Amit Chowdhury @ Madhav Chowdhury v. State of West Bengal
2015-05-06
SHIB SADHAN SADHU
body2015
DigiLaw.ai
JUDGMENT : Shib Sadhan Sadhu, J. The petitioner, by means of the present petition under Section 482 of the Code of Criminal Procedure, 1973 seeks to quash the entire proceedings arising out of Belur P.S. Case No. 135 of 2014 dated 06.05.2014 under Sections 387/120B of the Indian Penal Code pending before the Court of Learned Chief Judicial Magistrate, Howrah. 2. An FIR was lodged by Somdeb Bandyopadhyay, Inspector of Police, Detective Department, Howrah City Police against two accused, accused No. 1 being the petitioner herein on 06.05.2014 for the offence punishable under Sections 387/120B of the Indian Penal Code. As per the F.I.R. a petition from an anonymous person regarding extortion of huge amount of money from businessmen of Howrah area who were engaged in purchase of railway scrap iron was received and in course of enquiry it was revealed that the present petitioner and the co-accused have been regularly extorting money from businessmen dealing in iron scrap purchases from Indian Railways by putting them in fear of their life over telephone engaging some local people and a few businessman as their accomplice. Such activity has been going on since the year 2007 after the murder of one iron trader Kishan Moni Jain in Howrah (ref: Bally P.S. Case No.18/07 dated 23.01.2007 under Sections 302/120B IPC and 25/27 Arms Act). That case ended in acquittal for lack of witnesses against the criminals. It was further revealed that a part of the money collected by extortion is used in running fake currency business. It was further learnt that five other cases on the charge of murder and attempt to murder are pending against the present petitioner. On the basis of such materials the said Inspector lodged a suo moto complaint and the aforesaid case was registered. Thereafter, in course of investigation sufficient evidence could be collected against the FIR named accused namely the present petitioner and thereafter, the Investigating Officer submitted a prayer before the Learned Chief Judicial Magistrate, Howrah for issuance of a production warrant for producing the petitioner/accused who is now lodged in Sitamarhi District Correctional Home in connection with Dumra P.S. Case No. 182 of 2005 under Section 25(i)(d) of the Arms Act. On 18.06.2014 on the basis of such prayer and on perusal of the materials on record the Learned Chief Judicial Magistrate, Howrah issued the production warrant fixing 02.07.2014 for production of the petitioner/accused.
On 18.06.2014 on the basis of such prayer and on perusal of the materials on record the Learned Chief Judicial Magistrate, Howrah issued the production warrant fixing 02.07.2014 for production of the petitioner/accused. Feeling aggrieved against the same the present petition under Section 482 of the Cr.P.C. was filed by the petitioner. 3. Mr. Debasish Roy, Learned Counsel appearing on behalf of the petitioner contended that the impugned order issuing production warrant against the petitioner was passed without application of mind and in a very mechanical manner. The Learned Magistrate failed to appreciate that the FIR does not make out any prima-facie offence punishable under Sections 387/120B of the IPC. MR. Roy further contended that the Learned Magistrate ought to have satisfied himself that the FIR and the prayer discloses any offence for which the accused must be summoned to answer the charges but in the instant case nothing sort of this has been disclosed. He contended yet further that the complaint was lodged by police on the basis of some information and it is solely on the basis of surmise and conjecture. Such complaint does not mention as to when and on which date the accused committed the offence or attempted to commit the offence for which the police thinks that the personal liberty of the accused which is his fundamental right could be infringed. The Learned Magistrate was under obligation to be satisfied prima facie that the accused could be involved in commission of the alleged offence and that his presence during investigation is required. Therefore, according to him the initiation of the proceeding is bad in law and is liable to be set aside/quashed. 4. Mr. Ayan Basu, Learned Counsel appearing for the State on the contrary submitted that from the contents of the FIR and the case diary statements, a prima facie case of extortion as defined in Section 387 of the IPC and also a case of Criminal conspiracy as defined in Section 120B of the IPC is made out. Referring to the statements of witnesses including the victims recorded during the investigation he submitted that it becomes very much clear that the present petitioner/accused is the kingpin of the racket/syndicate which collects money from the businessmen of Howrah who take part in auction of railway scrap materials by putting them in fear of death.
