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2001 DIGILAW 733 (CAL)

RAJESH MUKHERJEE v. STATE

2001-12-07

P.K.BISWAS

body2001
P. K. BISWAS, J. ( 1 ) SINCE these connected matters arose out of the same set of facts and a common case, I am disposing them of by one Judgment. ( 2 ) THIS is an application under section 482 of the Code of Criminal Procedure filed by the petitioners namely, Rajesh Mukherjee, Amar Chand Mukherjee and Krishna Mukherjee seeking to quash the proceeding of Panduah P. S. Case No. 194 of 1993 dated 10. 9. 93 under sections 376/306 of the Indian Penal Code (G. R. Case No. 1124 of 1993) pending before the learned Sub-Divisional Judicial Magistrate, Hooghly Sadar. ( 3 ) THE facts leading to the present revisional application may be summarised as follows :-panduah P. S. Case No. 194 of 1993 dated 10. 9. 93 was registered for investigation on the basis of a complaint lodged by one Tamal Ghosh of Khannyan, P. S. Panduah, District Hooghly, with the Officer-in-Charge of Panduah P. S. , alleging inter alia, commission of an offence punishable under sections 376/306 of the Indian Penal Code. It was alleged in the petition of complaint that the defacto complainant namely, Madhabi Ghosh used to work as a maid servant in the house of the petitioner for the last six years. Madhabi was aged about 17 years and used to stay in the house of the petitioners. ( 4 ) ON 9. 9. 93 at about 1. 00 hrs, in the night the defacto complainant received an information that Madhabi consumed poison and had been admitted to Panduah Hospital and on receipt of such information they rushed to the hospital where the defacto complainant found his daughter, who was then pregnant, had died. ( 5 ) FURTHER allegation was levelled by the complainant that during Madhabi's stay in the house of the petitioners, the petitioner Rajesh Mukherjee allured her to have an affair with him on the promise of marrying her and as a result of which she became pregnant, but that issue was aborted at the, instance of Rajesh Mukherjee. ( 6 ) MADHABI again became pregnant and she refused to have an abortion and Rajesh refused to marry her. Thereafter, Madhabi brought the matter within the knowledge of other petitioners and at that time she was provoked by them to commit suicide. ( 6 ) MADHABI again became pregnant and she refused to have an abortion and Rajesh refused to marry her. Thereafter, Madhabi brought the matter within the knowledge of other petitioners and at that time she was provoked by them to commit suicide. ( 7 ) IT has been alleged by the petitioners that petitioner Rajesh against whom the focus of allegation of rape circles around has been posted at Chengmari Tea Garden in the district of Jalpaiguri since 24. 5. 93 as an employee of Dyanamar Support Systems and as such the allegations of rape levelled against him is quite false and untenable and it would be crystal clear from the Post Mortem Report that hymen of the victim was in tact clearly nullifying the prosecution story that there were rape on several occassions, causing repeated pregnancy of the victim. ( 8 ) IT has, therefore, been claimed by the petitioners that upon such materials, the continuation of the present proceeding would be a gross abuse of the process of the Court and as such to prevent the miscarriage of justice, present criminal proceedings should be quashed. ( 9 ) I have heard Sri Milan Mukherjee, the learned counsel appearing for the petitioner as also Ms. Alokananda Bose appearing for the Opposite Party, State, at length. Ms. Bose has also produced the Case Diary as directed to be produced by this Court earlier. Perused also the materials in the Case Diary. ( 10 ) SRI Mukherjee, the learned counsel for the petitioners in course of his argument has submitted before me that from the materials available, specially, from the Post Mortem Report, it has transpired clearly that no external or internal injury was found by the Autopsy Surgeon and no pregnancy was also detected and allegation of rape and torture could not also be established and as such there is no reason to proceed with this case even under section 306 of IPC for which the charge-sheet has been submitted in connection with this case and according to him this is a fit case where the Court should invoke its jurisdiction under section 482 of the Cr. PC in quashing the present proceeding to prevent miscarriage of justice. PC in quashing the present proceeding to prevent miscarriage of justice. ( 11 ) IT has further been submitted by him that the charge-sheet has been submitted in this case against all the accused petitioners under section 306 of IPC and under that section if any person commits suicide, the person who abates the commission of suicide should be liable to be punished with imprisonment with either description for a term which may extend to 10 years and fine. ( 12 ) HE has further submitted that the 'abatement' as defined by section 107 comprises (i) instigation to do that thing which is an offence (ii) engaging in any conspiracy for the doing of that thing and (iii) intentionally aiding by any act or illegal omission the doing of that thing. Section 108 defines an