Page No.# 1/11 GAHC010128732013 2025:GAU-AS:13572 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./80/2013 KUMUD ROY CHOUDHURY S/O LT. DHIRENDRA ROY CHOUDHURY R/O VILL- AMARABATI P.O. DUDHNOI, DIST. GOALPARA, ASSAM. VERSUS SMTI JOYSHREE RABHA W/O LT. SANTOSH RABHA R/O VILL- THEKACHU PART-III, P.S. DUDHNOI DIST. GOALPARA, ASSAM. BEFORE HON’BLE MR. JUSTICE N.UNNI KRISHNAN NAIR Advocate for the petitioner : Mr G Baishya. Advocate for the respondent : Ms S Dev. Date of Judgment : 22.09.2025 JUDGMENT AND ORDER (ORAL) (N.Unni Krishnan Nair, J.) Heard Mr G Baishya, learned counsel for the petitioner. Also heard Ms S Dev, learned counsel appearing for the respondent. 2. The petitioner, by instituting the present proceedings, has challenged the Page No.# 2/11 institution of the complaint case, being CR Case No. 1279/2019, before the Court of learned Judicial Magistrate First Class, Goalpara. 3. Facts in brief requisite for adjudication of the issue arising in the present proceeding is noticed as under: 3.1. As projected in the criminal petition, the petitioner was, at the relevant point of time, working as the Head Master of Dudhnoi High School. On receiving complaints from various employees of the school about non-performance of her duties by the respondent, herein, the petitioner had requested the respondent, herein, to attend her duties regularly and to perform her duties sincerely. There being no change in the attitude of the respondent towards discharge of her duties as an employee of the school, the matter was reported to the Inspector of Schools, Goalpara District Circle, Goalpara. Accordingly, the Inspector of Schools issued an order dated 02.03.2012, transferring the respondent and attaching her to a nearby school, i.e., Dudhnoi Girls High School, which was situated within the same campus of Dudhnoi High School. The said order was required to be served upon the respondent, herein, by the petitioner. However, in spite of the efforts being made, the said order could not be served upon the respondent. It is also projected that the respondent had refused to accept the said order. 3.2. The respondent, herein, filed a complaint case before the learned Chief Judicial Magistrate, Goalpara, alleging therein, of commission of an offence of kidnapping, criminal intimidation, attempt to murder upon her by the petitioner, herein. The said complaint was registered as CR Case No. 346/2012, and was forwarded to the Dudhnoi Police Station to register a case and to investigate Page No.# 3/11 thereon. On receipt of the said complaint, the Police registered Dudhnoi PS Case No. 31/2012 under Sections 366/307/506 IPC and investigated into the matter. After the said complaint case was registered against the petitioner, herein, it is projected in the criminal petition, that the respondent, herein, was suspended by issuance of an order of suspension dated 27.03.2012, issued by the jurisdictional Inspector of Schools. After issuance of the said suspension order, it is alleged that the respondent, herein, tried to assault and kill the petitioner, and due to resistance given by a few teachers, the intention of the respondent could not be fulfilled. However, it is projected that the petitioner, herein, suffered grievous cut injuries on his right thumb. The petitioner in pursuance to the said incident, lodged an FIR against the respondent on 28.03.2012 and the same was registered as Dudhnoi PS Case No. 30/2012, under Section 341/353/506/323 IPC. On conclusion of the investigation in Dudhnoi PS Case No. 30/2012, corresponding to GR Case No. 634/2012, a charge sheet came to be laid by the Police against the respondent herein, under Sections 341/353/506/323 IPC. At the relevant point of time also, the investigation in Dudhnoi PS Case No. 31/2012, corresponding to GR Case No. 635/2012, was also concluded and the Police laid the Final Report dated 30.04.2012, in the matter. In the said Final Report, it was stated that upon investigation, no witness had deposed anything against the petitioner, herein, and that the witnesses had stated that the respondent, herein, after receiving the transfer order had taken a grudge against the petitioner and filed the complaint against the petitioner, herein. No case was held to have been established against the petitioner, herein, in the said matter. The respondent, herein, on receiving notice appeared before the Judicial Magistrate First Class, Goalpara, on 12.09.2012, and filed an objection against the Final Report submitted in the matter by the Page No.# 4/11 Police. 