R.B. Misra, J.
1. Heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. S. Ghosh, learned Counsel for the petitioner. Also heard Mr. A. Ghosh, learned Additional Public Prosecutor and Ms. S. Choudhury, learned Counsel for the respondents.
2. This is an application filed by the petitioner under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the Criminal proceeding in Case No. C.R. 62 of 2007 under Sections 166/323/506/448 of IPC and the order dated 2.4.2007 taking cognizance by learned Additional Chief Judicial Magistrate, West Tripura, Agartala in the said Criminal proceeding.
3. Ms. S. Choudhury, learned Counsel has appeared and submitted that though she has filed vakalatnama along with Mr. D. Guha, learned Counsel for the respondent No. 1, however she is not willing to assist the court today. She has only been instructed by Mr. Guha to pray for adjournment of the case. However, the Court specifically asked Ms. S. Choudhury to assist the Court for and on behalf of the respondent No. 1 by virtue of her being a counsel for the respondent No. 1 but she declined to render assistance to the Court as such does not wish to avail the opportunity of assisting the Court. It is indicated that on earlier occasion 22.6.2007 when this Court took up the matter for hearing, it was on the request of Ms. S. Choudhury, the case was to be listed for 27.6.2007. Accordingly, the case was ordered to be listed today for hearing. Today again, when the case is taken up for hearing, similar prayer is being made by Ms. Choudhury for adjournment which has vehemently been opposed by Mr. A.K. Bhowmik, learned senior counsel for the petitioner. In these circumstances, keeping in view the submission of Mr. A.K. Bhowmik, learned senior counsel for the petitioner that when the counsel for the complainant is not availing the opportunity to assist the court then the cause of justice is not frustrated, whereas, propriety requires that the case of the accused is to be adjudicated and decided after hearing learned Counsel for the accused. Mr. A. Ghosh, learned Additional Public Prosecutor is ready to render all possible assistance to the Court and is humbly praying to expedite and dispose of the case finally in the interest of justice.
4. The petitioner is an IAS Officer of the Manipur/Tripura Cadre (MT Cadre) and is presently deployed as Sub-Divisional Magistrate (in short 'SDM') in charge of Bishalgarh Sub-Division, West Tripura. Apart from his routine work of administration he is also assigned to discharge miscellaneous work by District Magistrate & Collector, West Tripura. The petitioner received a letter dated 31.8.2006 (Annexure-1 of the present Criminal Petition) from Additional District Magistrate & Collector, West Tripura enclosing a complaint dated 25.8.2006 addressed to District Magistrate & Collector by 3 (three) residents of Milanchakra, Arunchutingar, Agartala complaining illegalities and irregularities committed by Star Cable Network owned by Shri Hrishikesh Dey, the brother of the complainant Smt. Sipra Dey/Opposite-Party herein. The Additional District Magistrate & Collector, West Tripura by an another letter dated 8.9.2006 (Annexure-2) expected the petitioner to make an inquiry on the aforementioned subject in reference to complaint of residents of Milanchakra addressed to the Commissioner of Taxes conveyed to the District Magistrate And Collector. It appears that in reference to the inquiry, on the direction of the superior officer i.e. Additional District Magistrate & Collector, West Tripura, Agartala, the petitioner along with Shri Gautam Choudhury, Deputy Collector and Magistrate, Dukli Revenue Circle, Shri Suklal Acharjee, a staff of Dukli Revenue Circle and two Personal Guards namely, Shri Narayan Sana and Biswanath Das visited the Star Cable Network at Milanchakra on 26th September, 2006 and found that there were violations of the provisions of Cable TV Network (Regulations) Act, 1955 (in short called 'Act', 1955). On surprise inspection, Shri Hrishikesh Dey in stead of submitting any document of registration and other required statutory records pertaining to running the business, tried to assault the petitioner along with other miscreants and used criminal force to deter the petitioner & his team members from discharging their official duty. They misbehaved with the petitioner and other officials and kept them under wrongful confinement. The entire episode was conveyed by petitioner on 26.09.2006 to the District Magistrate & Collector, West Tripura, Agartala, who subsequently reported it on 27.9.2006 to the Superintendent of Police and in that respect West Agartala PS. Case No. 179 Under Sections 341/353/506/34 of IPC was registered on 28.9.2006 against Sri Hrishikesh Dey and others. After investigation, charge-sheet was submitted on 24.10.2006 (Annexure-4 to the criminal petition) against Shri Hrishikesh Dey as well as Sri Bijan Majumder, Sri Damodar Dey and Sri Kingsuk Chanda for their involvement in offences Under Sections 143/149/342/353/506 of IPC read with Sections 16/17 of 'Act, 1995'.