abettor as a person who abets an offence or the commission of an act which would be an offence. He has further submitted that the word 'instigate' in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc. But, here in this case the allegation is that the accused parties were instigating the victim to commit suicide, but since the genesis of the prosecution case, alleging commission of rape, has not been established on post mortem examination, the allegation of instigation or abating for committing suicide clearly goes, and, therefore, it will be a mere abuse of the process of the Court to proceed with this case even under section 306 of IPC. ( 13 ) MS. Alokananda Bose, appearing on behalf of the State, in course of her submission has submitted before, me 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 Cr. PC. PC. She has, however, submitted with her usual frankness that only at the stage of framing of charge the Court is required to evaluate the materials and the documents on record with a view to finding out if the facts emerging therefrom taken on 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 limited purpose. ( 14 ) REFERRING to the materials collected in Case Diary, by the I. O. , specially the statements recorded under section 161 of Cr. PC. , and with reference to Post Mortem Report, it has been submitted by her that the allegation of rape and consequent pregnancy have not been supported by the autopsy surgeon and as such no charge-sheet has been filed under section 376 IPC, against the accused petitioners. But upon simple perusal of the statements, recorded under section 161 Cr. PC, it will be crystal clear that there is prima facie material, at least against two of the petitioners, namely, Amar Chand Mukherjee and Smt. Krishna Mukherjee. So, at this stage on such materials proceeding against them cannot be quashed by invoking jurisdiction under section 482 of the Cr. PC. It is quite settled principles of law that for invoking jurisdiction under section 482 of the Cr. PC. , the High Court must have to be satisfied first that prima facie there was abuse of the process of the 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. ( 15 ) IT is also quite well settled position of law that the criminal proceeding against an accused person or FIR/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. It other words, the test is that taking the allegation and the complaint with the papers accompanying the same, as they are, without adding or subtracting anything. It other words, the test is that taking the allegation and the complaint with the papers accompanying the same, as they are, without adding or subtracting anything. If no offence is made out then the High Court will be justified in quashing the proceeding in exercising its power and at this stage High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. ( 16 ) NOW turning to the materials collected in the C. D. , itself, and specially upon perusal of the Post Mortem Report, and the 161 statements recorded by the I. O. , I find no prima facie materials under section 306 of IPC against the accused petitioner Rajesh Mukherjee. ( 17 ) BUT from the statements recorded under section 161 of Cr. PC, I find some prima facie materials to proceed against petitioner No. 2 and 3 namely, Amar Chand Mukherjee and Krishna Mukherjee only and as such, I find no justifiable reason to quash the present proceeding against them as it is not possible at this stage to embark upon any enquiry as to the probability, reliability and genuineness of the statements made therein. The same may, however, be considered by the concerned trial Court at its appropriate stage in a permissible way. ( 18 ) NOW, upon perusal of the materials available in this case, and in view of my discussion in the foregoing paragraphs, I am rather constrained to hold that the proceeding of Panduah P. S. Case No. 194/93 dated 10. 9. 93 under section 306 of the Indian Penal Code (G. R. Case No. 1124/93) pending before the Court of S. D. J. M. Hooghly Sadar cannot be quashed in its totality, in sofar as it relates to petitioner No. 2 and 3 namely, Amar Chand Mukherjee and Krishna Mukherjee. But the aforesaid proceeding in so far as it relates to petitioner No. 1 Rajesh Mukherjee, is, hereby, quashed. The aforesaid proceeding shall, however, continue against the other two petitioners namely, Amar Chand Mukherjee and Krishna Mukherjee as usual. ( 19 ) IN view of the above, the revisional applications are, thus, treated to be disposed of accordingly. Interim order, if any, stands vacated. The aforesaid proceeding shall, however, continue against the other two petitioners namely, Amar Chand Mukherjee and Krishna Mukherjee as usual. ( 19 ) IN view of the above, the revisional applications are, thus, treated to be disposed of accordingly. Interim order, if any, stands vacated. Let a copy of this order be sent down to the Court below for information and necessary compliance with a direction to proceed with this case as expeditiously as possible against the petitioner No. 2 and 3 namely Amar Chand Mukherjee and Smt. Krishna Mukherjee in accordance with law. Application disposed of of .