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2005 DIGILAW 114 (CAL)

JIAUL HAQUE v. STATE OF WEST BENGAL

2005-02-18

ARUN KUMAR

body2005
ARUN KUMAR ( 1 ) THE hearing stems from an application filed by the petitioners praying for quashing the F. I. R. being No. 163/2004 dated 08. 12. 2004 under Sections 420/ 342/293/376 I. P. C. , registered as G. R. Case No. 774/2004 pending before the court of learned S. D. J. M. , Kandi. ( 2 ) THE circumstances leading to the above application are that the petitioner's father O. P. No. 3 at his old age has developed on illicit relationship with O. P. No. 2 who has been divorced by her husband, for over last two years and has promised to marry her by giving all his movable and immovable properties. As the said illegal act of O. P. No. 3 has been damaging the prestige of the petitioner's family they protested against it. At the instance of O. P. No. 3, o. P. No. 4-mother of O. P. No. 2, filed an application under Section 156 (3) Cr, p. C. in the Court of learned, S. D. J. M. , Kandi in 2002 alleging that the petitioners kidnapped O. P. No. 2 on 12. 02. 2002 which was not entertained. The said O. P. No. 3 lodged another complaint under Section 156 (3) Cr. P. C. through O. P. No. 2 in the Court of learned S. D. J. M. , Kandi on 08. 12. 2004 alleging that the petitioners committed rape upon her two years ago on and from 11. 02. 2002 to 24. 02. 2002. The above complaint is absolutely baseless, false and not worthy of belief. In the case filed by O. P. No. 4 against the petitioners on 27. 02. 2004 under Sections 147/447/427/506/323 I. P. C. , where the date of incident has been shown as 14. 02. 2002, there is no whisper of the allegation of rape. ( 3 ) MR. Prabir Kumar Mitra, learned Counsel for the petitioners contended that on the facts aforesaid, the F. I. R. being No. 163/2004 dated 08. 12. 2004 alleging an incident of rape of about two years back does not prima facie stand, and as such the same deserves to be quashed. Mr. ( 3 ) MR. Prabir Kumar Mitra, learned Counsel for the petitioners contended that on the facts aforesaid, the F. I. R. being No. 163/2004 dated 08. 12. 2004 alleging an incident of rape of about two years back does not prima facie stand, and as such the same deserves to be quashed. Mr. Pinaki Kumar Bhattacharya, learned Counsel for the State, on the other hand, on referring a decision in M. Narayandas v. State of Karnataka, reported in 2004 SCC (Cr.) 118 submitted that mere delay is no ground for discarding the F. I. R nor is it any ground for quashing an F. I. R. particularly when a clear case of cognizable offence has been made out, and so the petitioner's prayer for quashing the F. I. R. should be rejected in limine. ( 4 ) NOW, a criminal proceeding may be quashed where : (1) it appears that there is a legal bar against the institution or continuance of criminal proceeding in respect of the offence alleged e. g. absence of requisite sanction, or (2) the allegation in the F. I. R. or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, or (3) the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge, as was held in the case of r. P. Kapur v. State of Punjab, reported in AIR 1960 SC 866 . ( 5 ) A glance to the fact as disclosed in the F. I. R. appear to have spelt out a cognizable offence. To determine if continuation of a proceeding is an abuse of process of Court, it will not be justified on the part of this Court to embark upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F. I. R. nor can it inquire whether the allegations in the complaint are likely to be established or not. The power to quash must be exercised very sparingly and with circumspection and that too in the rarest of rare cases which is well-settled. The power to quash must be exercised very sparingly and with circumspection and that too in the rarest of rare cases which is well-settled. In this connection, the decision in M. Narayandas v. State of karnataka, reported in 2004 SCC (Cr.) 118 at 123 may well be referred to. If from the averments of the complaint no offence whatsoever is disclosed or made out, it will be justified to quash the proceeding under the inherent power. Delay alone is no ground for throwing an F. I. F. overboard nor mere allegation of enmity towards the accused is sufficient to quash the prosecution. As regards absence of allegation of rape in the case under Sections 147/447/427/506/323 i. P. C. initiated on 27. 02. 2004 at the instance of O. P. No. 4, the said case is based on a different fact relating to a different date which cannot be said to have any nexus with the offence of rape-the subject-matter of another case, and as such there appears to be no need for referring the fact of rape in the aforesaid case and no adverse inference can be drawn for it. In the premises, in the light of the above discussion, there being no merit in the present application, it be dismissed on contest but without any cost in the circumstances. Let a copy of this order be sent down at once to the learned Court below.