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1988 DIGILAW 379 (CAL)

MANU BHAI SOME CHAND VORA v. S. K. KAR

1988-09-21

MONORANJAN MALLICK

body1988
MONORANJAN MALLICK, J. ( 1 ) IN this writ petition, the petitioner who is an accused in the criminal case No. 1536 of 1984 pending before the Respondent No. 2 prays for a writ in the nature of Mandamus commanding the Respondents forthwith to forbear from proceeding of the above criminal proceeding and a writ in the nature of Prohibition prohibiting and restraining each one of them from proceeding in any manner whatsoever with the Criminal complaint No. 1536 of 1984. ( 2 ) BY a supplementary Affidavit, dated 17th March 1988 the petitioner prays for quashing the complaint case No. 1536 of 1984. It is complained that the Respondent No. 3 filed a false complaint firstly on 27th December 1982 against the petitioner alleging commission of offence under Sections 420/406/403 of the LP. C. Because of the absence of the complainant, the petitioner was discharged on 24th August, 1984. Thereafter on 27th October, 1984 the Respondent No. 3 filed another complaint against the petitioner being complaint case No. 1536 of 1984 on identical allegations. On 27th October, 1984 the Sub-Divisional Judicial Magistrate, Alipore took cognizance of the said complaint and issued summons and thereafter the said case was transferred to the Court of the 3rd Judicial Magistrate, Alipore. Subsequently to the institution of the said Criminal Case, the Respondent No. 3 also instituted a Civil Suit against the petitioner in the Court of the Learned 4th Subordinate Judge, Alipore praying, inter alia, for a decree of specific performance of the alleged agreement to sell the premises No. 31, Dr. Rajendra Road, Calcutta. The petitioner has, therefore, moved this writ petition on 27th July, 1987 and obtained an interim Order. Thereafter by filing a supplementary Affidavit, dated 17th March, 1988 the petitioner has alleged that on or about 6th January 1988 a Memorandum of Agreement was entered into between the petitioner and one Ratilal Sakarchand Shah in which said Ratilal Sakarchand Shah admitted that the Respondent No. 3 was his Benamdar and through the said Benamdar, he entered into the said alleged agreement with the petitioner for the purchase of the said premises No. 31, Dr. Rajendra Road, Calcutta, that said Ratilal Sakarchand Shah also stated that by a Deed of Disclaimer, dated 8th May, 1986 the Respondent No. 3 admitted that he was a mere name lender in respect of the alleged agreement for sale, that said Ratilal Sakarchand Shah admitted that at his instance and instruction and on his behalf the Respondent No. 3 filed both the Civil Suit bearing No. T-60 of 1985 and the Criminal Case being No. C-1536 of 1984, and by the said Memorandum of Agreement the said Ratilal Sakarchand Shah agreed to appoint one Babulal Churilal Vora as Arbitrator to resolve the disputes between him and the petitioner and to withdraw both the Civil Suit and the Criminal Complaint, that the Respondent No. 3 also executed an agreement, dated 7th January 1988 whereby the Respondent No. 3 admitted and agreed that since all the disputes have been amicably settled, the said Respondent No. 3 shall withdraw the said Civil and Criminal Case and that the aforesaid agreement would. show that the Criminal Case instituted against the petitioner was entirely of civil nature, and that the Criminal Complaint Case being No. C-1536 of 1984 is vexatious and is an abuse of process of Court and should, therefore, be quashed. ( 3 ) THE Respondent No. 3 has contested both the applications. It is contended that the allegations contained in both the writ petition as well as in the supplementary Affidavit are all false that the petition of complaint filed by the Respondent No. 3 contained sufficient ingredients for the learned Magistrate to take cognizance and to issue process against the present writ petitioner, that he never entered into an agreement to withdraw the said criminal proceeding or the Civil Suit, that the contention of the petitioner is that the complaint case raised a dispute in civil nature is not a correct contention, that the writ petitioner filed this writ petition at a. very later stage when after the Learned Magistrate had already examined Respondent No. 3 and his witnesses before charge and at about the stage when the Learned Magistrate was to decide whether he would frame the charge against the petitioner or not and that for quashing a original proceeding the petitioner ought not to have filed a writ petition and should have moved proper application under the Code of Criminal Procedure. ( 4 ) AT the time of hearing it is also urged by the Learned Advocate for the Respondent No. 3 that the petitioner ought not to have filed this writ petition before the Original Side of the High Court. ( 5 ) I would first consider the question as to whether the writ petitioner was justified in filing the petition before the Original Side of this High Court. There is no doubt that under the Rules of the High Court a party can file a writ petition before the Original Side of the High Court, Calcutta if all the Respondents are residents within the jurisdiction of the Original Side of High Court, Calcutta. But in this case only the State of West Bengal represented by the Secretary, Judicial Department has its Office within the jurisdiction of this High Court. However, under the provision of the Article 226 (1a) of the Constitution of India, a party can file a writ petition in High Court at Calcutta and the Rules framed by the High Court, even though should be followed does not override the provision of the. Constitution contained in Article 226 (1a) of the Constitution of India. However the application should have