TaxTMI 
TaxTMI 
2015 (8) TMI 1520
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....ner, who is the sister-in-law of the opposite party No. 1 (for short OP1) and the OP1 appear to be literally following Polonius's advice to the hilt. Both the parties have unremittingly fought and are still fighting a bitter personal war and, the Courts - be it the Court of the Ld. Magistrate or the Courts higher in the hierarchy - have become the casualties. 4. During their bitter battle the parties have time and again approached the Courts at all levels to act - in view of their institutional position - as the umpire. Reams of paper and time immeasurable have been expended by Courts at all levels to resolve the animus between the parties. 5. It would be relevant with regard to the above discussion to notice the observations of the Ld. Chief Judicial Magistrate (for short CJM), Alipore who, in his order dated 12th July, 2011 was pleased to record as follows:-- "For the purpose of amicable settlement between the parties as per wish of the parties and parties lawyer this Court interviewed by asking both at chamber out of a social responsibility as allegation is compoundable one and on hearing both sides they both want three weeks or more time. For the interest of ....
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....his petition both the Ld. Counsel for the OP1 (the present petitioner) and the petitioner (the OP1 in the present CRR) (who is also an advocate) shook hands with each other and jointly submitted to this Court that they have forgotten and forgiven the entire incidents and further they have jointly prayed to this Court to dispose of the two petitions dt. 13.05.14 and 17.06.14 in view of their having compromised with each other and having forgotten the past events." 9. The Ld. 3rd Additional District and Sessions Court observed further as follows:-- "When the parties themselves have shook hands and forgiven each other then there is nothing left for this Court to adjudicate on the petitions dated 13.05.14 and 17.06.2014 and accordingly both are thus dismissed. To 15.09.14 for hearing of the main application." 10. Upon a reading of the order of the 3rd Additional District and Sessions Court dated 3rd July, 2014 (supra) any reasonable individual could have concluded that as adults the parties have really forgotten the disputes and forgiven each other. To the above extent the labours of the Ld. Courts bordering on the sentimental exude optimism. However, the subsequent cond....
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.... Court of the 8th J.M., Alipore in November middle 2012. 7. That Your petitioner was grilled by the Police Officer at the behest of the accused person on the basis of a ramshackle complaint, falsely and mischievously lodged by the accused person, without any rhyme or reason, but probably on the advice of her mentors. That the Police Enquiry revealed that the complainant/petitioner is not nick named as "Rantu" at the locale. This nick-name of the petitioner is known only to the accused person being a very close family member. Secondly, at the alleged place of occurrence some persons were examined by the police and it could be ascertained from them that at that relevant point of time no such incident was witnessed by them as alleged in the letter of complaint of the accused person. Last but not the least, the accused person was also requested by the police authorities to produce any witness in support of the incident but she declined. 8. That for all practical intents and purposes, the aforesaid complaint lodged by the accused person was not substantiated as per the evidence Act at all by the accused warranting Your petitioner to lodge a c....
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....rected issuance of process under Sections 203/511 IPC including issuance of summons. 15. Sri Dipak Sengupta, Ld. Senior Counsel appearing for the petitioner has elaborately argued that information was lodged by the petitioner disclosing facts to the police with regard to commission of a cognizable offence. Relying on the decision of the Hon'ble Apex Court in Lalita Kumari v. State of U.P. & Ors. reported in AIR 2014 SC 187, Sri Sengupta argues that it is the mandatory obligation of the police to record a FIR. According to Ld. Counsel, in view of paragraph 111 of Lalita Kumari (supra) the power of the police to hold a preliminary enquiry without recording a FIR stands excluded. 16. Sri Sengupta submits that till date no FIR has been recorded by the police on the complaint of the petitioner dated 26th September, 2012 thereby compelling her to bring the incident to the notice of the Commissioner of Police. 17. Sri Sengupta further argues that in the year 2012 a revisional application was filed by the petitioner in respect of a separate complaint lodged by the OP1 being C-630/2011 before the Ld. 8th JM, Alipore under Sections 504, 506 and 34 IPC. Such revisional applicatio....
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....enso. "Ref: Criminal Motion No. 465 of 2012 (27901) Re:-- The attached order sheet of Ld. A.D.J. 3rd Court Alipore dated 12.3.13 in the matter of Deva Prasad Ganguly........... The petitioner v. Smt. Arpita Mukherjee........... The Complainant. Sir, With due respect and most humble submission I, the undersigned beg to submit before gracious honour that an enquiry was made into the matter as referred above. Enquiry reveals that on 26.9.12 one Arpita Mukherjee ex-wife of Mr. Kunal Mukherjee & daughter of Prosanta Kr. Chatterjee presently residing at Flat No. 101, 153A Motilal Nehuru Road, Kolkata- 29 submitted a letter at this P.S. alleging on that day at around 7.05/07-10 hrs. One unknown youth of 20/22 year old tried to outrage her modesty and tried to snatch her neck chain or her way to drop her son for his school near Oncology Centre on Motilal Neheru Road. She also mentioned that someone called Rantu Babu was behind the incident. On examining the complainant it could be learnt that the complainant is a divorced woman and residing her paternal house with her ailing father and minor son and a long pen....
