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2001 DIGILAW 581 (CAL)

Saktipada Pahari v. State of West Bengal

2001-09-07

Pradip Kumar Biswas

body2001
JUDGMENT Pradip Kumar Biswas, J.: This is an application under section 482 of the Code of Criminal Procedure, filed by the petitioner Saktipada Pahari, seeking to quash the proceeding before the ld. Sub-Divisional Judicial Magistrate, Contai, as well as First Information Report of Contai Police Station Case No.98/99 dated 10.6.99 under section 376 of the Indian Penal Code (being G.R.Case No. 413 of 1999). The facts leading to the present revisional application may be summarized as follows:- That 10.5.99 one Satyabrata Pahari filed an application under section 156(3) of the Criminal Procedure Code before the S.D.J.M., Contai, aileging, inter alia, that on 6.5.99 his minor daughter Kabita Pahari aged about 9 years went to the house of the petitioner to see T.V. and at that time the present petitioner Saktipada Pahari was alone in his house. It was also alleged in the application that the present petitioner forcibly raped his minor daughter for which Kabita Pahari sustained injuries in her private parts and for which she had been admitted to the hospital at Contai where she was treated by the doctors. It was also alleged in the petition of complaint that the incident in question was narrated by the defacto complainant as also by his minor daughter to the witnesses and the under-garments of the victim have been washed away by water at the hospital. It was further alleged in the petition of complaint that about one and a half years back, the present petitioner also raped the minor daughter of the defacto complainant and the aforesaid incident being narrated to the villagers, there had been a village salish over the issue and at the salish the present petitioner assured the villagers that recurrence of such incident would never happen. 2. The aforesaid application under section 156 (3) being forwarded to the Police, Police took cognizance and started Contai P.s. Case No. 98/99 dated 10.6.97 under section 376 of the Indian Penal Code. 3. It was contended by the petitioner that he has been falsely implicated in this case out of enmity regarding the land with his next door neighbour, the defacto complainant of this case. 3. It was contended by the petitioner that he has been falsely implicated in this case out of enmity regarding the land with his next door neighbour, the defacto complainant of this case. It was also contended on behalf of the petitioner that some time back, the defacto complainant made also similar attempt to involve the present petitioner in a case under section 376 of I.P.C. alleging commission of rape on his minor daughter, Kabita and over this issue there has been a village salish and in the salish, after taking statements of the concerned persons the persons present in the salish came to the opinion that there has been no proof of rape and as such the present petitioner was set free by them. It was also alleged by the petitioner that if really there was any occurrence which took place some two or three years back, then why the defacto complainant again sent his daughter to the petitioner's house to see T.V. It was further alleged by the petitioner that as per the allegation of the defacto complainant, the occurrence took place on 6.5.99 at about 12 noon in the house of the present petitioner and his daughter was allegedly bleeding after the incident and inspite of that she was not admitted to the hospital on . that day nor she was examined on the same day by any doctor and she was only produced before the Medical Officer on 15.6.99. It was also found by the Medical Officer that there was no injury and also there was also no possibility of intercourse as alleged. 4. It has, therefore, been claimed by the petitioner that upon such material, the continuance of the present proceeding would be a gross abuse of the process of the Court and as such to prevent miscarriage of justice, the present criminal proceeding should be quashed. I have heard Sri Dilip Dutta, ld. counsel appearing for the petitioner and as also Mr. R.K. Ghosal appearing for the Opposite Party, State at length. I have heard Sri Dilip Dutta, ld. counsel appearing for the petitioner and as also Mr. R.K. Ghosal appearing for the Opposite Party, State at length. Sri Dilip Dutta, the learned senior counsel appearing for the petitioner, in course of his argument, has submitted before me that from the materials available, it is seen that in the instant case, the prosecution has collected two sets of statements, recorded under section 161 of Cr.P.C. by the I.O., wherefrom it is clearly seen that one set of evidence collected by the I.O. contradicts the other set of evidence as recorded by the I.O. and in a situation like this, when it has patently come out from the application under section 156(3) of the Criminal Procedure Code that there was previous enmity between the parties then it can certainly be presumed that the present case was made after utmost concoction and as such continuance of the present proceeding should be regarded as mere abuse of the process of Court and he has submitted further that this is a fit case where the Court should invoke its jurisdiction under section 482 of Cr.P.C. in quashing the present proceeding to prevent miscarriage of justice. 