Referring to the statements of witnesses including the victims recorded during the investigation he submitted that it becomes very much clear that the present petitioner/accused is the kingpin of the racket/syndicate which collects money from the businessmen of Howrah who take part in auction of railway scrap materials by putting them in fear of death. Not only that previously two such businessmen were shot dead in broad day light as they refused to yield to the demand of the extortionists. Therefore, no interference is warranted and the petitioner would be at liberty to raise defences available to him under the law in the Trial Court. His defence cannot be considered at this stage. He further argued that although while considering the application for quashing of the First Information Report the allegations made therein and the materials collected during the course of investigation are required to be considered but truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. He, however, fairly submitted that the Learned Magistrate should have recorded some more reasons in his order but that alone is not sufficient to assail such order. 5. I have considered the rival contention and submission advanced by the Learned Counsel for the parties and perused the entire materials available on record. I have also gone through the case diary carefully. 6. At the very outset I would like to say that the object of First Information Report from the point of view of the Informant is to set the Criminal Law in motion. From the point of view of the Investigating Authorities it is to obtain information about the alleged Criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. Further it is well settled point of law that a First Information Report which sets the process of law in motion can come from any quarters, even anonymous sources and that it is not an encyclopedia of the entire prosecution case but only a starting point that alerts the investigating machinery into the process of probe the result of which will be evaluated by the Court. Therefore, considering the instant FIR in the light of the aforesaid principles of law no fault can be found with it.
Therefore, considering the instant FIR in the light of the aforesaid principles of law no fault can be found with it. It is very much specific and clear alleging commission of the alleged offence by the present petitioner and another co-accused. That being so it cannot be said that the Learned Magistrate committed any error or illegality in issuing the production warrant against the petitioner/accused. 7. A Division Bench of the Hon'ble Allahabad High Court held in the case of Bobby @ Premveer & Anr. v. State of U.P. reported in 2000 Cri L J 4125 that the provisions of Section 267 of the Cr.P.C. are applicable during investigation. It was further observed by Their Lordships that a Hardened criminal may get himself confined to jail in another offence and the Investigating Officer of the concerned crime, in which the accused may be wanted, shall be running from pillar to post without being able to secure the custody of the accused. Examination during the course of the investigation or for holding Test Identification Parade, or getting some discoveries made at his instance under Section 27 of the Indian Evidence Act or for getting handwriting, finger prints or measurements of the accused, or get some other test done which is permissible in law, may be some of the reasons for obtaining 'B' Warrant/Transit warrant/Transfer warrant or by whatever name the order of the concerned criminal Court may be called, by the Investigating Officer/prosecutor. 8. In Amit Kapoor v. Ramesh Chander & Anr. reported in (2013)1 SCC (Cri.) 986: (2012) 9 SCC 460 , the Hon'ble Supreme Court has laid down that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.
Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave errors that might be committed by the Sub-ordinate Courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine where there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. If the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. 9.
The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. 9. Examining the contentions raised by the Learned Counsel for the parties in the light of principles enumerated in the aforesaid decisions in order to find out whether a case of quashing of the criminal proceeding constituted upon FIR is made out so as to warrant interference by this Court invoking inherent power under Section 482 of the Code, I find that the entire allegations against the petitioner as stated in the written complaint and the case diary statements as placed on record, reveal that the petitioner along with co-accused have been running a syndicate extorting money regularly from businessmen dealing in iron scrap purchases from Indian Railways by putting them in fear of life over telephone engaging some local people and a few businessmen as their accomplice. Therefore, it is evident that there are sufficient materials which establish prima facie commission of an offence. 10. It is needless to mention that the defence taken by the petitioner relates to disputed facts truthfulness of which cannot be determined at this stage and it is for him to establish such defence by leading cogent evidence at the time of trial. 11. It is settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction under Section 482 of the Cr.P.C. Since the foundation of criminal offence is laid against the accused/petitioner for the offence complained of against him under the Indian Penal Code, therefore, this Court is of the opinion that, prima facie, offence under the Indian Penal Code is made out against the petitioner. 12. Inherent jurisdiction under Section 482 of Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. 13. For the reasons aforesaid, the instant Revisional Application stands dismissed. No order as to costs. 14. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.