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....the E.O. and it could be learnt that the police enquiry could not be completed due to continuous non cooperation from the end of Smt. Arpita Kukherjee. The matter is still pending before the Ld. Court. The father in law of the petitioner could not be examined for his ill health. This is for favour of your Honours kind perusal. Submitted Sd/- Illegible, O/C Lake P.S. Kolkata-20.3.12" 21. Sri Dipak Sengupta, Ld. Senior Counsel argues that the Ld. 3rd Additional District and Sessions Court, Alipore could not have taken recourse to Section 91 CrPC to call for a police report to substantiate a separate and different incident which was not in the case before the Ld. Court since admittedly C-465/2012 and impugned proceedings being C-8509/2013 are distinct. Sri Sengupta further argues that the Ld. 3rd Additional District and Sessions Court, Alipore could not have taken recourse to Section 403 and Section 91 CrPC to call for a report from the police since no jurisdiction accrued upon the Ld. Revisionist Court under the above noted sections. 22. Sri Sengupta reiterates the primary contention on behalf of the petitioner that in the absence of a mandat....
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....ng C-8509/2013 along with the order dated 30th November, 2013 deserve to be set aside. 26. Sri Sengupta points out that against the report of the police filed before the Ld. 3rd Additional District and Sessions Court on 20th March, 2013 the petitioner has filed an objection. By order dated 4th April, 2013 the Ld. 3rd Additional District and Sessions Court was pleased to consider the written objection of the petitioner against the report of the police. It was noticed by the Ld. Court that the written objection has been served upon the OP1 before the Ld. Court. The Ld. 3rd Additional District and Sessions Court thereafter kept the written objection with the records to be considered at the time of final disposal of C-465/2012. 27. Sri Sengupta further argues relying on GHCL Employees Stock Option Trust v. India Info Line Ltd. reported in 2013 (4) SCC 505 that the Ld. 10th JM erroneously issued summons by the order impugned dated 30th November, 2013 without recording his satisfaction that a prima facie case was established against the present petitioner. Sri Sengupta argues that it is apparent from a bare reading of the provisions that since the complaint dated 26th September, 20....
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....harge, Lake Police Station to submit a report. 33. Sri Jana next submits that it will be obvious from the police report filed before the Ld. 8th JM, Alipore that the petitioner failed to adduce proper reasons for sending the caveats and also did not cooperate with the police. Taking this Court to the order of an Hon'ble Single Bench of this Court dated 27th August, 2012 in CRR 2910 of 2012 also filed by the present petitioner, Sri Jana submits that the Ld. Trial Court was directed not to take into consideration any of the observations made by the Ld. Trial Court or the Revisionist Court apart from the merits of the dispute between the parties. 34. Sri Jana submits that during the lifetime of the father of the petitioner, who is also the father-in-law of the OP1 and father of his wife, i.e. the elder sister of the petitioner, both the OP1 and his wife were restrained from visiting the father of the petitioner on the basis of a false affidavit produced by the petitioner to the effect that the father of the petitioner had no intention to be on visiting terms with either the OP1 or his wife. Sri Jana also points out that it is strange that at the hearing of C-465/2012 before ....
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.... be sustained. Under the law, according to Sri Jana, the police is permitted to make a preliminary enquiry as part of its investigative procedure and such enquiry can be called for by the Ld. Magistrate as considered appropriate. 39. Sri Amarta Ghose, Ld. Counsel appearing for the State submits that in the absence of any cooperation from the petitioner with the police to produce witnesses, the Ld. Court had to take recourse to come to a finding with regard to the facts in issue and therefore correctly directed the police to file a report. Sri Ghose argues that in spite of utter non-cooperation by the petitioner the police has placed a fair report before the Ld. Court and the Court will be required to draw its own conclusions. 40. Having heard the parties and considering the materials on record this Court notices that having regard to the interpretation of the provisions of Section 203 IPC, the argument of Sri Sengupta cannot be accepted. To the mind of this Court the word 'offence' has been defined in Section 40 of the IPC and an offence under Section 203 has been classified with other classes of offences in Chapter XI of the IPC. 41. Section 40 of the IPC reads as....