without visiting the place of occurrence without examining the eye witnesses most illegally submitted a perfunctory final report. We have meticulously examined the FIR, naraji petition, impugned order, Police report along with other materials on record and we find that there are sufficient grounds for proceeding against the accused in the instant case. Moreso it appears that the learned Judge of the Tribunal without appreciating the naraji petition and without any speaking order accepted the Police report and rejected the naraji petition.
So in our view the same cannot be sustained. Therefore, we hold that the appeal having merit succeeds.
20. In view of foregoing narrative the appeal is allowed. The impugned order dated 24-6-2003 passed by the learned Judge of the Tribunal in Nari-o-Shishu Case No. 83 of 2003 is hereby setaside. The learned Judge of the Tribunal is directed to dispose of the naraji petition filed by the informant in accordance with law and m the light of observations made above.
The Office is directed to send down the record at once.
(Criminal Appellate Jurisdiction)
Syed Md Ziaul
Karim J
Ashish Ranjan Das J
Judgment
May 14th, 2014.
Rabeya Khatun ……………
…………….Informant-Appellant
vs
Dr Md Shahadat Hossain and another……… Respondents
Code of Criminal Procedure (V of 1898)
Sections 156 and 200
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Section l1(Kha)
Naraji Petition-Narajee is to be treated as fresh complaint, the Court; can take, cognizance of an offence if, in his, opinion, there is sufficient ground for proceedings and discharge the accused where no sufficient ground exists. .. …. (14)
Bhagwant Singh vs Commissioner of Police (1985) 2 SCC 537=AIR 1985 SC 1285; Union Public Service Commission vs Papaiah (1997 Cr LJ 4636 (SC)-Nurul Huq vs Fazal Ahamed, 48 DLR 327 and Nur Mohammad Mandal vs Abul Hossain, 28 DLR 389 ref:
No one appears:-Accused-Respondent Nos. 1-2.
Sakila Rowshan. DAG with Sharmina Haque, AAG and Md Showardhi, AAG-For the State-Respondent No. 3.
Judgment
Syed Md Ziaul Karim J: By this appeal, the informant-appellant has challenged the legality and propriety of the order dated 24-6-2003 passed by learned Judge-in-Charge of Nari-o-Shishu Nirjatan Daman Tribunal, Pabna (briefly as Tribunal) in Nari-o-Shishu Case No. 83 of 2003 accepting the Police report’ and discharging the accused-respondents from charge under section II(kha), of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (briefly as Ain, 2000).
2. Facts in brief, are that on 10-10-2002 the appellant as informant filed a complaint of complaint in the Court of Magistrate, First Class, Pabna; against her husband and father-in-law alleging that she was married with accused No. I and during their wedlock two children were born. Since marriage the accused used to demand Taka 10 lakh as dowry. On her refusal to pay the demanded dowry her greedy husband used to torture her and on 8-10-2002 both the accused conjointly mercilessly assaulted her. With these allegations the informant lodged the instant case which was recorded as Pabna ‘Police Station Case No. 28 dated 13-12-2002 corresponding to G.R No. 554 of 2002 under section II(kha), of the Ain, 2000 .
3. The Police after investigation submitted final report in favour of the accused with the recommendation for prosecuting the informant under section 17(1) of the Ain, 2000. Against the said report the informant filed naraji petition.
4. On receipt of the same the: learned Magistrate, refers the case before the Tribunal and after hearing the learned Judge accepted the police report and discharged the accused by rejecting the naraji petition.
5. Feeling aggrieved the informant preferred the instant appeal.
6. No one appears on behalf of the appellant to support the appeal. In view of the facts this is an old appeal of 2003, we are inclined to take it up for disposal on merit considering the materials on record.
7. No one appears on behalf of the accused respondent Nos. 1-2 to oppose the appeal.
8. The learned Deputy Attorney-General appearing for the State-respondent No.3 supports the appeal and submits that there sufficient grounds for proceedings against the accused respondents but the learned Judge without considering prima facie case against the accused most illegally discharged them causing miscarriage of justice.
9. In order to appreciate her submissions we have gone through the record and given our anxious consideration to her submissions.
10. On going to the materials on record, it transpires that after investigation of the case, the Police submitted final report, against which the informant filed Naraji petition. Afterwards the learned Magistrate referred the case record to the Tribunal. It is a matter of great regret that the Tribunal did not at all take any step regarding Naraji petition, which is not only non application of judicial mind but also a cause of injustice to the parties.