5. It appears that a large number of consumers and the public by their joint signatures have submitted three complaints, namely, one dated 8.12.2006 and two complaints dated 15.12.2006 for and on behalf of as many as ninety two consumers (Annexures 5,6 & 7 of the present Criminal Petition) against Hrishikesh Dey alleging that he has been collecting subscription at very high rate i.e. more than what is specified by the State Government and Shri Hrishikesh Dey has disconnected some connections for non payment of additional extra money over and above the prescribed rate. The State Government has fixed Rs. 150/- per month and normal fees of Rs. 10/- as tax for each cable connection, whereas, he was collecting more than Rs. 200/- per month per connection with extra and service charge without issuing receipts and vouchers to the consumers.
6. It also appears that in reference to above complaints petitioner with team members visited Milanchakra locality to make an inquiry on 7.3.2007. On that occasion Sri Hrishikesh Dey could not be contacted at the shop. One person claiming to be his brother met the petitioner and his team members who, however, did not furnish any information to the petitioner. It further appears that the petitioner received a letter dated 9.3.2007 from Sri Hirishikesh Dey making irrelevant allegations and also asking him to provide the name of the particular person to whom re-port and information was to be furnished. The copy of the letter dated 9.3.2007 of Sri Hirshikesh Dey to SDM, Bishalgarh is extracted below:
To The SDM, Bishalgarh,Tripura West.
Sir,
I beg to state that, I am the owner of Ramjee Cable Operator since last 11th November, 2006 A.D. On last 8th March, 20071 came to know on return to my residence that you had enquired about me on 7.3.2007 and as you did not find me, you expressed annoyance to my sister and brothers and ordered that cable connection on payment of Rs. 150/- should be given to some persons known to you within 48 hours.
But, it is a matter of great regret that my family members failed to tell me the names of the persons nominated by you.
It is, therefore, humbly prayed that if you are kind enough to send me the names of those persons to my address, I shall be ever grateful to you and on receipt of the copy of your writ-ten order I shall discuss the matter with the owners of other cable control rooms and shall be happy if I can comply with your order.
Yours faithfully Sd/-
Dated 9.3.2007 Sri Hrishikesh Dey
Milanchakra, West P.S.
West Tripura.
7. It also appears that a complaint dated 8.3.2007 (Annexure-9) was submitted to the District Magistrate & Collector, West Tripura, Agartala alleging that the petitioner has misbehaved with the family members of Sri Hrishikesh Dey. The letter dated 8.3.2007 of Sri Hrishikesh Dey to D.M. & Collector is extracted as below:
ToThe D.M. & Collector,West Tripura
Subject: Prayer for speedy justice.
