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2013 DIGILAW 821 (CAL)

Atashi Barua v. State of West Bengal

2013-11-08

ASIM KUMAR MONDAL

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Judgment : Asim Kumar Mondal, J. This is an application under Section 482 of the Code of Criminal Procedure praying for quashing of proceedings being complaint case No. 4426/2002 (T.R. 1936/2002) under Section 380/457/427 of the Indian Penal Code and all orders passed therein including the order dated August 14th, 2012 passed by the Additional Sessions Judge, 2nd Court, Alipore, South 24 Parganas, thereby dismissing criminal motion No. 407/2011 and affirming orders dated February 25th, 2011 and June 16, 2011 passed by the learned Judicial Magistrate, 8th Court, Alipore, South 24 Parganas. The opposite party No. 2 Satyajit Roy filed one complaint before the Court of learned Sub-Divisional Judicial Magistrate at Alipore being No. C. 4426/2002 against the present petitioners alleging that he runs “the institute of export management” situated at 46/2, Gariahat Road, Top Floor, Kolkata – 700029 under P.S. Gariahat. The opposite party No. 2 is a tenant in respect of three bed rooms including toilet on the top floor of the said premises under petitioner Nos. 1 and 2. It is alleged that there is a dispute between the parties over the said tenancy right and the petitioner are trying to vacate the said premises by creating pressure on the opposite party No. 2. On August 20, 2002 when the opposite party No. 1 along with witnesses Nos. 1, 2 and 3 as mentioned in the complaint came to the office and found that petitioner No. 1 with the help of petitioner No. 2 and 3 with an ulterior motive have fixed an iron gate locked the same from inside as they cannot enter into the room which are in their possession. The witness No. 1 – 3 of the complaint came and thereafter the opposite party NO. 2 went to P.S. and lodged a written complaint. One S.I. came at the place of occurrence along with others and asked the present petitioners to open the padlock and thereafter the opposite party No. 2 could enter into the tenanted portion and found that some articles are lying in the room of the opposite party No. 2 and other valuable articles are missing worth Rs. About 1.5 lakhs. The chamber of the opposite party No. 2 was bolted from inside and after opening the said chamber it was found that the said room was ransacked. About 1.5 lakhs. The chamber of the opposite party No. 2 was bolted from inside and after opening the said chamber it was found that the said room was ransacked. The opposite party No. 2 made an inventory of the loss and damaged articles and submitted a written complaint before Police. The police did not investigate into the matter. Thereafter the opposite party No. 2 filed the complaint before the learned Sub-Divisional Judicial Magistrate at Alipore against the present petitioners alleging commission of offence under Section 380/446/448/453/457/427/34 of Indian Penal Code. The said complaint was transferred to the 8th Court of Judicial Magistrate at Alipore. Learned Judicial Magistrate vide order dated February 25, 2011 after hearing both sides rejected the petition filed by the present petitioners for discharging them from the charges as alleged. Learned Magistrate fixed on June 16, 2011 for consideration of charge. The order of consideration of charge fixed on June 16, 2011 was recalled as the same was passed through oversight. Again date was fixed on September 1, 2011 for charge. The petitioners preferred a criminal motion being No. 407 of 2011 under Section 397/399 of the Criminal Procedure Code challenging the legality and correctness the orders dated February 25, 2011 and June 16, 2011 passed by learned Judicial Magistrate, 8th Court, Alipore in complaint case No. 4426/2002. The learned Additional Sessions Judge, 2nd Court at Alipore rejected the criminal motion on contest and affirmed the above impugned orders. Being aggrieved and dissatisfied with the said order of dismissal of criminal motion being No. 407 of 2011 as well as the orders dated August 14, 2012 the petitioners who are the accused persons of the complaint case has preferred the present revisional application for quashing of the proceedings being complaint case No. 4426 of 2012.On the grounds that the complaint is vague. It does not show as to which accused has committed what offence and what is the exact role made by these petitioners in the commission of offence. Further on the ground that the allegation in the complaint even if believed to be true and taken in their entirety had been disclosed the essential ingredients of the offences as alleged. Finally, on the ground that the continuation of impugned proceedings will be clearly abuse of process of Court and as such is liable to be quashed. Further on the ground that the allegation in the complaint even if believed to be true and taken in their entirety had been disclosed the essential ingredients of the offences as alleged. Finally, on the ground that the continuation of impugned proceedings will be clearly abuse of process of Court and as such is liable to be quashed. It