11. A three-Judge Bench of the Supreme Court of India in Bhagwant Singh vs Commissioner of Police (1985) 2 sec 537=AIR 1985 SE 1285 opined that while dealing with a final report submitted by the’ Police stating that no offence appears to have been committed, the Magistrate can adopt one of the three courses, i.e. (1) he may accept the report and drop the proceedings or (2) he may disagree with the report and taking the view that there is sufficient ground for proceedings further, take cognizance of the offence and issue process or (3) he may direct for further investigation to be made by the Police under sub-section 3 of section 156 of the Code of Criminal Procedure (briefly as Code). While adopting the first course (accepting the final report and dropping the proceedings), the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. In its ‘subsequent decision in Union Public Service Commission vs Papaiah (1997 CrLJ 4636 (SC), the Court, as per the law laid down in Bhagwant Singh’s case observed that the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is “must”.
12. It has been held in the case of Nurul Huq vs Fazal Ahamed reported in 4.8 DLR 327 that if an accused discharged from prosecution or on a final report that means that the accused has been discharged from custody not discharged from the case and subsequent prosecution of the accused is permissible. It was further held in the said case that Naraji petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a Naraji petition by complying with the requirements of the law.
13. In the instant case the Tribunal did not take any step regarding naraji petition: It has been held in the case of Nur Mohammad Mandal vs Abul Hossain and 3 others reported in 28 DLR 389 that the complainant is to be’ examined on oath under section 200 of the Code. We also hold that without examining the complainant on oath, as required under section 200 of the Code, it cannot be determined as to whether there is a prima
facie case against the accused-persons or not and without examining the complainant ‘as required under section 200 of the Code, the complaint petition cannot be thrown out.
14. By the above principle we find that the Naraji is to be treated as fresh complaint, the Court can take cognizance of an offence if, in his opinion, there is sufficient ground for proceedings 27 Cal. 985 (DB), and discharge the accused where no sufficient ground exists.
15. There can be said to be no sufficient grounds in the following cases for issue of process.
(a) Where the complaint is made on information and not an personal knowledge. In such cases the Court should satisfy itself on inquiry that there is a case for the issue of process [4 Crl LJ 217 (DB) Cal]
(b) Where the allegations made in the complaint are not substantiated by the statement on oath [AIR 1917 Cal. 671= 18 Crl LJ 626 (DB)].
(c) Where the allegations disclose a dispute purely or” a Civil nature AIR 1952 Pat. 200 + AIR 1923 All 544 + AIR 1927 Lah. 145.)
16. The following are not sufficient grounds for refusing issue of process.
(a) Where’ a prima facie case is, made out but in the Magistrate’s opinion there is no chance of conviction and no useful purpose will be served by the inquiry.
(b) Avoidance of religious ill feeling
l (c) The fact that the offence is cognizable by the Police in the first instance.
(d) The fact that the Magistrate thinks that it is unlikely that the proceeding will result in a conviction, though the fact that another person accused upon the same facts for the same offence has been acquitted may properly be taken into consideration in determination whether upon the materials before the Magistrate there is sufficient ground for proceedings.
(e) The fact that one of the accused was a member of the higher services in the land who was sworn to do justice.
17. The aforesaid general principles are squarely applicable in the cases instituted under the Special law i.e. the Ain 2000.
18. We also find that the above essential ingredients i.e. sufficient grounds for proceedings are absolutely present in the case in our hand.
19. It is pertinent to point out that the informant categorically narrated the manner of demanding dowry to her as well as the manner of assaulting her and the Police during investigation in its report merely stated that there is no eye witness to the occurrence. But the informant in his naraji petition categorically stated that the Police without visiting the place of occurrence without examining the eye witnesses most illegally submitted a perfunctory final report. We have meticulously examined the FIR, naraji petition, impugned order, Police report along with other materials on record and we find that there are sufficient grounds for proceeding against the accused in the instant case. Moreso it appears that the learned Judge of the Tribunal without appreciating the naraji petition and without any speaking order accepted the Police report and rejected the naraji petition.
So in our view the same cannot be sustained. Therefore, we hold that the appeal having merit succeeds.
20. In view of foregoing narrative the appeal is allowed. The impugned order dated 24-6-2003 passed by the learned Judge of the Tribunal in Nari-o-Shishu Case No. 83 of 2003 is hereby setaside. The learned Judge of the Tribunal is directed to dispose of the naraji petition filed by the informant in accordance with law and m the light of observations made above.
The Office is directed to send down the record at once.