Sir,
I beg to state that, I am Sri Hrishikesh Dey, proprietor of Ramjee Cable Operator recognized since last 11th November, 2006. On last 7.3.2007 Wednesday at about 6 P.M. Shri Brijesh Pandey, SDM of Bishalgarh along with his party came to my cable office situated in my house at Milanchakra without any intimation. At that time I was busy for a particular business at Udaipur. In the circumstances, I was not found in the office and then the SDM appeared before my sisters and younger brother Damodar Dey and abused my sisters with slang language and threatened them, the touched collar of shirt of Damodar Dey and slapped him in presence of all. As the sister protested, he abused them with slang language and also threatened them and went on saying that the customers who have been given cable line would have to be given connection on receipt of Rs. 150/- within 48 hours failing which they will face serious con-sequence. My elder sister requested him to furnish written order but at this he replied, 'I am not required to give any written order.' In this connection it may be mentioned here that the customers in favour of whom the SDM directed for cable connection had filed a written complaint in the Consumer Forum at Agartala on 15.10.2006 in Case No. CC71/06 and subsequently being unable to contest the case with-drew the same. A copy of the order of the said case is annexed hereto.
It may further be mentioned that for the first time SDM, Shri Brijesh Pandey had appeared in my Milanchakra house on 26.9.2006 and on that day in presence of women he forcibly damaged useful articles in the house and subsequently on 3.10.06 issued a show cause notice directing to submit reply to the notice within two days. The SDM did not stop here and he filed a false, fabricated case against me on 28.09.06 bearing No. West Agartala PS Case No. 179/06 Under Sections 341/ 353/506/34 IPC and 15/16 Cable T.V. Network (Regulation Act 1995). In the said case myself and other cable operators were arrested and subsequently were released on bail. In spite of all these incidents I submitted reply to the notice on due time in his office but his office re-fused to receive the reply and next moment I sent it through lawyer. On 25.02.2007 Deputy Collector & Magistrate, Dukli had come to my house and examined all my papers and prepared a report in my presence. It is a matter of surprise that even after expiry of long period, the SDM appeared at my house on 7.3.2007 and behaved with my sisters in uncourteous manner and assaulted my younger brother.
After the said incident my family members are in fear and have become apprehensive. So, it is humbly prayed that your honour would be pleased to make proper enquiry and take appropriate steps against the SDM for his afore-said activities and be pleased to provide security to my family and to save the humble family from the inhuman torture.
Yours faithfully,Sd/-Hrishikesh DeyS/O Late Rammuni DeyP.S. West AgartalaWest Tripura8.3.2007.
8. However, in that respect the complaint addressed to the District Magistrate & Collector was directed to be enquired into. The inquiry was entrusted to Deputy Superintendent of Police (Central), West Tripura. The Superintendent of Police (DIB), West Tripura vide his letter dated 16.3.2007 (Annexure-10) intimated the D.M. & Collector that after thorough enquiries and after collecting evidences and statements of witnesses of all the relevant persons it has been found that the allegations made by Sri Hrishikesh Dey and the complainant against the petitioner are false and motivated due to previous grudge con-sequent upon filing West Agartala P.S. Case No. 179 of 2006 lodged against Sri Hrishikesh Dey Under Sections 341/353/506/34 of IPC read with Section 16/17 of the 'Act 1995' where they were charge-sheeted and the case is pending for adjudication.
9. It further appears that after a long lapse of time on 16.3.2007 a complaint was filed before the Chief Judicial Magistrate, West Tripura, Agartala in reference to the episode of 26.9.2006 and 7.3.2007 and the statement of Smti. Sipra Dey was also recorded where she has stated that the petitioner in the colour of his office as S.D.M., Bishalgarh had entered into her house without any prior intimation. The testimony of the complainant Smti. Sipra Dey is extracted as below:
I am the complainant of this case. The accused in the colour of his office as SDM, Bishalgarh had entered into my house on 26.9.2006 without any prior intimation and asked me to provide documents relating to Cable business. Such cable business is conducted by my younger brother Sri Hrishikesh Dey, I myself and other family members are not related in any way regarding such cable business. I requested the accused to wait till my younger brother comes. But the accused person became violent and. forcibly entered into my house ransacked all valuable documents, uttered slang words rebuking the family members. When myself and my old mother tried to pacify him, the accused persons became more aggressive and pulled the cloth of mine. I somehow managed from the clutches of the accused, summoned another younger brother Damodar Dey who came and rescued me. My brother asked the accused to tell the reason of his acts but in reply the accused scolded him with nasty words. The accused also illegally entered into my house with-out permission. I have witnesses. I want justice.
