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Calcutta High Court · body

2008 DIGILAW 1052 (CAL)

Z. I. Khan v. State

2008-12-10

JAYANTA KUMAR BISWAS

body2008
JUDGMENT:- (1). The petitioner in this application dated April 29, 2008 taken out under Sections 401 and 482 of the Code of Criminal Procedure, 1973 is seeking an order quashing the G.R. Case No.83 of 2008 pending before the Chief Judicial Magistrate, Port Blair. (2). The G. R. Case No.83 of 2008 was initiated on the basis of the FIR No.8 dated January 5, 2008 lodged by one Kumari B. Bharthi with the Aberdeen Police Station. The police station registered the FIR under Sections 342/354 of the Indian Penal Code, 1860. After registering the FIR, the competent investigating officer started the investigation. Subsequently, the case was converted to one under Sections 376/511/ 342 of the Indian Penal Code, 1860. After completion of investigation, the investigating officer submitted his report, and consequently charge-sheet No.28 of 2008 dated January 25, 2008 was submitted under Sections 376/511/342 of the Indian Penal Code, 1860. The case has not yet been committed, and the question of framing the charges has not yet arisen. (3). Mr. Adhikari, Counsel for the petitioner, has argued that from the materials produced by the investigating officer it will appear that there is absolutely nothing to show that any case has been made out against the petitioner under any of the sections mentioned in the charge-sheet. According to him, permitting the prosecution to proceed further with the case will amount to nothing but sheer abuse of the process of Court. His submission is that to prevent abuse of the process of Court the case should be quashed. According to Mr. Mandal, Counsel for the State, there is absolutely no reason to interfere with the case in which the petitioner will get all necessary opportunities at the time the question of framing charges will be considered to say that the materials produced by the investigating officer cannot be considered any warrant for framing any charge against him under any of the sections mentioned in the charge-sheet. (4). In my view, this is not a fit case to interfere in exercise of power conferred by the provisions of Section 482 of the Code of Criminal Procedure, 1973. (4). In my view, this is not a fit case to interfere in exercise of power conferred by the provisions of Section 482 of the Code of Criminal Procedure, 1973. The question whether the materials produced by the prosecution are sufficient to reach a conclusion that they make out a triable case against the petitioner, in my view, is to be decided only by examining the materials themselves and this exercise is to be carried out only by the Court competent to consider the question of framing charges, and not by the High Court in exercise of power under Section 482 of the Code of Criminal Procedure, 1973. The power to quash a criminal case is to be exercised sparingly and in a rare case. Mr. Mandal is right in saying that the petitioner will get sufficient opportunity at the appropriate stage to satisfy the Court concerned that the materials supporting the charge-sheet do not make out any case against him under any section mentioned in the charge-sheet, or under any other provision of law. (5). Mr. Adhikari has said that liberty may be given to the petitioner to apply for bail, if occasion arises, and the Court concerned may be directed to consider the application for bail. Needless to say that if the petitioner needs to apply for bail at any point of time, in the absence of a statutory prohibition, nothing can prevent him from doing so, and further that once an application for bail is filed, it will be the duty of the Court of consider and decide it in accordance with law. (6). For the foregoing reasons, the revision application is dismissed. Urgent certified xerox of this order, if applied for, shall be supplied to the parties on the usual undertakings. S. B.