5. It has, however, been submitted by him that although it is quite settled principles of law that the court, while exercising jurisdiction under section 482 of the Criminal Procedure Code for quashing the proceeding, should not embark upon any enquiry as to the truthfulness or otherwise in the allegations made in the complaint petition or in the statements recorded under section 161 of the Cr.P.C., yet, for limited purpose, the court can sift the materials available before it and, therefore, when in this case, it is quite palpable that two sets of contradictory statements have been recorded by the I.O., there is hardly any necessity to allow the proceeding to be continued and specially taking into consideration, the previous enmity between the parties, the present proceeding should be quashed as otherwise it would be absolutely mere abuse of the process of the Court. 6. 6. Sri R. K. Ghosal, the learned counsel appearing on behalf of the State in opposing the contentions of Sri Dutta has submitted before me that at the stage of quashing of the First Information Report or complaint, in a criminal proceeding, mala fides or animus of complainant or prosecution is not at all relevant and at the stage of quashing the proceeding, the court is not also justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. He has further submitted that in a case of sexual assault, as 'in the present case, conviction can be founded on the sole testimony of the prosecutrix unless there are compelling reason for seeking corroboration. He has further submitted that in the present case, from the statements of the prosecutrix, recorded by the I.O., as also in the petition of complaint, there is sufficient materials to suggest, prima facie, that sexual assault has been committed upon her and as such it cannot be said to be a fit case for quashing the proceeding at the initial stage by invoking the jurisdiction under section 482 of the Criminal Procedure Code. He has further submitted that only at the stage of framing charge, the court is required to evaluate the materials and documents on record with a view to finding out if the facts emerging therefrom taken at their face value, disclose the existence of all the ingredients, constituting the alleged offence and only at that stage, the court may sift the evidence for this limitated purpose. Placing reliance on the decision, reported in 1999 Supreme Court Case (Cri) 150 (State of Maharashtra vs. Ishwar Piraji Kalpatri & Ors.) it has further been contended by him that this inherent power of the court can only be exercised in a rareest of rare cases without embarking upon any enquiry as to the probability, reliability or genuineness of the allegations made therein. Lastly, it has been contended by him that in the instant case, the petitioner could not, however, establish any cogent ground for invoking jurisdiction under section 482 of the Cr. P.C., for quashing the present proceeding and as such the prayer made by them should be rejected. 7. Lastly, it has been contended by him that in the instant case, the petitioner could not, however, establish any cogent ground for invoking jurisdiction under section 482 of the Cr. P.C., for quashing the present proceeding and as such the prayer made by them should be rejected. 7. It is quite settled position of law that for invoking jurisdiction under section 482 of the Criminal Procedure Code, the High Court must have to be satisfied first that prima facie there was an abuse of the process of court and only in such event, the High Court may pass necessary orders for quashing of a criminal proceeding to prevent the abuse of the process of the court and to meet the ends of justice. It is now also well settled position of law that the criminal proceeding against an accused person or F.I.R./ complaint can only be quashed at the initial stage, if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or substracting anything, if no offence is made out, then the High Court will be justified in quashing the proceeding in exercise of its power under section 482 of the Code of Criminal Procedure. 8. It has also become quite settled position of law that at the stage of quashing of the First Information Report or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. I am fortified to hold so in view of the decision reported in 1996 Supreme Court Cases (Cri) 150, cited by Sri Ghosal. So, even, if I find that there are two sets of evidences/statements collected by the I.O., in this case, that too will not help the petitioner at this stage in quashing the proceeding by exercising inherent jurisdiction of the Court under section 482 of the Criminal Procedure Code. So, even, if I find that there are two sets of evidences/statements collected by the I.O., in this case, that too will not help the petitioner at this stage in quashing the proceeding by exercising inherent jurisdiction of the Court under section 482 of the Criminal Procedure Code. That may be, however, of some help to them at the stage of framing charge when the Court has some authority to sift the evidence for limited purpose to evaluate the materials and documents on record with a view to finding out if the fact emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence or not. 9. Now, upon perusal of the materials available, in this case, and in view of my discussions, in the foregoing paragraphs, I am rather constrained to hold that this is not a fit case where High Court should interfere by invoking jurisdiction under section 482 of the Code of Criminal Procedure for quashing the proceeding pending before the Lower Court. Consequently, I hold that the present revisional application is devoid of any merit and substance, and as such it should be dismissed. 10. The revisional application is, thus, dismissed. Let a copy of this order be sent down to the court below for information and for necessary compliance with a direction to proceed with the case as expeditiously as possible, in accordance with law. Revisional application dismissed.