10. According to Sri A.K. Bhowmik, learned Senior Advocate no complaint of any kind of FIR was lodged by Sri Hrishikesh Dey or the complainant Smti. Sipra Dey at relevant time in reference to the episode of 26.9.2006. Sri Hrishikesh Dey vide letter dated 9.3.2007 (Annexure-8) wrote to the petitioner indicating that not finding him during the visit on 7.3.2007 petitioner expressed annoyance on him/his sister and brother and further inquired to tell the name of person to whom the information relating to Cable T.V. business could be furnished. Nothing beyond this was alleged in this letter dated 9.3.2007 (Annexure-10 to the present Criminal Petition) to District Magistrate & Collector. Sri Hrishikesh Dey alleged that petitioner misbehaved with his sister discourteously and assaulted his younger brother and in this complaint dated 8.3.2007 to the petitioner reference of old episode dated 26.9.2006 was not mentioned but the complainant Smti. Sipra Dey in a spurious manner made allegations against the petitioner in his statement dated 2.4.2007 before the learned Additional Chief Judicial Magistrate in reference to the incidence of 26.9.2007. As per her statement dated 2.4.2007, the complainant was aware of the status of the petitioner, however, has not referred the incidence of 7.3.2007. For reasons best known to her, no explanation was indicated as to why she slept over the incidence of 26.9.2007 for about nine months. The narration of different versions have been revealing from the letter dated 9.3.2007 (Annexure-8) and (Annexure-9) of Sri Hrishikesh Dey to the petitioner and to the District Magistrate & Collector as well as from the statement dated 2.4.2007 of the complainant. In terms of the report dated 16.3.2007 (Annexure-10) of Superintendent of Police, West Tripura the complaint dated 7.3.2007 of Sri Hrishikesh Dey is false and motivated and the petitioner had visited on 7.3.2007 the shop and not the house of Sri Hrishikesh Dey. According to Shri Bhowmik, learned Senior Advocate the allegations against The petitioner is concerned, and both the statement Sri Hrishikesh Dey and Smti. Sipra Dey are full of doubts and contradiction mitigating their reliability.
11. According to Mr. A. Bhowmik, learned senior counsel for the petitioner, the learned Additional Chief Judicial Magistrate, West Tripura, Agartala has examined only the complainant on 2.4.2007. According to the complainant Smti. Sipra Dey in her deposition has stated that the petitioner i.e. Brijesh Pandey in the colour of his office as SDM has entered into her house on 29.6.2006 without any prior intimation and asked her to pro-vide document relating to cable business con-ducted by her younger brother Hrishikesh Dey. From this testimony alone it is very clear that the complainant/opposite-party/Smt. Sipra Dey was aware that Brijesh Pandey, the alleged accused was SDM, Bishalgarh.
12. According to Mr. A.K. Bhowmik, learned Counsel for the petitioner the said complaint has been lodged maliciously with an ulterior motive to take revenge of the personal grudge and out of vengeance and also to take revenge of criminal case being proceeded against the brother of the complainant in respect of his involvement in offences in running cable TV business against the provisions of law and the complaint is concocted and his highly belated one. Mr. Bhowmik has also submitted as below:
(i) The petitioner is an IAS Officer i.e. a very responsible Government servant and has gone to Hrishikesh Dey, the brother of the complainant for making inquiry in discharge of his official/Government duties. Therefore, no cognizance of any offence could have been taken against the petitioner without previous sanction of the State Government;
(ii) Learned Additional Chief Judicial Magistrate has failed to appreciate as could be noticed from the testimony of the complain-ant recorded Under Section 200 of Cr.P.C. that the petitioner/alleged accused had entered into premises for inquiry regarding business complaints in discharge of his official duties;
(iii) The accusations of the complainant relatable to only one incidence dated 29.6.2006 has been referred for the first time on 2.4.2007 without assigning any reason for coming forward after inordinate delay of about nine months;
(iv) The petitioner has visited on 29.6.2006 to the business premises of Hrishikesh Dey for inquiry and demanded production of documents relating to his running of cable business, however, since the business premises of Hrishikesh Dey is located at his residence, therefore, on the face of the record it is evident that the petitioner had visited the premises of the cable operator in discharge of his official duties;
(v) The complainant and her brother Hrishikesh Dey in collusion has concocted a case and has fabricated false allegations with a view to harass the petitioner for their previous grudge.
