Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 207 (CAL)

SUBRATA KR. BISWAS v. SWAPAN CHAKRABORTY

2005-03-24

RAJENDRA NATH SINHA

body2005
Rajendra Nath Sinha ( 1 ) THIS is an application under Section 482 of the Code of Criminal procedure for quashing of the proceedings being Case No. CR-41 of 2002 pending before the learned Chief Judicial Magistrate at Murshidabad, under sections 409/182 of the Indian Penal Code and order dated 8th January, 2003 passed therein. ( 2 ) THE petition may be stated in brief The petitioner happened to be the Regional Manager of Allahabad Bank, Behrampore Region West bengal. The opposite party is an ex-employee of Allahabad Bank and was working since 1986, a casher in charge in Category "e" at Behrampore branch of Allahabad Bank, in the District of Murshidabad. In course of his work as a casher he was arrested considering an FIR lodged by the petitioner, the then Manager, on the allegation. The opposite party was in custody for 62 days in connection with the said case being C. R. Case No. 1411 of the 1997 and still pending before the learned Additional Sessions judge, 3rd Court, Murshidabad. Thereafter action was initiated against the opposite party leading to his dismissal from the service. The said dismissal has been challenged by the O. P. in writ petition having No. 15737 (W) of 2002 pending before this Hon'ble Court. During the pendency of the aforesaid writ petition, opposite party filed a complaint case against one mr. N. R. Banik, the then Regional Manager and Disciplinary Authority of allahabad Bank under Sections 219, 503 and 166 of Indian Penal Code together with Sections 29 and 33 of Industrial Disputes Act. The learned chief Judicial Magistrate, Murshidabad by his order dated 30th September, 2000 dismissed the said complaint being C. R. Case No. 71 of 2000 on the ground that he had no jurisdiction to entertain the said complaint. The opposite party preferred a criminal motion No. 20 of 2001. Learned Additional sessions Judge, 3rd Court dismissed the same on contest by his order dated 20th December, 2001. ( 3 ) IN the month of February the petitioner received summons issued by the learned Chief Judicial Magistrate at Murshidabad upon the said complaint lodged by the opposite party under Sections 409,182 and 120 B of the Indian Penal Code. On the aforesaid complaint, the learned Chief judicial Magistrate by his order dated 8th January, 2003 pleased to direct to issue summons fixing 01. 03. 03 for service return and appearance. On the aforesaid complaint, the learned Chief judicial Magistrate by his order dated 8th January, 2003 pleased to direct to issue summons fixing 01. 03. 03 for service return and appearance. ( 4 ) IT has further been stated in the petition that the aforesaid C. R. Case has been filed suppressing the material facts of filing the earlier C. R. Case No. 71 of 2000, its consequential dismissal up to the criminal motion stage. It has been submitted that no criminal case is made out as against the petitioner and that also Section 195 (1) (A) and Section 197 of the Code of Criminal Procedure stand as a bar in entertaining the aforesaid. In connection with the impugned order of issue of summons the same has been seriously challenged on the ground amongst others that the same is not maintainable on the self-same matters and that no prima facie criminal case is made out, thus, the petition was filed seeking to quash the impugned order dated 8. 1. 03 passed in the aforesaid C. R. Case. ( 5 ) THE aforesaid matter has been argued by both the sides. Mr. Siddhartha Banerjee, learned lawyer for the petitioner has contended that on the plain reading of the petition of complaint can be referred is appended with the petition in running page No. 37 wherein the opposite party being the complaint has impleaded as many as six persons, all of the Allahabad bank as the accused and there are quite a large number of witnesses i. e. , five witnesses have been cited. I am tempted to state it in detail which states as follows :-That the complainant as ex-employee of the Allahabad Bank was victimised by the authority by falsely implicating in a Criminal case No. G. R. No. 1411 of 1997 on concocted evidence. That he was dismissed from employment in utter disregard of principles of natural justice, settle law of the land and agreement of their own banking industry and the matter is under scrutiny of this hon'ble Court by way of the writ petition. That one senior establishment manager has branded as second accused in the petition of complaint reported forwarding of imperfect information to the Head Office with a malicious intention to cause injury to the complainant's legitimate privileges. That one senior establishment manager has branded as second accused in the petition of complaint reported forwarding of imperfect information to the Head Office with a malicious intention to cause injury to the complainant's legitimate privileges. ( 6 ) ALL the accused involving in a criminal conspiracy to put the complainant in financial trouble and forfeit large number of money which is sub-judice and pre-mature, held up huge amount in sundry creditors A/c. without assigning any ground and totally silence regarding the others legitimate privileges of the complainant and create criminal intimation to the complaint not to contest against their illegal actions. ( 7 ) THE accused were so adamant and reluctant that they even did not respond to the petitioner/complaint's representation. ( 8 ) THE accused were stated to be fraudulent regarding legitimate privileges of the complainant with the intention to cause injury and mental pressure to the complainant. ( 9 ) THEY also suppress the actual particulars in respect of the petitioner to the bank authorities about his available