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2009 DIGILAW 303 (CAL)

TULSI CHANDRA v. STATE OF WEST BENGAL

2009-04-09

KISHORE KUMAR PRASAD

body2009
JUDGMENT Kishore Kumar Prasad, J. : 1. The instant application invoking the inherent power of this Court under Section 482 of the code of Criminal Procedure has been filed by the petitioners herein for quashing the charge sheet being No. 233 of 2007 dated, 20.12.2007 under Sections 498A/ 323/34 of the Indian Penal Code arising out of Shibpur P.S. Case No. 255 of 2007 dated. 20.9.2007 registered as G.R. Case No. 2144 of 2007. 2. Even though the learned lawyer for the petitioners has not cared to put in appearance before this Court in spite of order dated. 23.3.2009 passed by this Court, I have heard the argument advanced by the learned lawyer appearing on behalf of the Opposite Party No. 2 herein and gone through the materials on record. 3. None appeared on behalf of the Opposite Party / State of West Bengal to resist the instant application. 4. Learned lawyer for the Opposite Party No. 2 submitted that a charge sheet has since been filed, therefore, the instant application has become infractuous. According to him the investigation started on the basis of the complaint made on 20.9.2007 which was the F.I.R. and there is no prohibition in initiating investigation on the basis of the said complaint lodged by the Opposite Party No. 2 herein, the legally married wife of the petitioner No. 1 herein. 5. Learned lawyer further submitted that if the investigation papers annexed to the charge sheet do not disclose the commission of any crime by the petitioners herein, it would be open to the Trial Court to refuse to frame a charge, but quashing of charge sheet pursuant to F.I.R. is not permissible. Learned lawyer in support of his contentions placed reliance on the two decisions of the Hon’ble Apex Court reported in 1994 SCC (Cri) 500 (State of Punjab vs. Dharam Vir Singh Jethi), 1992 SCC (Cri) 192 (State of Bihar vs. P.P.Sharma, IAS) and one decision of this Court reported in 2004 (4) CHN 233 (Monoranjan Mondal @ M.R.Mondal vs. Union of India). 6. The legislature in its wisdom did not provide any power to the Court to intervene at the stage of investigation by the police under the provisions of the Code of Criminal Procedure. Investigation is the exclusive domain of the police. 6. The legislature in its wisdom did not provide any power to the Court to intervene at the stage of investigation by the police under the provisions of the Code of Criminal Procedure. Investigation is the exclusive domain of the police. It is only when the charge sheet is filed, the Court is empowered either to take cognizance and to frame charge or to refuse to do the same. The FIR is the sheet anchor on the basis of which the investigation ensues. After the chargesheet is filed, the FIR does not remain the sheet anchor, the materials available during investigation are on record. It is the totality of the records on which the Court is supposed to act. The inherent powers under Sectio0n 482 of the Code of Criminal Procedure for quashing the FIR are guided by certain principles. This principle emanates from the contents of the FIR itself. This is done in order to prevent unnecessary harassment of a citizen at the hands of the administration infringing the liberty guaranteed under the Constitution of India. After a chargesheet is filed, when there are other materials, which are in the form of report of the informations collected during investigation, the High Court cannot examine the same in exercise of its inherent jurisdiction for quashing a criminal proceeding since it would be highly undesirable. 7. Inasmuch as a proceeding arising out of an application under Section 482 of the Code of Criminal Procedure is determined on the basis of affidavit evidence. In order to come to the conclusion that on the basis of the materials disclosed in the chargesheet and the report, the chance of conviction is bleak would be an appreciation of evidence by the High Court in its inherent jurisdiction, which is otherwise impermissible. It would then amount to annihilating a still born prosecution by going into the merits on the plea of proof of the prima facie case and adverting to those facts and giving findings on merits resulting into grossest error of law in undertaking pre-trial of a criminal case by the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure. Expeditious disposal of a criminal case is the cardinal rule. Delay defeats justice. Expeditious disposal of a criminal case is the cardinal rule. Delay defeats justice. Encouraging of petition in the grab of under Section 482 of the code of Criminal Procedure would encourage to delay trial by diverse tricks feeding injustice to social order. The interference by the High Court after chargesheet is filed can be conceived in the rarest of rare cases where mala fide writ large. 8. The above proposition finds support in the State of Bihar and Another vs. P.P.Sharma and Another reported in AIR 1991 SC 1260 wherein it was held that the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India by the High Court for quashing the FIR after chargesheet is submitted on the ground that the materials produced the chances of conviction were bleak and, therefore, the criminal prosecution should not be allowed to continue and the High Court could not be an idle onlooker while the right under the Constitution was guaranteed to the accused was infringed, the Apex Court had held that if such a decision is upheld then starling and disastrous consequence would ensue. Quashing of the chargesheet even before cognizance is taken in a criminal case by the competent Court amounts to killing a still born child. After the chargesheet is filed, the FIR no longer remains the sheet anchor. The issue and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence has been made out in the chargesheet and the FIR. However, it does not mean that in no circumstances writ petition can be entertained. 