(vi) The brother of the complainant Hrishikesh Dey along with others since were charge-sheeted in reference to the complaint specifically made at the instance of the petitioner immediately after the incidence dated 26.9.2006 was over and the criminal case in that respect is pending since 28.9.2006 be-fore the trial court, however, despite knowledge of pendency of such criminal case against her brother and others, material information about such incidence were suppressed the complainant for the reasons best known to her did not make any mention in her com-plaint case about the pendency of such case;
(vii) In the letter dated 9.3.2007 of Hrishikesh Dey to SDM, Bishalgarh (i.e. to the petitioner) there was no mention about any allegation against the petitioner or in respect of incidence of 26.9.2006;
(viii) By the impugned order dated 4.2.2007 learned Additional Chief Judicial Magistrate has taken cognizance against the petitioner Under Sections 166/323/506/448 of IPC. Section 166 deals with public servant disobeying law, with intent to cause injury to any person; Section 323 deals with punishment for voluntarily causing hurt, Section 506 deals with punishment for criminal intimidation and Section 448 deals with punishment for house trespass. All these offences are non-cognizable and bailable except the offence indicated under Section 448 relating to the house trespass which is cognizable but bailable.
(ix) Learned Additional Chief Judicial Magistrate has failed to scrutinize properly the contents of the complaint, where the petitioner in discharge of his official duty, visited the business premises of the brother of the complainant, therefore, the same cannot be categorized as 'house trespass'.
13. Mr. A.K. Bhowmik, learned senior counsel for the petitioner has invited attention of this Court to the decision of the Supreme Court in (State of Haryana and Ors. v. Ch. Bhajan Lal and Ors.) whereby the Supreme Court has elaborated the scope of Article 226 as well as Section 482 of Cr.P.C. under which the Court has to invoke its power to prevent abuse of the process of any Court or otherwise to secure the ends of justice. For convenience the relevant paragraph is extracted below:
In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter-XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to given an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizance offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in supported of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
(Emphasis applied)
According to Mr. Bhowmik, since at the instance of petitioner, her brother was charge-sheeted with others earlier and criminal case is pending against them, therefore, the complainant, out of personal grudge and vengeance, has lodged the complaint maliciously and tried to implicate the petitioner in the case in question.
14. According to Mr. A.K. Bhowmik, learned senior counsel for the petitioner, the full facts and circumstances of the complaint case have not be taken into consideration by the concerned Learned Additional Chief Judicial Magistrate and the concerned Court has not made judicious exercise before issuing process. In the facts and circumstances of the present case, the action of the learned Additional Chief Judicial Magistrate was impressed by the private complaint as vendetta to harass the petitioner, needlessly, who while exercising his official government work had inspected the business premises of Hrishikesh Dey, therefore, issuance of process without taking all the relevant facts and circumstances is bad in law as such is to be set aside. In this respect Mr. Bhowmik has referred and re-lied upon the decision of the Supreme Court in (Punjab National Bank and Ors. v. Surendra Prasad Sinha). For convenience the relevant paragraph is extracted below:
It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta.