3.3. The Judicial Magistrate First Class, upon receiving the said objection, proceeded to convert GR Case No. 635/2012, into a Complaint case and registered the same as CR No. 1279/2012. Thereafter, the learned trial Court upon taking the initial statement of the respondent on 16.10.2012, and without examining any further witnesses, proceeded to take cognizance of the case and issued summons to the petitioner, herein. Cognizance of the case was taken under Sections 249/354/506 IPC. 4. Being aggrieved, the petitioner has instituted the present proceedings. 5. At this stage, it is to be noted that the respondent, herein, also had approached this Court by way of instituting Criminal Petition No. 708/2013, against the charge sheet filed against her in GR Case No. 634/2012. It is to be noted that this Court had dismissed the criminal petition being Criminal Petition No. 708/2013, and thereby, vacated the stay of the proceedings before the Trial Court. It is stated at the Bar that that the proceedings are now continuing before the learned Trial Court. 6. Mr G Baishya, learned counsel for the petitioner, submits that the Final Report having been filed by the Police in GR Case No. 635/2012, the petitioner, herein, had submitted an objection, therein, on 12.09.2012. By referring to the objection, as submitted in the matter, by the respondent, herein, Mr Baishya has submitted that the same does not reveal commission of any offence by the petitioner, herein. He submits that the objection petition does not disclose the allegation of facts which could constitute an offence or offences and he further Page No.# 5/11 submits that it is only on such disclosure being made in the objection petition, that jurisdiction can be said to have been conferred upon the learned Trial Court, to take cognizance of the offence. 7. Mr Baishya has submitted that in the objection petition, as submitted by the respondent, herein, on 12.09.2012, there being no disclosure made, with regard to the allegations of fact, the learned Trial Court could not have taken cognizance thereof, and it was not permissible for the Court to register a Complaint Case by converting the pending GR Case, wherein the Police had filed its Final Report. 8. In support of his submissions, Mr Baishya relies on a decision of a coordinate Bench of this Court in the case of Moinul Hoque (Md) & Others – Vs- State of Assam & Another; reported in 2013 (4) GLT 1038. In the above premises, Mr Baishya submits that the complaint case as registered by the learned Trial Court, would mandate an interference from this Court. 9. Per contra, Ms S Dev, learned counsel for the respondent submits that the learned Trial Court, upon considering the materials coming on record, including the statements of the witnesses as recorded by the Investigating Officer in the connected GR Case, having found prima facie materials existing to infer commission of an offence in the matter, by the petitioner, herein, against the respondent, the learned Trial Court was within its jurisdiction to take cognizance of the same and accept the objection petition filed by the petitioner, against the Final Report submitted in the matter by the Police. She submits that the learned Trial Court had proceeded to reject the Final Report submitted in the matter, upon examination of the materials coming on record and had, thereafter, Page No.# 6/11 proceeded in the matter under Chapter XV of the Code of Criminal Procedure, 1973. The learned Trial Court, having directed for registration of a complaint case in the matter, CR Case No. 1279/2012, came to be registered in the matter and the learned Trial Court had proceeded with the same strictly, in accordance with law. She, in support of her submissions, relies upon the decision of the Hon’ble Supreme Court in the case of Mahesh Chand –vs- B. Jardhan Reddy & Others; reported in 2002 (8) Supreme 615. 10. I have heard the learned counsel for the appellant and also perused the materials available on record. 11. The respondent, herein, had instituted a complaint case before the Court of learned Chief Judicial Magistrate, Goalpara, on 20.03.2012, leveling allegations of commission of offence of kidnapping, criminal intimidation and attempt to murder etc. against the petitioner, herein. The said complaint case was registered as CR Case No. 346/2012. The learned Chief Judicial Magistrate, Goalpara, on considering the said complaint case was pleased to forward the same to the Dudhnoi Police Station to register a case and to investigate into the matter. Accordingly, Dudhnoi PS Case No. 31/2012, under Sections 366/307/506 IPC, came to be registered, and the petitioner, herein, was shown to be an accused, therein. The Police upon completion of the investigation in Dudhnoi PS Case No. 30/2012 (corresponding to GR Case No. 634/2012), submitted a Final Report, being Final Report No. 13/2012, dated 30.04.2012, and the allegations levelled by the respondent, herein, in the FIR lodged by her was held to be not established. Accordingly, the case was returned in Final Report. 