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2004 DIGILAW 319 (CAL)

ASHIS DEY v. STATE OF WEST BENGAL

2004-05-07

P.N.SINHA

body2004
P. N. SINHA, J. ( 1 ) THIS revisional application under section 482 of the Code of Criminal procedure (hereinafter called the Code) has been preferred by the petitioner praying for quashing the criminal proceeding being G. R. Case No. 41/04 arising out of Suri P. S. Case No. 9 dated 20. 1. 04 under sections 147/149/448/353/332/427 of IPC and section 3 of the P. D. P. P. Act and all orders passed therein in said G. R. Case now pending in the Court of the learned Sub-Divisional Judicial magistrate (hereinafter called the SDJM), Suri. ( 2 ) LEARNED advocate for the petitioner contended that the informant Pankaj kumar Chandra was posted as Executive Officer of Suri Municipality at the relevant time. Regarding incident dated 20. 1. 04 he lodged two complaints one addressed to the Chairman, Suri Municipality and the other FIR before the o. C. , Suri P. S. for starting criminal case against the petitioner. In the complaint addressed to the Chairman, the complainant alleged that the petitioner entered into his office room and snapped the telephone wires, lighted a cigarette and abused and insulted him using obscene languages and created pressure on him to sign a bill. When the complainant asked him to behave properly he abused the Chairman also and when the complainant came out of the room for proceeding to the Chairman, the petitioner accompanied by some of his associates pushed the complainant and again abused him with filthy languages and threatened him with dire consequences. In the FIR lodged before the police station at 5. 35 P. M. on same day the complainant mentioned that on 20. 1. 04 at about 1. 20 P. M. the petitioner along with 6/7 unknown persons attacked his office and created pressure on him to pass one illegal bill. When he refused to pass the bill they confined him in chamber and assaulted him with fists and blows and damaged some furniture and important documents and also abused him with filthy languages. When he tried to inform the police over phone they disconnected the telephone line and intimidated him with dire consequences. When he refused to pass the bill they confined him in chamber and assaulted him with fists and blows and damaged some furniture and important documents and also abused him with filthy languages. When he tried to inform the police over phone they disconnected the telephone line and intimidated him with dire consequences. ( 3 ) HE contended that contents of two complaints are different, whereas in the complaint addressed to the Chairman there was entry of petitioner only in the office room of complainant, but in the FIR at police station complainant mentioned about entry of 6/7 unknown persons in the office room along with petitioner. Annexure P-3 is the report of Suri Telephone Exchange which reveals that there was no fault regarding telephone number Suri 255534 and 257308 in the month of January, 2004. It establishes that the story that petitioner snapped telephone wire or disconnected telephone line are false and fabricated. The petitioner belongs to a particular political party and out of political grudge to ruin his political career this false case has been started against him. The chairman of the Municipality has certified as per Annexure P-4 that both of his telephones were in operation on 20. 1. 04 and there was no disconnection of telephones and on 20. 1. 04 there was only misunderstanding and the complainant was responsible for the incident as he first misbehaved with this petitioner and the matter was amicably settled. Even after certificate of chairman continuance of the criminal proceeding and submission of charge- sheet are abuse of the process of Court. This has been done only to destroy the political image of the petitioner. Accordingly, the impugned criminal proceeding should be quashed and all orders passed in connection with G. R. Case No. 41/04 of the Court of learned SDJM, Suri should be set aside. ( 4 ) LEARNED advocate appearing for the State contended that anticipatory bail prayer of the petitioner was rejected. After investigation chargesheet has also been submitted against the petitioner. Sufficient materials of prima facie case has been revealed against the petitioner during course of investigation. At this stage this Court will not consider evidence like the Trial Court. It is not a fit case to quash the criminal proceeding. The revisional application should be dismissed. After investigation chargesheet has also been submitted against the petitioner. Sufficient materials of prima facie case has been revealed against the petitioner during course of investigation. At this stage this Court will not consider evidence like the Trial Court. It is not a fit case to quash the criminal proceeding. The revisional application should be dismissed. ( 5 ) I have duly considered the submissions of the learned advocates of the parties and perused the revisional application and the annexures made with the application. In my opinion there is no second complaint in the instant case. The alleged complaint addressed to the Chairman of Suri Municipality is not at all a complaint submitted by the de facto complainant seeking initiation of criminal proceeding against the petitioner. The de facto complainant Pankaj kumar Chandra only informed the Chairman regarding the incident dated 20. 1. 04 and requested the Chairman to interfere into the matter. The only complaint in the instant case seeking initiation of criminal proceeding is the fir lodged by the Executive Officer of Suri Municipality to the O. C. , Suri P. S. Therefore, mention of name of only petitioner in the letter addressed to the chairman and mention of entry of few persons with this petitioner in the FIR cannot be regarded as a ground for initiating a false and fabricated complaint/ fir against the petitioner. ( 6 ) IN the FIR there is allegation of assault on the de facto complainant by- fists and blows and in the letter to the Chairman there was allegation that the petitioner pushed him. An assault has been defined in section 351 of the IPC and it runs as follows:"351. Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.-Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparations such a meaning as may make those gestures or preparations amount to an assault. " ( 7 ) ILLUSTRATION (a) attached to section 351 shows that gestures which cause a person to apprehend that the person making them is about to use criminal force amounts to an assault. " ( 7 ) ILLUSTRATION (a) attached to section 351 shows that gestures which cause a person to apprehend that the person making them is about to use criminal force amounts to an assault. Therefore, use of abusive languages and subsequent conduct of pushing the complainant may amount to assault also, though in the fir it has specifically been mentioned that the Executive Officer was assaulted by fists and blows. An Executive Officer is a Government servant and he was discharging his duties during the course of his official capacity. Materials in the case diary indicates that. there are sufficient materials against the petitioner to make out prima facie case sufficient to proceed further. At this stage it would not be proper for this Court to mention in detail what are the statement of the witnesses, but it is clear that materials in case diary clearly establishes that allegations made in FIR has been established during investigation which warrants continuation of criminal proceeding against the petitioner. ( 8 ) IT appears that chargesheet under section 147/149/ 448/332/ 353/ 427 of ipc has been submitted against the petitioner. At this stage, this Court would not enter into discussion of evidence or would not try to assess evidence like a trial Court or Appellate Court to come to a conclusion whether prosecution case as alleged has been established beyond all reasonable doubt or not. All these matters should be left to be decided by Trial Court on the basis of evidence that may come up before the Trial Court. At this stage this Court will consider only whether there are materials of a prirna facie case and whether FIR disclosed elements of cognizable offence against the petitioner. The allegation that the fir was lodged on account of political grudge and personal vendetta is itself not a ground to discard the FIR or chargesheet which has to be tested and weighed after the evidence in trial. ( 9 ) THE ground that the petitioner has been falsely implicated out of political rivalry to ruin his political career is not at all a ground to quash the criminal proceeding. Political vendetta cuts both ways namely, sometimes false cases are started and sometimes genuine cases are shielded. ( 9 ) THE ground that the petitioner has been falsely implicated out of political rivalry to ruin his political career is not at all a ground to quash the criminal proceeding. Political vendetta cuts both ways namely, sometimes false cases are started and sometimes genuine cases are shielded. In the instant matter it has been alleged that a public servant was assaulted and it is unexpected that a public servant would lodge a false FIR against the petitioner out of political rivalry. The allegations made in the FIR or the complaint even if it is taken at its face value and accepted in entirety prima facie makes out a case against the petitioner constituting offence and also disclosing elements of cognizable offence. In my opinion the allegations made in the FIR or complaint are not absurd or inherently improbable. The Chairman and the petitioner belong to same political party and at this stage without trial it is risky to rely on the certificate issued by the Chairman. After trial on the basis of evidence only the Court can come to a conclusion of fact whether the incident as alleged was not so as mentioned in the FIR and was a minor and trifle matter as certified by the Chairman. ( 10 ) THE decision cited by the learned advocate for petitioner in State, through special Cell, New Delhi vs. Navjot Sandhu @ Afsha Guru, reported in 2003 (4) supreme 133 , is not applicable in the instant matter. In my opinion, the instant matter cannot be regarded as an abuse of the process of the Court where interference of this Court is necessary to secure the ends of justice. The FIR and the materials collected during investigation makes it clear that there are sufficient materials against the petitioner to proceed further against him in the said criminal proceeding and prima facie case has been made out against him. ( 11 ) IN view of the discussion made above I am of opinion that the instant matter is not a fit and proper case where this Court would exercise its inherent power to abuse process of the Court and to secure ends of justice by quashing the criminal proceeding. In the instant matter the ends of justice can be secured only if the petitioner is placed for trial. In the instant matter the ends of justice can be secured only if the petitioner is placed for trial. ( 12 ) IT is clear, therefore, that in the instant matter there is no ground at all to quash the criminal proceeding being G. R. Case No. 41 of 2004 arising out of suri P. S. Case No. 9 dated 20. 1. 04. The revisional application accordingly fails and is disposed of. ( 13 ) FURTHER I make it clear that whatever I have stated above or observed should not be considered as opinion regarding merit of the case and the concerned court at appropriate stage would act in accordance with law and the learned court below would arrive at its own conclusion and would not be guided by the observations made by this Court in this revisional application. ( 14 ) THE learned SDJM is directed to expedite trial of the case and to take effective steps for supply copies of the relevant papers to the accused petitioner at the earliest. ( 15 ) SEND a copy of this order to the learned SDJM, Suri for information and necessary action. ( 16 ) URGENT xerox certified copy be given to the parties, if applied for, expeditiously. Revisional application fails and disposed of.