15. It has been submitted by Mr. Bhowmik, learned senior counsel for the petitioner that the concerned court has failed to scrutinize the evidence brought on record, more so. Learned Court itself did not put questions to the complainant and the witnesses to find out the truthfulness of the allegations. Learned Additional Chief Judicial Magistrate has not failed only to apply his mind properly to the facts of the case but has ignored settled law applicable thereto and has issued the process mechanically only on the basis of the sole testimony of the complainant Smti. Sipra Dey filed as vendetta to harass the petitioner for his acts bonafidely performed in discharge of his duties. In such circum-stances, according to Mr. Bhowmik, the impugned order of summoning the petitioner has to be quashed in view of the observations made by the Supreme Court in : Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. : For convenience the relevant paragraphs are extracted below:
It is settled that the High Court can exercise its power of judicial review in criminal matters. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see mat the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the pro-visions of Article 226.
Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the constitution.
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be sent into motion as a matter of course. It is not that the complainant has to bring only two wit-nesses to support his allegations in the com-plaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
16. Some relevant provisions of the Indian Penal Code are extracted below to know as to whether in the facts and circumstances, prima facie, the petitioner could have been charged for the offence Under Section 448 of IPC:
441. Criminal Trespass--Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,
or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence, or having lawfully entered into or upon such property, remains there with the intention of taking unauthorized possession or making unauthorized use of such property and fails to withdraw such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served on him, is said to have commit criminal trespass.
442. House trespass--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit 'house-trespass.
Explanation--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
443. Lurking house-trespass--Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit 'lurking house-trespass.
447. Punishment for criminal trespass--Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.
448. Punishment for house-trespass--Whoever commits house-trespass shall be punished with imprisonment of either description for a term which my extend to one year or with fine which may extend to one thousand rupees, or with both.
17. According to Mr. Bhowmik, learned Counsel for the petitioner learned Additional Chief Judicial Magistrate, West Tripura, Agartala in the impugned order dated 2.4.2007 while taking cognizance for summoning the petitioner on the sole testimony of the complainant/Smt. Sipra Dey/opposite-party herein has failed to appreciate that the petitioner in compliance to the directions of his superior officer i.e. Additional District Magistrate/District Magistrate has gone to make an inquiry to the business premises of the brother of the complainant in respect of public grievance of as many as 92 persons made regarding the misdeeds, irregularities, tax evasion activities of Hrishikesh Dey. The business premises of Hrishikesh Dey was, by chance, is also located in his residential premises. The petitioner had not gone for inquiry alone who however, was accompanied by team of Government officials. The business premises in question was not exclusively a dwelling house of Hrishikesh Dey or exclusively used for his residential purpose. Apart of the premises was undisputedly being used by him as the business premises. Therefore, the visit of the petitioner along with team of Government officials including senior officers cannot prima facie be understood to be termed as a 'house trespass.'
18. I have heard the learned Counsel for the parties and have gone through the materials as well as the evidences available on the records. It appears that the complainant in C.R. Case No. 62 of 2007 has mentioned the name of as many as 8 (eight) witnesses. However, only testimony of sole complainant Smti. Sipra Dey was recorded by learned Chief Judicial Magistrate on 2.4.2007. The sole testimony of the complainant was self contradictory and reveals that she was aware that the petitioner was SDM, Bjshalgarh and has come to make an enquiry to the business premises on 26.9.2006 which is located in the residential house other brother Hrishikesh Dey. The place where the petitioner has visited on 26.9.2006 along with large number of Government officials including senior officers was not exclusively the dwelling house of Hrishikesh Dey. On 26.4.2006 i.e. on the day of inquiry, hindrance in discharge of official duty of the petitioner and other team members was allegedly created by Sri Hrishikesh Dey and his associates. The petitioner and his colleagues were allegedly ill treated, misbehaved and kept in wrongful confinement, whereupon, the entire episode was conveyed to the District Magistrate & Collector, West Tripura, Agartala on 26.9.2006 and the FIR was lodged in that respect on 28.9.2006 and after detailed enquiry, charge-sheet was also submitted on 24.10.2006 against Sri Hrishikesh Dey, the brother of the complainant along with his other associates for their involvement in the offences Under Sections 143/149/342/353/506 of IPC read with Sections 16/17 of Cable T.V. Net-work (Regulation) Act, 1995 and the criminal case is pending for adjudication. It is also to be noted that Sri Hrishikesh Dey, the brother of the complainant in his letter dated 9.3.2007 addressed to the petitioner as SDM, Bishalgarh has not mentioned about any episode of 26.9.2006 as has been reflecting in the statements of complainant made on 2.4.2007, whereas, in the letter dated 8.3.2007 of Hrishikesh Dey to the District Magistrate & Collector, West Tripura, Agartala narration of the incidence of 26.9.2006 was referred for the reasons best known to him. It is very surprising that after long lapse of about 9 (nine) months of the incidence of 26.9.2006, the complaint case C.R.62 of 2007 has been preferred before learned Chief Judicial Magistrate. The facts and circumstances reveal that out of personal grudge and to take revenge of the pending criminal case against her brother, the present case C.R. 62 of 2007 has been preferred.
