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2015 DIGILAW 178 (CAL)

Rabi Kanta Maity v. State of West Bengal

2015-02-25

SUBRATA TALUKDAR

body2015
JUDGMENT:- In this application numbered CRR No. 2394 of 2014, the petitioners, inter alia pray for quashing of G.R. Case No.550 of 2014 corresponding to Haldia Police Station Case No. 49 dated 17th of April, 2014 under Sections 448/506/34 IPC read with Section 3(x)(xv) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 1989 Act). Sri Himangsu De, learned senior counsel appearing for the petitioners submits that during pendency of CRR No. 2394 of 2014, charge sheet has been filed in connection with Haldia Police Station Case No. 49 of 2014. With the leave of this Court the charge sheet has been brought on record by way of a supplementary affidavit with copy served on learned counsel for the opposite parties. Advancing his argument on merit, Sri De submits that the alleged incident does not attract the provisions of Section 3 of the 1989 Act. He submits that the alleged incident occurred in the courtyard of the house of the complainant which is not a public place. In this connection he draws attention of this Court to the judgment of the Hon’ble Apex Court reported in (2009) 1 SCC (Cri) 446 in the matter of Gorige Pentaiah Vs. State of Andhra Pradesh & Ors. Further drawing the attention of this Court to paragraphs 5 and 6 of the judgment in Gorige Pentaiah (supra), Sri De points out that the Hon’ble Apex Court was pleased to take notice of the fact that in the entire complaint there is no mention of the fact that the accused intentionally insulted or intimidated with intent to humiliate the complainant in a public place. The Hon’ble Apex Court was further pleased to notice that the ingredients of the offence complained of having not been made out, the appellant was entitled to the relief of quashing of the pending criminal proceeding. In the alternative, Sri De makes the further submission that in the event this Court in exercise of its revisional and inherent powers is not inclined to quash the proceedings, including the order of the learned Magistrate dated 15th of December, 2014 taking cognizance of the charge sheet filed, in view of the bar under Section 18 of the 1989 Act the present petitioners do not have any scope to approach a competent Court for obtaining the relief of pre-arrest bail. In such view of the matter, Sri De submits that the order directing issuance of warrant of arrest against the present petitioners passed by the learned Magistrate on 13th of January, 2015 be recalled and the petitioners be directed to surrender before the learned Magistrate and co-operate in the trial. Vehemently opposing the submissions of Sri De, Sri Pratik Bhattacharya, learned counsel for the opposite party No.2-complainant submits that the present petitioners are liable to be proceeded against under Section 340 Cr.P.C. In this connection, he draws the attention of this Court to the statements made at paragraph 1 of CRR No. 2394 of 2014 in which it is claimed that the petitioner No.1 is a paralytic. Sri Bhattacharya, relying on contemporaneous photographs, seeks to demonstrate that the petitioner No. 1 is a healthy individual who is conducting his day-to-day activities. Distinguishing the judgment in Gorige Pentaiah (supra), Sri Bhattacharya submits that the ratio of the said judgment will apply only to the facts of that case. He points out that in the facts of the present case it is not in dispute that the opposite party no.2-complainant was in possession of the property in question in relation to which the civil suit is pending between the parties. He further submits that whether the alleged offence was committed in public view is a question of fact, which requires consideration in an open trial by the competent Magistrate. Learned counsel for the opposite party No.2-complainant makes the additional point that the present CRR was filed prior to the filing of the charge sheet before the learned Magistrate. Such charge sheet cannot be brought on record by filing a supplementary affidavit and may be the subject matter of challenge by way of a separate application. He emphasizes that from a bare reading of the complaint, it would be apparent that the offences complained of under the relevant Sections of the IPC and under Section 3 of the 1989 Act have been prima facie committed. Appearing for the State, Sri Subir Banerjee, learned Additional Public Prosecutor takes this Court to the statements of the neighbours as appearing from the case diary. The neighbours have stated that they have seen the petitioners in the courtyard of the house of the opposite party no.2-complainant. Appearing for the State, Sri Subir Banerjee, learned Additional Public Prosecutor takes this Court to the statements of the neighbours as appearing from the case diary. The neighbours have stated that they have seen the petitioners in the courtyard of the house of the opposite party no.2-complainant. Therefore, Sri Banerjee submits that the alleged offence was committed in public view attracting the mischief of the provisions of Section 3(1) of the 1989 Act. It is also not in dispute, according to Sri Banerjee, that the opposite party no.2-complainant and the members of his family belong to the Scheduled Caste. In support of this, he relies upon a caste certificate which appears at page 11 of the case diary. Learned counsel submits that the preponderance of the materials on record prima facie show that the offence has been committed thereby meriting an open trial. In the backdrop of the above discussion, this Court is sufficiently persuaded to notice that a prima facie case against the petitioners-accused has been made out requiring trial before the learned Magistrate. This Court is of the further opinion that the mischief of Section 3(1) of the 1989 Act is prima facie attracted in respect of the alleged offence committed by the petitioners-accused. The Hon’ble Apex Court has observed in a catena of judgments that the inherent power of this Court cannot be exercised to stifle a legitimate prosecution. In the light of the above discussion the prayer for quashing of G.R. Case No. 550 of 2014 arising out of Haldia P.S. Case No. 49 dated 17th of April, 2014 pending before the learned Additional Chief Judicial Magistrate, Haldia is refused. CRR No. 2394 of 2014, accordingly stands rejected. In view of the dismissal of the revisional application being CRR No. 2394 of 2014, the application being CRAN 4073 of 2014 is also disposed of. There will be no order as to costs.