privileges. He prayed for issuance of summons. ( 10 ) LEARNED Magistrate issued summons accordingly, leading to filing of this petition under Section 482 of the Code of Cr. Procedure. ( 11 ) AFTER hearing Mr. Banerjee and Mr. Bag, learned Advocates of both the sides, I am unable to follow as to how the present contempt could be taken and summons issued. Neither of the side cited any decisions though there are quite a large number of decisions of the Apex Court and of our high Court in this regard. ( 12 ) BE that as it may, on the plain reading of the petition of complaint do not disclose any criminal offence. Save and except some offences, mens rea is a criterion for/ingredient of a criminal offence. Here the same is no where stated as whispered. ( 13 ) IN Chapter-XIV of the Code of Criminal Procedure Sections 195 to 199 are the exceptions to the general rule that any person, having knowledge of the commission of offence, may set the machinery of law in motion by a complaint, even though he is not personally interested as affected by the offence. These sections are to be read with Chapter-XXVi. Section 340 of the Code which provides procedure in cases mentioned in chapter-XIV, Section 195 of the Code. These sections are to be read with Chapter-XXVi. Section 340 of the Code which provides procedure in cases mentioned in chapter-XIV, Section 195 of the Code. ( 14 ) LEARNED Magistrate appears to be oblivious about aforesaid two chapters. Section 195 (a) (1) of the Code expressly prohibits taking of cognizance of the offence unless the particular section is reproduced herein before:-"section 195 : no Court shall take cognizance- (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ). or (ii) of any abetment of, or attempt to commit, such offence or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate object-The object of the section is to stop private person from obtaining sanction as a means of wreaking vengeance and to give the Court full discretion in deciding whether any prosecution is necessary or not. Sanction to prosecute cannot now be granted to a private person. Private prosecution, in every case, is more likely to be inspired by the avenging spirit and, indeed, in a system of criminal administration, where the party wronged rather than a public official, is given the conduct of prosecution the vice of over-eagerness to obtain convictions predominates. The evil may not be avoided altogether. But at least in the case of offences where the act to a great extent affects the dignity and prestige of the Courts concerned, it is deemed inexpedient to allow such acts to be the sports of personal passions. The Supreme Court has held that every incorrect or false statement does not make it incumbent upon the Court to order prosecution. The Court should exercise judicial discretion in the light of all relevant circumstances. The Court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or serve the ends of a private party. The operation of this section is only confined to certain offences under the Indian Penal Code. The Court should exercise judicial discretion in the light of all relevant circumstances. The Court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or serve the ends of a private party. The operation of this section is only confined to certain offences under the Indian Penal Code. The Supreme Court has held that this section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in this section. It is applicable-even in a case initiated on a police report and is not restricted to those started on private complaints. Where a complaint indicates that the accused is guilty of offence enlisted in section 195 along with other offence not so enlisted, it was held that prosecution for those other offences falling outside the purview of section 195 can be made without a complaint from a public servant. Whether however the offences were inseparable and were based on identical facts and circumstances, complaint by a Court being necessary in respect of one, a trial should not be proceeded in the absence of such complaint as was required by Section 195 of the code. " ( 15 ) IN this context on perusal of the entire petition of complaint the ingredients of the offence under Section 409 I. P. C. has no where been made out. ( 16 ) FOR the purposes of quashing of the proceeding, though the power under Section 482 Cr. P. C. is to be used sparingly but it may be so exercised if things so emerge : 1) If the allegations in complaint/statements if taken in face value, makes no case or disclose essential ingredients ; 2) Where the allegations are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there are sufficient ground for proceeding. 3) Where discretion exercised by the Magistrate in issuing process is capricious and arbitrary having based on no evidence or those are wholly irrelevant and inadmissible. 4) Where it suffers from fundamental legal defects such as want of sanction, as absence of complaint by competent authority. Prevention of miscarriage of justice. Prevent abuse of the process of law. Continuance of the proceeding won't subserve the cause of justice. ( 17 ) KEEPING in view of the aforesaid discussion as above and the law as has been laid down by the Hon'ble Apex Court and this Hon'ble Court from time to time and the principles of law it transpires that the impugned order together with the petition of complaint in itself cannot be allowed to proceed with as the same would not subserve the cause of justice. ( 18 ) IN the result, the petition succeeds. The aforesaid petition of complaint No. 415 of 2003 pending in the Court of learned C. J. M. , murshidabad stands quashed without any costs whatsoever. Urgent xerox certified copy of this judgment, if applied for, be given to the parties at the earliest.