19. The petitioner had gone to make an inquiry in compliance to the direction and command of his superior officer, otherwise there was no occasion to go along with the team members and other superior officers to the business premises of the brother of the complainant. In the present facts and circumstances, such visit of the petitioner on 26.9.2006 for the purpose of making enquiry could never be treated as 'house trespass'. For taking cognizance and summoning the petitioner by the impugned order dated 2.4.2007, the learned Additional Chief Judicial Magistrate has neither applied his mind to the facts of the case nor has observed the guidelines provided by the Supreme Court in Pepsi Foods Ltd. (supra). Learned Additional Chief Judicial Magistrate has also failed to examine the nature of allegations made in the complaint and has also failed to analyze the evidence oral as well as the documentary in reference to the complaint. Necessary ingredients, were not emerging from the sole evidence and the testimony of the complainant and documentary evidences were lacking, as such, there was no material which could be sufficient for the complainant to succeed in bringing charge home to the petitioner. The learned Additional Chief Judicial Magistrate was not to act as a silent spectator at the time of recording of preliminary evidence, more specifically, while recording the testimony of the complainant i.e. Smti. Sipra Dey, Learned Additional Chief Judicial Magistrate was to carefully scrutinize the testimony of Smti. Sipra Dey and could have put questions to her and could have invited other seven witnesses to find out the truthfulness of the allegations which have been made against the petitioner, a sincere IAS Officer of State discharging his duties bonafidely; such serious allegations were also to be examined minutely in order to as-certain, if any, offence is prima facie committed by the petitioner before taking cognizance and issuing summons to the petitioner. I am of considered view that the C.R. Case No. 62 of 2007 presented by the complainant has not been presented with clean hands, as the full details have not only been furnished but fact of the pendency of the criminal case against her brother has been deliberately sup-pressed.
20. Therefore, in sequence to the observance of guidelines in consonance to the settled position of law, it is necessary that be-fore taking cognizance or issuance of summons in respect of the government official as an alleged accused in a complaint case, the concerned court has to consider the following aspects also:
(i) Whether the alleged accused/person to whom the process is issued is in respect of his discharging Government duties;
(ii) Whether the alleged official as an accused person was entrusted for discharging the work in reference to a directions or commands or orders of his superior officers or of any court or legal authority or Tribunal;
(iii) Whether the act for which cognizance is taken or summon is being issued is in respect of his work being per-formed for some inquiry/survey/inspection/cause/assessment/a fact-finding officer in the matters of complaints/allegations/reports/grievances/ applications etc.
(iv) Whether the act of such official against whom summon/process was being is-sued was performed is in the interest of maintenance of law and order?
(v) Whether there exists any material in past bout previous complaint/case/trial/verdict/decision, pending or adjudicated upon relatable to the alleged accused official and/or between the complainant.