been filed in the Appellate Side of Calcutta High Court. But when the same has been filed in the Original Side and the learned Judge presiding over the Original Side has entertainers the jurisdiction and issued the necessary directions to file Affidavits to the parties, there being no inherent lack of jurisdiction of this Court to dispose of this writ petition, I am not inclined to dismiss the writ petition on the ground of want of jurisdiction. ( 6 ) THE writ petitioner prays for quashing a criminal proceeding in its writ jurisdiction. On behalf of the Respondent No. 3 it is contended that the Writ Court should not entertain such an application and the petitioner ought to have the criminal jurisdiction of the High Court under Section 482 of the Cr. P. C. for quashing a Criminal Proceeding. ( 7 ) ON behalf of the writ petitioner, two decisions of the Supreme Court reported in AIR 1985 S. C. 472 Ram Shankar Puri v. State of U. P, and AIR 1975 S. C. 495 have been cited. P. C. for quashing a Criminal Proceeding. ( 7 ) ON behalf of the writ petitioner, two decisions of the Supreme Court reported in AIR 1985 S. C. 472 Ram Shankar Puri v. State of U. P, and AIR 1975 S. C. 495 have been cited. It is contended that the Writ Court can exercise jurisdiction to quash an Order passed by the Criminal Court if the Criminal Court exercised this jurisdiction illegally and the criminal proceeding initiated against the petitioner nothing but abuse of process of Court. ( 8 ) I am of the view that even though the Writ Court can entertain a jurisdiction to quash a criminal proceeding yet, when adequate alternative remedy is there, it is a question of propriety as to whether the Writ Court should exercise such jurisdiction to quash a criminal proceeding when the petitioner could move the criminal jurisdiction of this Court to obtain the same relief. ( 9 ) ON behalf of the petitioner it is contended that in this writ petition, he has alleged mala fide and by filing a supplementary Affidavit has alleged some new grounds to quash the criminal proceeding which he cannot do in an application under Section 482 of the Cr. P. C. for quashing a proceeding. ( 10 ) THE agreement referred to in the supplementary Affidavit has been seriously contested by the Respondent No. 3 and is not an admitted position. Therefore, it is difficult for the Writ Court to quash a criminal proceeding only on the basis of the supplementary Affidavit that there was a subsequent agreement between the parties by which the Respondent No. 3 agreed to withdraw the criminal proceeding. Moreover, in this case, the petitioner of complaint was filed sometime in 1984. Three years thereafter the writ petitioner moved this writ petition. It is submitted on behalf of the Respondent No. 3 that the Learned Magistrate has already recorded the evidence of the witnesses before charge. So the criminal proceeding has come to a particular stage in which on the basis of the evidence on record it is for the Magistrate to decide as to whether there is a prima facie case against the petitioner to frame a charge against him. So the criminal proceeding has come to a particular stage in which on the basis of the evidence on record it is for the Magistrate to decide as to whether there is a prima facie case against the petitioner to frame a charge against him. Whether such evidence discloses any criminal offence or only discloses a dispute of civil nature is a matter for determination by the Learned Magistrate at this stage and the present petitioner can very well urge such point before the Learned Magistrate. Even if the Learned Magistrate refuses to entertain such plea and frames charge against him the petitioner has his remedy to move in criminal revision against such an Order. ( 11 ) IN my view, when the evidence have already been recorded be-fore charge, it will not be justified by the Writ Court to consider the petition of complaint alone to decide m to whether such complaint discloses any criminal offence or not. The fact that a Civil Suit has been filed subsequent to the filing of the complaint does not on the face of it show that the dispute is of civil nature in respect of transaction entered into between the parties. A party may incur criminal liability over and above the civil liability in respect of any particular transactions. Therefore, only because subsequent to the filing of the petition of complaint a Suit for specific performance has been filed cannot automatically render a criminal complaint false or mala fide. Therefore, when the criminal case proceeded to the stage when the Learned Magistrate has to decide whether he would frame charge or not on the basis of the evidence before charge, it will not serve the ends of justice to quash such a criminal proceeding. This will have the effect of interfering with the course of justice which this Writ Court in its discretion should not do. ( 12 ) IN the result, I am of the view that the criminal proceeding initiated ;against the petitioner should not be quashed at this stage. The writ petition and the supplementary Affidavit and present application be, therefore, dismissed. All interim Orders passed therein are vacated. The Learned Magistrate is directed to dispose of the criminal case as expeditiously as possible and not later than three months from the date of communication of this Order. The writ petition and the supplementary Affidavit and present application be, therefore, dismissed. All interim Orders passed therein are vacated. The Learned Magistrate is directed to dispose of the criminal case as expeditiously as possible and not later than three months from the date of communication of this Order. ( 13 ) ALL parties shall act on, the signed copy of the operative portion of the judgment. Petition dismissed.