12. On receiving notice of the submission of the said FR, the respondent, Page No.# 7/11 herein, appeared before the learned Trial Court and submitted an objection (Narazi Petition), on 12.09.2012. The Narazi Petition, as submitted by the respondent, herein, being relevant is extracted hereinbelow: “IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, GOALPARA CR No. 1279/12 Dudhnoi PS Case No. 31/12 State -Vs- Kumud Roy Choudhury The informant of the above noted case beg to state that Today the case is fixed for filing objection in respect of the above noted case although there are number of witness in support of my case, the investigating officer has filed the Final Report in the Court and hence, there is a possibility to suffer an irreparable loss in getting justice. So I request Your Honour kindly to consider my objection against the Final Report and to provide justice by staying the same. Sd/- Illegible 12.09.2012 Informant: Sri Joyshree Rabha.” 13. A perusal of the said Narazi Petition would go to show that the respondent, herein, had not disclosed any allegation of fact against the petitioner, herein with regard to commission by him of offence(s). Section 2 (d) Page No.# 8/11 of the Code of Criminal Procedure, 1973 defines a “complaint” to mean any allegation being made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. It is settled position of law that a Narazi Petition, viz., i.e., disapproval against the Final Report is submitted in a case investigated by Police. The First Information Report registered, pursuant to the forwarding of a complaint under Section 156(3) for investigation, can be treated as a complaint, only if the said satisfies the requirement in law, to constitute a complaint, as defined under Section 2 (d) CrPC. A perusal of the complaint petition as noticed hereinabove, does not disclose the particulars of any allegation of commission, by the petitioner, herein, of any offence/offences. Under such circumstances, it is to be seen, as to whether, the said Narazi Petition satisfies the requirement of Section 2 (d) of the Code of Criminal Procedure, 1973. 14. A coordinate Bench of this Court in the case of Moinul Hoque (supra), in this connection had drawn the following conclusions:- “9. In my opinion, the learned SDJM has improperly exercised his jurisdiction in passing the impugned order. A Magistrate, who, on receipt of a complaint, is empowered by Section 156(3) CrPC, to order a police investigation where he does not himself issue process at once. This power can be invoked by him even before he takes cognizance of the offence. If the police, after investigation, submitted a final report recommending discharge of the accused on the ground of insufficient evidence, the Magistrate is not bound to accept the final report, but after forming an opinion on the police report, which states that no case was made out against the accused, may nevertheless take cognizance even on such report if there are materials for taking cognizance of an offence. In other words, a Magistrate, even after accepting the FR, can still take cognizance of the offence upon a complaint or protest petition on the same or similar allegation of facts. Section 2(d), CrPC defines the term "complaint' to mean any allegation Page No.# 9/11 made orally or in writing to the Magistrate, with a view to taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The expression "protest petition" will thus come within the purview of the term "complaint" if it satisfies all the ingredients mentioned in Section 2(d) CrPC. 10. Therefore, it can now be taken to be the law that whenever a protest petition is treated as a complaint, the Magistrate will have to proceed in accordance with the procedure laid down in Sections 200, 202 and 204 CrPC. Section 190, however, sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of all allegations disclosing commission of a crime with a view to setting in motion to bring the offender to book. Therefore, where initially the complainant had