is the contention of the application under Section 482 of the Criminal Procedure Code filed by the present petitioners, is that in the evidence of the witnesses so adduced there is no whisper to indicate the identity of the miscreants. Neither the opposite party No. 2 nor the witnesses at any point of time disclosed before the learned Trial Court as to the offence of ransacking / theft took place either directly or with the aid of the petitioners and there is nothing on record to show that the petitioners are in any way related to the commission of said offences. There are no materials to indicate that the petitioners were the persons who have been identified by any one as the persons participating in the commission of alleged offences. That the ingredients of the offences as alleged in the complaint are not disclosed in the facts and circumstances of the present case. Considered the submissions of learned Counsel Mr. Utpal Ghosh appearing on behalf of the opposite party No. 2 and also considered the provisions as laid down under Section 482 and 401 of the Criminal Procedure Code as well as the provisions under Section 380/457/427 of the Indian Penal Code. It appears that the proceeding being complaint case No. 4426 of 2002 is at the stage of framing of charge. Learned Judicial Magistrate, 8th Court at Aliproe being satisfied with the prima facie case of the complainant and basing upon the materials on record vide order dated February 25, 2011 and after hearing both sides, fixed June 16, 2011 for consideration of charge and rejected the petition filed by the present petitioners praying for discharging them from the case. The petitioners preferred a revisional application challenging the legality and correctness of the order dated February 25, 2011 and June 16, 2011 passed by learned Judicial Magistrate, 8th Court at Alipore. The petitioners preferred a revisional application challenging the legality and correctness of the order dated February 25, 2011 and June 16, 2011 passed by learned Judicial Magistrate, 8th Court at Alipore. Learned Additional Sessions Judge, 2nd Court at Aliproe in disposing of the said criminal motion have been observed that orders under challenge passed by the learned Magistrate did not decide or touch the important rights or liabilities of the parties. As such both the orders being interlocutory in nature are not revisable. In the present revisional application some questions have been raised as to the validity and legality of the evidences adduced by the complainant and available in the record. It is also raised the question of identification of the present petitioners as accused and there is no evidence as to the role of each and every accused persons in commission of offences. At the stage of framing charges there is no scope in scrutinising the evidences, evaluating the statements of the witnesses and analysing the pros and cons of the complaint in details, unless and until the evidences at its face value and accepted in their entirety do not constitute the offences alleged. It is the duty of the Court under Section 482 of the Criminal Procedure Code to go into the merits of the evidence and appreciate correctly the documents but at the stage of framing charge meticulous consideration of offence and materials by the Court is not permissible. It is not the function of the Court to weigh the pros and cons to the prosecution case or to consider the necessity of strict compliance of the provisions which are considered mandatory and its effect of noncompliance. It would be done after trial is concluded. In exercising the jurisdiction under Section 482 of the Criminal Procedure Code to quash the proceedings, High Court should not appreciate the evidences inasmuch as it is the function of the Trial Court. In view of the prima facie case as made out by the opposite party NO. It would be done after trial is concluded. In exercising the jurisdiction under Section 482 of the Criminal Procedure Code to quash the proceedings, High Court should not appreciate the evidences inasmuch as it is the function of the Trial Court. In view of the prima facie case as made out by the opposite party NO. 2 in complaint case No. 4426/2002 under Section 380/457/427 of the Indian Penal Code and also in view of the fact that the orders passed by learned Judicial Magistrate dated February 25, 2011 and June 16, 2011 are interlocutory in nature and as such not revisable and also in view of the fact that the trial is at a very initial stage, I am of the view that the proceedings if so permitted to continue will not be the abuse of process as thereby some debatable issues raised in the complaint which should be dealt with by the learned Trial Court on appreciation of proper evidence. Thus the application under Section 482 of the Criminal Procedure Code is liable to be dismissed having no merit. Hence the criminal revisional application stands dismissed. The C.R.A.N. No. 282 of 2013 also dismissed being infractuous. The order of stay of all further proceedings granted by this Court vide order dated December 7, 2012 stands vacated. Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.