Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 773 (CAL)

Vishal Popat v. Manish Badani

2014-08-14

JOYMALYA BAGCHI

body2014
JUDGMENT Joymalya Bagchi, J. Proceeding in Case No. 7451 of 2013 pending before the learned Judicial Magistrate, 4th Court at Alipore, South 24-Paraganas under Sections 323/341/504/34 of the Indian Penal Code has been assailed. The learned advocate of the petitioners submits that the impugned proceeding is a product of malice and vengeance instituted at the behest of the opposite party. It is submitted that Mr. Pravin Popat, the father of the petitioner no.1 and 2, had attempted to resolve a matrimonial dispute between opposite party and his estranged wife. Under such arrangement, a certain sum of money was handed over to the wife of the opposite party on the understanding that she would agree to divorce by mutual consent and withdraw the criminal case instituted by her against opposite party being Behala P.S. Case No. 476 of 2011 dated 26.9.2011 under Sections 498A/406 of the Indian Penal Code. However, the wife of the opposite party for reasons best known to her did not withdraw the said criminal case. As a result, the opposite party bore a grudge against Pravin Popat and his family members viz. the petitioners herein. In retaliation, opposite party has unleashed a series of criminal cases against Pravin Popat. All such cases ended in closure reports. The particulars of the said cases are as follows: (a) Behala P.S. Case No. 491 dated 7.10.2011 correspnding to ACGR 1424 of 2011 against Pravin Popat which ended in a final report No. 6 dated 1.2.2012. (b) Behala P.S. Case No. 90 dated 3.3.2012 which culminated in a final report No. 88 dated 7.7.2012. (c) Behala P.S. Case No. 497 dated 2.11.2012 against Provin Papot which also ended in a final report No. 11 dated 19.3.2013. Being unsuccessful in respect of the aforesaid proceedings initiated against the said Pravin Popat, father of petitioner Nos.1 and 2, the opposite party has presently lodged the impugned false and vexatious proceeding against the petitioners, who are his family members. It is further submitted that the allegations in the petition of complaint are patently absurd and inherently improbable and even the womenfolk of the family have not been spared. Learned counsel for the opposite party submitted that the allegations in the petition of complaint disclose the essential ingredients of the alleged offences. He further submitted that the opposite party was assaulted by the petitioners and medically treated. Learned counsel for the opposite party submitted that the allegations in the petition of complaint disclose the essential ingredients of the alleged offences. He further submitted that the opposite party was assaulted by the petitioners and medically treated. Hence, no interference with the proceeding is called for at the initial stage. I have examined the petition of complaint. It has been alleged therein that on 18.9.2013 at about 9.00 P.M. while the opposite party was marketing at Jadu Babur Bazar, petitioners restrained him on the street and started to hurl abusive and insulting languages. Upon protest, the petitioners manhandled him with slaps and pushes. It is also alleged that the opposite party was treated at M.R. Bangur Hospital and the matter was reported to the local police station and also before the Deputy Commissioner of Police, South Division on 19.9.2013. The learned Magistrate took cognizance of the alleged offences and after examining the opposite party on solemn affirmation issued process against the petitioners. Mr. Banerjee, learned counsel appearing for the petitioners, submits that the impugned petition of complaint is a product of malice and has been instituted to wreck vengeance upon the petitioners who are the family members of Provin Popat against whom the opposite party nurses a grudge. It is further submitted that the allegations in the petition of complaint when read with the initial deposition, do not disclose the essential ingredients of the offence and the same is liable to be quashed. Learned counsel for the opposite party submitted that no interference at this preliminary stage is called for. I find that there is a long standing enmity between opposite party and Provin Popat, who is a near relation of the petitioners. A series of criminal cases were instituted by opposite party against Provin Popat which ended in closure reports. Hence, it is submitted that opposite party has falsely implicated the petitioners in the impugned criminal case. Enmity is a double edged sword. On one hand, it may be a ground for instituting a false prosecution while on the other it may be the justification for commission of offence. In this backdrop, I have examined the allegations in the complaint and other materials on record. I find that prima facie there are allegations of assault in the petition of complaint. Hence, I am loath to quash the impugned proceeding at this stage. In this backdrop, I have examined the allegations in the complaint and other materials on record. I find that prima facie there are allegations of assault in the petition of complaint. Hence, I am loath to quash the impugned proceeding at this stage. I, however, note that learned Magistrate issued process on the basis of solemn affirmation of the complainant alone. No effort was made to seek verification/corroboration of his version from other witnesses including medical evidence. This issue assumes importance in view of the past history of acrimonious relationship between the opposite party and the family of the petitioners. As a result whereof a series of false cases had been instituted against Pravin Popat (father of petitioner nos.1 & 2) by the opposite party. Bearing in mind the aforesaid back ground, in my opinion, it is prudent to direct the learned Magistrate to conduct further investigation/enquiry under Section 202 of the Code of Criminal Procedure by an independent agency into the veracity of the allegations in the petition of complaint prior to issuance of process against the petitioners. One cannot lose sight of the fact that institution of criminal proceeding against an individual is a serious matter and ought not to be launched on the self version of a complainant when there is an established antecedent of animus between the complainant and the family members of the petitioners. Accordingly, I set aside the order issuing process against the petitioners and remand the matter to the learned Magistrate to conduct further enquiry under Section 202 of the Code of Criminal Procedure by referring the matter for investigation through a superior Police Officer who shall enquire into the allegations in the petition of complaint and file a report before the Magistrate in accordance with law. The enquiry shall be concluded within 60 days from the date of communication of this order and thereupon the learned Magistrate shall take decision as to whether there is sufficient ground to proceed against the petitioners in the instant case. I clarify that in course of such investigation/enquiry, opposite party would be at liberty to adduce his evidence before the enquiry officer and the enquiry officer shall duly receive and verify the same in accordance with law. With the aforesaid directions, the revisional application is disposed of.