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2003 DIGILAW 358 (CAL)

RANEN KUMAR MUKHOPADHYAY v. STATE OF WEST BENGAL

2003-07-18

P.K.BISWAS

body2003
P. K. BISWAS, J. ( 1 ) BY filing this application under section 401 read with section 482 of the Code of Criminal Procedure, one Dr. Ranen Kumar Mukhopadhyay and three other have come before this Court seeking to set aside and/or quash the Charge-sheet No. 261 dated 21-12-2002 submitted by the I. O. of Thakurpukur P. S. before the Court of the learned Sub-Divisional Judicial Magistrate, Alipore in connection with Thakurpukur P. S. Case No. 207 dated 18-7-02 under sections 147/448/427/506/109 of the Indian Penal Code. ( 2 ) THE short facts leading to the filing of this revisional application are as under:-petitioner No. 1 is a doctor having good reputation in the locality and he is now posted as a Medical Officer, Regional Institute of Opthalmology, Medical College, Kolkata. Petitioner No. 2 is the wife of the petitioner No. 1 and she is a teacher of Holy Home, J. C. S. C. School, Kolkata. Petitioner No. 3 is an old aged retired person aged about 64 years, and he is the father-in-law of the petitioner No. 1. The petitioner No. 4 is also an aged lady aged about 57 year, is the mother-in-law of the petitioner No. 1. ( 3 ) IT has been stated by the petitioners that the petitioners Nos. 1 and 2 are living in the 2nd floor of the house at 339/16/2, Kalipada Mukherjee Road, East Park, Behala as husband and wife and the petitioners Nos. 3 and 4 are also living as husband and wife in the 1st floor of the aforesaid house. The petitioners came to learn that one Smt. Jayasree Mandal, the opposite party No. 2 herein lodged a complaint before the Officer-in-Charge, Thakurpukur P. S. on 18. 7. 02 against one Babulal Das, a resident of Eastern Region of the house of the complainant alleging that on 1. 7. 02 at 2. 15 a. m. said Babulal Das along with 8/10 unknown persons raided the house of the complainant and they broke the glass panels of her house. 7. 02 against one Babulal Das, a resident of Eastern Region of the house of the complainant alleging that on 1. 7. 02 at 2. 15 a. m. said Babulal Das along with 8/10 unknown persons raided the house of the complainant and they broke the glass panels of her house. It has further been alleged in the aforesaid complaint by Smt. Jayasree Mandal that after discussion she has come to know that the above persons came to her house for the purpose of committing dacoity and other persons gave impetus to said Babulal Das and in the aforesaid complaint the names of the petitioners were also taken out alleging that they encouraged said Babulal Das to commit the aforesaid offence. ( 4 ) IT has also been alleged on behalf of the petitioners that although the complainant/opposite party in her written complaint dated 18. 7. 02 mentioned that the alleged incident took place on 1. 7. 02 at about 2. 15 a. m. , but she lodged the said complaint before the Officer-in-charge of Thakurpukur P. S. only on 18. 7. 02 after a lapse of 17 days of the alleged incident and no explanation whatsoever was offered in the aforesaid written complaint why there was delay of 17 days and as such the aforesaid written complaint suffers from embellishment and concoction and the involvement of the accused petitioners was incorporated in the said complaint as an after thought and the aforesaid written complaint against the present petitioners has been filed in order to harass and humiliate them before the eyes of others. It has also been contended in the aforesaid written complaint that the police, rather the investigating officer, has not enquired into the matter thoroughly and not recorded the statements of other neighbouring persons and the I. O. of this case has recorded the statements of four persons namely Amalendu Bikash Sarkar, Dipti Sarkar, Tapas Mandal and Rinki Mandal and from such statements, it has clearly transpired that there was an old enmity between the family of the opposite party No. 2 and said Babulal Das regarding their boundary. ( 5 ) IT has further been contended that now after completion of the investigation in a most perfunctory way, the investigating officer has submitted charge-sheet on 21. 12. ( 5 ) IT has further been contended that now after completion of the investigation in a most perfunctory way, the investigating officer has submitted charge-sheet on 21. 12. 02 before the learned Sub-Divisional Judicial Magistrate, Alipore under sections 147/448/427/506 and also incorporated section 109 of IPC without collecting appropriate materials. ( 6 ) FINDING no other alternative, the petitioner has approached this Court for quashing of Thakurpukur P. S. Case No. 207 dated 18. 7. 02 and the charge-sheet No. 261 dated 21. 12. 02 as submitted by the investigating officer under sections 147/448/427/506/109 of I. P. C. insofar as it relates to the present petitioner in connection with the present matter. ( 7 ) THE opposite party No. 2, Jayasree Mandal, was initially represented through her learned advocate in this case and from her side one affidavit-in-opposition was filed alleging therein that on 31. 10. 2000 her husband due to intra cerebral haemorrhage was admitted in a nursing home till 5. 12. 2000. Taking advantage of the situation Sri Babulal Das was trying to grab the vacant portion of her residential premises including 4 ft. hi-drain of K. M. C. violating the order of injunction passed by the Civil Court in connection with T. S. No. 69/2002 and the opposite party No. 2 lodged so many complaints before the police station, yet, without any positive result. ( 8 ) IT has also been contended in her affidavit-in-opposition that the incident in question took place on 1. 7. 2002 in the dark night and opposite party No. 2 filed a complaint vide G. D. E. No. 40/02 dated 1. 7. 02, but local police station did not take any step against the said Babulal Das. Then again opposite party No. 2 submitted one written representation to the Superintendent of Police, South 24 Pgs. on 9. 7. 