9. In Anukul chandra Pradhan vs. Union of India & Ors. reported in 1996 SCC (Cri) 1338, the Hon’ble Apex Court had held that in view of the chargesheet filed in the competent Court, it was that Court which was to deal with the case on merit. 10. In State of Punjab vs. Dharam Vir Singh Jethi, reported in 1994 SCC (Cri) 500, it was held that when the chargesheet was submitted quashing of FIR was not permissible since it would be open to the Court to refuse to frame charge. 11. In Vineet Narain & Ors. Vs. Union of India & Anr. 10. In State of Punjab vs. Dharam Vir Singh Jethi, reported in 1994 SCC (Cri) 500, it was held that when the chargesheet was submitted quashing of FIR was not permissible since it would be open to the Court to refuse to frame charge. 11. In Vineet Narain & Ors. Vs. Union of India & Anr. reported in 1996 SCC (Cri) 264, it was held that where a chargesheet was filed, it was the competent Court which would then deal with the case on merit in accordance with law while refusing to quash the FIR. 12. As regards the Investigating Officer, he has wide powers under the Code of Criminal Procedure. He has to perform his duties with the sole object of investigating the allegations and in the course of the investigation he has to take into consideration the relevant material whether against or in favour of the accused. Simply because the Investigating Officer, while acting in bonefide, rules out certain documents as irrelevant, it is no ground to assume that he acted mala fide. The police report submitted by the Investigating Officer has to pass through the judicial scrutiny of a Magistrate at the stage of taking cognizance. Although the accused person has no right to be heard at that stage but in case the accused person has any grouse against the Investigating Officer or with the method of investigation he can bring to the notice of the Magistrate. When the police report under Section 173 CrPC has to go through the judicial scrutiny it is not open to the High Court to find fault with the same on the ground that certain documents were not taken into consideration by the Investigating Officer. 13. The documents relied on by the petitioners were subject to proof at the trial and if proved to be true and relevant, then only they might serve as a defence for the petitioners herein at the trial. The commission of offence cannot be decided on affidavit evidence and this Court has not taken short course “ in annihilating the still born prosecution” by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave findings on the merits. The least I can say is that this was not at all a case where this court should have interfered in the exercise of its inherent jurisdiction. 14. The least I can say is that this was not at all a case where this court should have interfered in the exercise of its inherent jurisdiction. 14. The Hon’ble Apex Court has repeatedly held that the appreciation of evidence is the function of criminal Courts. The High Court, under the circumstances could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. 15. I have gone through the entire materials on the record carefully and I am unable to agree with the grounds taken in the application that there was any ground to hold that the prosecution against the petitioner herein was initiated as a result of any malice on the part of the informant or the Investigating Officer. 16. The informant, being in a peculiar position having lodged the acquisition, is bound to be looked down upon by the accused/petitioners herein. 17. There is no material in this case to show that on the date when the F.I.R. was lodged by the informant-Opposite Party No. 2 she was activated by bias or had any reason to act maliciously. The dominant purpose of registering the case against the petitioners herein was to have an investigation done into the allegations contained in the F.I.R. and in the event of there being sufficient material in support of allegations to present the chargesheet before the Court. 18. There is no material to show that the dominant object of registering the case was the character assassination of the respondents or to harass and humiliate them. The Apex Court in State of Bihar v. J.A.C. Saldhana reported in (1980) 1 SCC 554 has held that when the information is lodged at the police station and an offence is registered, the mala fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person. 19. For the reasons aforementioned and keeping in mind the decisions of the Hon’ble Apex Court (Supra), including the decisions relied on by the learned counsel for the Opposite Party No. 2 (Supra), I am constrained to hold that there is no force in this application under Section 482 of the Code of Criminal Procedure. It is accordingly rejected. 20. 19. For the reasons aforementioned and keeping in mind the decisions of the Hon’ble Apex Court (Supra), including the decisions relied on by the learned counsel for the Opposite Party No. 2 (Supra), I am constrained to hold that there is no force in this application under Section 482 of the Code of Criminal Procedure. It is accordingly rejected. 20. Since the proceedings are yet to start, I decline to go into the merits of the case since expressing any view either way would gravely prejudice the case of the accused/petitioners or the prosecution. 21. The interim order, if any, passed by this court is consequently vacated. 22. Criminal Section is directed to send a copy of this judgment to the concerned Magistrate/Trial Court forthwith for information and necessary action. 23. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned counsel for the parties upon compliance of all formalities.