filed a complaint before the Magistrate under Section 190(1)(a), but the Magistrate forwarded the complaint to the police under Section 156(3) for investigation, as in this case, and where the police after investigation return the case in FR on the ground of insufficient evidence, if the complaint nevertheless wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190((1)(a). If it were to be so, the protest petition so filed shall have to satisfy the requirement of a complaint as defined in Section 2(d) CrPC, and that the complaint should contain allegation of facts which constitute an offence or offences, upon which alone the Magistrate can take cognizance under Section 190(1)(a) CrPC. However, if the protest petition does not contain any allegation of facts which can constitute an offence or is without containing all those necessary particulars that a normal complaint has to contain, it cannot be treated a complaint for the purpose of proceeding under Section 200 CrPC. Having understood the correct legal position as I see it, it will now refer to the protest petition filed by the respondent No. 2 before the learned SDJM, which is as under: "Sir, The information (sic ) named above submits as under: (1) That the IO of the Rangiya P.S. has perfunctorily investigated the above case and without proper investigation and examination of the PW, the IO has submitted Final Report. The information (sic ) is accordingly aggrieved. (2) That I am willing to continue the case as a complaint one before this Hon'ble Court. I have other witnesses also. Page No.# 10/11 In view of the above, it is prayed that your honour would be pleased to take cognizance as per provisions of Cr.P.C." 11. Even a bare reading of the protest petition reproduced above will show that the statements made therein do not contain any allegation of facts which can be said to constitute any offence punishable under the law. What the respondent No. 2 said therein is to express her dissatisfaction with the manner in which investigation was carried on by the police, which resulted in the submission of the FR and that she wanted to continue the case as a complaint and had other witnesses. That is all. The first learned SDJM did not pass any order on this FR, but proceeded to register CR Case No. 1269c/2011 on the basis of the said protest petition and had examined the respondent No. 2 and four other witnesses and was said to have found a prima facie case under Section 143/436/427 IPC and committed the case before the learned Sessions Judge, Kamrup as Section 436 IPC is exclusively triable by the Court of Sessions. The learned Additional Sessions Judge (FTC), Kamrup, Rangia, before whom the case was ultimately made over, noticed that the learned SDJM did not pass any formal order on the said protest petition. He, therefore, remanded the case before the learned SDJM, Rangia, who ultimately passed the impugned order.” 15. A perusal of the said decision of the coordinate Bench of this Court would bring to the forefront that the sine qua non for taking cognizance of an offence is that the complaint in its complaint or protest petition must make an allegation of facts, which constitute an offence, as defined under Section 2 (d) CrPC. As noticed hereinabove, the protest petition dated 12.09.2012, submitted by the respondent, herein, does not contain any allegation of facts, perusal of which could have brought on record, commission of offence/offences as defined in Section 2 (d) of CrPC, by the petitioner, herein. 16. In view of the decision of this Hon’ble Court in Moinul Haque (supra), and for the reasons noticed hereinabove, this Court is of the considered view that basing on the said objection petition dated 12.09.2012, it was not Page No.# 11/11 permissible for Judicial Magistrate First Class, Goalpara, to take cognizance of the matter of offence against the petitioner, herein, and registered a complaint case thereon. 17. This Court has also perused the decision of Mahesh Chand (supra), relied upon by the learned counsel for the respondent, and on a close perusal of the same, this Court is of the considered view that the same would not advance the case of the respondent, herein. 18. In view of the conclusions reached by this Court hereinabove, this Court is of the considered view that the proceedings in CR Case No. 1279/2012, having been so instituted without jurisdiction, is not maintainable, and accordingly, the said proceedings stand set aside. 19. The instant Criminal Petition stands allowed. JUDGE Comparing Assistant