02 requesting him to take necessary steps and on the basis of the S. P. 's recommendation police investigated into the case and submitted a report vide No. 639 dated 28. 8. 2002 before the learned executive Magistrate to prosecute the said Babulal Das under section 107 of the Criminal Procedure Code and in course of time opposite party No. 2 came to learn that the present petitioners are actual master-mind behind the incident in question and then O. P. No. 2 lodged another complaint on 17. 07. 8. 2002 before the learned executive Magistrate to prosecute the said Babulal Das under section 107 of the Criminal Procedure Code and in course of time opposite party No. 2 came to learn that the present petitioners are actual master-mind behind the incident in question and then O. P. No. 2 lodged another complaint on 17. 07. 02 vide G. D. E. No. 1106 against the present petitioner including the said Babulal Das and others wherein allegation of abatement were brought out against the present petitioners. It has further been contended on behalf of the opposite party No. 2 that since there are cogent materials against the present petitioners for invoking the provisions of section 109 of IPC in the concerned case, there is no justified reason for quashing of the present proceedings and this is not a fit case where the Court should come forward for quashing of the instant case or the charge-sheet insofar as it relates to the present petitioners. The opposite party No. 2 has also annexed various documents along with affidavit-in-opposition. ( 9 ) I have heard the learned counsel appearing for the petitioners and the opposite party No. 2 in person and also the learned counsel appearing for the State/opposite party No. 1. ( 10 ) MR. S. Roy, the learned counsel appearing for the petitioners in course of his submission has submitted before me that the powers under section 482 of the Code of Criminal Procedure should be exercised by the Court to prevent the abuse of the process of the Court, but not to stifle the legitimate prosecution. But, taking me through the petition of complaint and materials produced by the O. P. No. 2 in her affidavit-in-reply it has been submitted by Sri Roy that it has now become quite clear that on the date of the incident one G. D. Entry was lodged by O. P. No. 2 in relation to the offence in question and in that there was no whisper with regard to the names of the present petitioners for being involved in such offence and similarly, in the representation, submitted by O. P. No. 2 on 9. 7. 02, there was also no whisper with regard to the involvement of the present petitioners for committing an offence under section 109 of IPC Only in the G. D. Entry dated 18. 07. 02. 7. 02, there was also no whisper with regard to the involvement of the present petitioners for committing an offence under section 109 of IPC Only in the G. D. Entry dated 18. 07. 02. , the names of the present petitioners were incorporated alleging that the petitioners were involved in the abatement with Babulal Das and they were giving such directions to said Babulal Das since 4/5 years and virtually doing all dirty works from behind. ( 11 ) FOR the aforesaid belated inclusion of the names, as it is there in the G. D. Entry dated 17. 7. 02, no explanation was offered, however, as to why on the earlier occasions the names of the present petitioners were not included. So, the earlier two written representations, submitted by the O. P. No. 2 before the concerned police authority, make it abundantly clear that the allegation levelled against the petitioners in the G. D. Entry dated 17. 07. 02 were patently absurd and inherently improbable and no prudent man can ever reach to any conclusion that there was sufficient ground for proceedings against the petitioners in the instant case. Now on the face of such allegation, levelled against the petitioners firstly on 17. 07. 02, almost after lapse of 17 days from the alleged incident, it is quite clear that the criminal proceeding directed against the present petitioners was manifestly attended with mala fide and/or it was maliciously instituted with an ulterior motive for wrecking vengeance on the accused petitioners with the view to spite them for the private and personal grudge. Furthermore, the investigation conducted by the police authorities in connection with the case was not also proper and this has been exercised mala fide by not examining the independent persons of the neighbouring locality and the allegation levelled against these petitioners taken on their face value will lead to the inevitable conclusion that it was based on mere surmises and the allegation of abatement does not conform to the standard, as defined in section 107 of the IPC. ( 12 ) SO, taking into consideration the entire materials available, as unfolded by the investigating agency after some sort of investigation it will also make it abundantly clear that they do not, in any event, disclose any kind of offence far less to be an offence under section 109 of IPC and as such continuation of the proceeding against the present petitioners under section 109 of IPC would be certainly an abuse of the process of the Court and as such it should be quashed. ( 13 ) THE Opposite Party No. 2 Jayasree Mandal, while appearing in person at the time of hearing, has contended that the present petitioners are the master-mind behind the incident in question and the materials, collected so far against them, by the investigating agency, make it abundantly clear that there is, prima facie, sufficient materials against them for continuation of the present proceeding at least under section 109 of IPC and as such as per the settled position of law that at the time of disposal of the revisional application, seeking, quashing of the proceeding, the Court should not and cannot go for any enquiry to ascertain as to whether the materials, collected against the present petitioners are either sufficient or inadequate. ( 14 ) SRI Barin Roy, learned advocate appearing for the Opposite Party/state drawing my attention to the