(vi) Whether the complaint is said to be supported by various witnesses then whether maximum witnesses are scrutinized thoroughly and fairly. Whether intention/motive/tendency mens rea/the attitude of such alleged official reflecting from his acts for which the process is being issued has also to be analyzed thoroughly?
(vii) Whether previous antecedent and general reputation of the said alleged accused official against whom the process/summon is being issued or cognizance is proposed has been looked into?
(viii) Whether complaint, even if taken at its face value and accepted in its entirety, does prima facie constitute any offence or make out a case against such alleged accused official?
(ix) Whether uncontroverted allegations/complaints and the evidences/materials collected in support of the same are disclosing the commission of any offence and are sufficient to make out a case against such person?
(x) Whether allegations/complaints/assertions made therein are not absurd or apparently & inherently improbable and any prudent person can always reach a just conclusion that there is sufficient ground for proceeding against such person?
(xi) Whether before issuance or process/summon the concerned court has satisfied that the law casts liability, for creating offence against such alleged accused official/person against whom process and summon is being issued.
(xii) Whether the concerned court has circumspected and has judiciously exercised its discretion and applied his wisdom taking all the relevant facts and circumstances before issuing process/summon?
(xiii) Whether issuance of process or taking cognizance may not be an instrument in the hands of the private complaint as vendetta to harass the alleged accused official needlessly.
(xiv) Whether complaints/allegations are maliciously instituted with an ulterior motive for wreaking vengeance against such person with a view to spite him due to private and personal grudge?
(xv) Whether issuance of process or taking cognizance could not mean to wreak personal vengeance (while upholding the rule of law and maintenance of law and order in the society as the prime object of criminal justice) but it would not be the means to wreak personal vengeance?
(xvi) Whether the averments/contents of the complaints/allegations from any angle are reflecting to the abuse of process of law?
(xvii) Whether the Magistrate or the concerned court while summoning the alleged accused official has my applied his mind to the facts of the case and law applicable thereto?
(xviii) Whether concerned court/the concerned Magistrate has examined the nature of allegations made in the complaint and the evidence both oral and documentary in support of thereof?
(xix) Whether the concerned court/Magistrate has fully satisfied after examining all material aspects that in all probability the complainant may succeed in bringing charge home against the accused?
(xx) Whether the concerned court/Magistrate has not been observing and sit-ting as a silent spectator at the time of recording of preliminary evidence before summoning/issuance of process?
(xxi) Whether the concerned court/Magistrate has carefully scrutinized all the evidences, materials on record and has even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations and has also been satisfied after examination that prima facie offence is committed by such person?
(xxii) Whether the government official/per-son against whom the summon/process is proposed to be issued was not alone in performing such act then the concerned court/Magistrate has to so scrutinize the evidences and the materials on record in order to ascertain so that such one person is not being singled out in the facts and circum-stances.
21. After analyzing the facts and circum-stances also the testimony of the sole complainant as witness, I am of considered view that the present complaint and C.R. No. 62 of 2007 has been instituted after long lapse of nine months without satisfactory explanation, maliciously with ulterior motive for wreaking vengeance on the petitioner with a view to spite him due to private and personal grudge.
22. The learned Additional Chief Judicial Magistrate in defiance of the true facts, on insufficient materials and against the settled law has taken cognizance and intended to is-sue process by the impugned order dated 2.4.2007, whereby, the petitioner for his bona fidely dicharging official duties in making an inquiry in the interest of revenue as well as in the public interest is unnecessary going to be harassed. The other aspects of the matter including the issuance of process or taking cognizance against the government officials with-out previous sanction of State Government are not necessary to be dealt with when sufficient materials are available as indicated above to hold that the impugned order dated 2.4.2007 is legally not sustainable.
23. For the reasons and observations made above, the order dated 2.4.2007 passed by the learned Additional Chief Judicial Magistrate in C.R. No. 62 of 2007 being not legally sustainable is, therefore, set aside and present criminal petition of petitioner is al-lowed. No order as to costs.