ration of the decision reported in AIR 1990 Supreme Court, 121 in the case of Radhey Shyam v. Kunj Behari and Ors. , has contended before me that as per the settled position of law and the ratio decided in the aforesaid case, it is now quite clear and settled that the Court at the stage of quashing is not entitled to embark upon any sort of enquiry with regard to the sufficiency or adequacy of the materials, collected against the present petitioners and the allegations, as it is there, should be accepted in toto without adding anything or subtracting anything therefrom and if upon scrutiny of such materials, it appears to the Court that they do not make out any case as alleged, Curt then will come forward for quashing only. ( 15 ) I have given my anxious consideration with regard to the submissions made by the respective parties before me. ( 16 ) TRUE it is that the High Court retains the plenary power under section 482 of the Cr. ( 15 ) I have given my anxious consideration with regard to the submissions made by the respective parties before me. ( 16 ) TRUE it is that the High Court retains the plenary power under section 482 of the Cr. PC for quashing of a criminal proceeding pending before any subordinate Courts if upon assessing the materials, it appears to the Court that the continuation of the aforesaid criminal proceeding would be a mere abuse of the process of the Court and/or the Court may also quash such proceeding if it appears to the Court that such quashing is necessary for the purpose of meeting the ends of justice. ( 17 ) IT has now become also settled that at the stage of quashing, the Court is not entitled to embark upon any sort of enquiry with regard to the truthfulness or otherwise of the allegation, and such powers of the High Court should be used with extreme circumspection and that too in rarest of the rare case and in doing so, the Court has to accept the allegations, as they are, without adding anything or subtracting anything therefrom. ( 18 ) SO, from the aforesaid position, it has now become quite clear that only in the event the Court finds that the continuation of the proceeding would be an abuse of the process of the Court and/or as such quashing is necessary to meet the ends of justice, in such event, quashing is only permissible. ( 19 ) HERE, in the instant case, it has now become admitted position that in the first two written information one dated 1. 7. 02 and another dated 9. 7. 02, the names of the present petitioners were not incorporated, nor any allegation was brought out against them alleging that they aided and abated the aforesaid offence involved in this case allegedly committed by Babulal Das and ors. It is only in the written information submitted on 18. 07. 02, after a lapse of 17 days from the date of incident, the names of the present petitioners were incorporated alleging abatement in a general way without disclosing necessary basic ingredients. ( 20 ) MY attention was also drawn to the statement of witnesses recorded under section 161 of Cr. 07. 02, after a lapse of 17 days from the date of incident, the names of the present petitioners were incorporated alleging abatement in a general way without disclosing necessary basic ingredients. ( 20 ) MY attention was also drawn to the statement of witnesses recorded under section 161 of Cr. PC by the learned counsel appearing for the petitioners wherefrom it only appeared that these petitioners have given encouragement to Babulal Das and ors. , by making a bald statement without furnishing any specific instances of such alleged encouragement. ( 21 ) MR. S. Roy, learned advocate appearing on behalf of the petitioners drawing my attention to the fact of non-mentioning of the names of the petitioners in the first two written information with regard to the incident in question and taking me through the statements recorded under section 161 of Cr. PC has submitted before me that even giving fullest premium to the statements of those witnesses, at best, this could come as an encouragement and that too without any specification and as such the same cannot be equated as an abatement as defined under section 107 of IPC and the aforesaid fact, taken together with non-mentioning of the names of the petitioners in the first two written information will make it abundantly clear that the entire materials, as available and accepting those as a whole at their face vale, do not constitute any offence of abatement as alleged against the present petitioners and the inclusion of the names of the petitioners in the third written information after a long lapse of time from the date of incident will make it clear that this allegation against the petitioners was manifestly attended with mala fide and/or is maliciously instituted with an ulterior motive for wrecking vengeance on the accused with a view to spite them due to private and personal long standing grudge. ( 22 ) IN the instant case, examining the rival contentions in the background of the materials available on record and accepting those at their face value, I am rather constrained to hold that the materials, as disclosed and having taken them at their face value, do not by itself constitute the offence as alleged against the present petitioners and it also appears to me that such allegations were brought against the present petitioners with a mala fide intention. ( 23 ) THAT being the position, I am rather prompted to accept the contentions made by the petitioners that the continuation of the aforesaid proceeding against the present petitioners would be an abuse of the process of the Court and as such this is a fit case where the Court should come forward for invoking its power under section 482 of Cr. PC for quashing the criminal proceeding against the present petitioners in so far as it relates to the offence under section 109 of IPC. Thus, the revisional application is disposed of accordingly. Xerox certified copy of this judgment, if applied for, be made available to the parties with utmost expedition. Application disposed of of.