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2024 DIGILAW 1430 (CAL)

Goutam Prasanna Kar v. State of West Bengal

2024-08-12

SUVRA GHOSH

body2024
JUDGMENT : Suvra Ghosh, J. 1. The short point which falls for consideration before this Court is whether the petitioner has the legal sanction of seeking quashing of G.R. case being no. 3304 of 2021 pending before the Learned Chief Judicial Magistrate, Tamluk, Purba Medinipur for the second time after such prayer made by him was turned down by this Court in CRR 531 of 2022 earlier. 2. The private opposite party who is the wife of the petitioner lodged a complaint against him alleging that the petitioner co-habited with her on a false promise to marry her. Both the families agreed to the said proposal and negotiated the marriage. The parties travelled to various places together and were in constant touch with each other which include physical relationship and they also visited each other’s house. The petitioner went abroad on an assurance that the marriage will take place upon his return to India. Later, the petitioner discontinued all contacts with the opposite party and has thereby failed to keep his promise. The case was registered against the petitioner under sections 376/417 of the Indian Penal Code. The petitioner and his family members who were arraigned as accused in the criminal case filed two separate applications being CRR 531 of 2022 and CRR 451 of 2022 respectively praying for quashing of the proceedings. During pendency of the applications, joint applications were made before the Court seeking disposal of the cases on the ground that the dispute between the parties was amicably settled and a compromise was arrived at by and between the parties. Reports were called for by the Court from the Inspector-in-charge of the concerned police station upon ascertaining whether a voluntary statement was recorded, the grounds for settlement and whether by virtue of such settlement the future of the de-facto complainant/victim would be protected or not. Upon perusal of the report submitted by the police, this Court allowed the revisional application filed by the family members of the present petitioner, being CRR 451 of 2022 by a judgment delivered on 29th November, 2022 upon observing that the de-facto complainant gave a written declaration that she did not want to proceed with the case against the said family members (petitioners in CRR 451 of 2022) and no ingredient of offence under sections 376/417 of the Indian Penal Code was found against them. On the same day, this Court dismissed the revisional application filed by the petitioner, being CRR 531 of 2022 on a finding that the consent of the de-facto complainant before establishing physical relationship was based on “mis-conception of fact” and amounts to no consent at all. The Court directed the criminal proceeding to continue against the petitioner. 3. In the present revisional application, the petitioner seeks quashing of the said proceedings upon subsequent change in facts and circumstances of the case. 4. Learned counsel for the petitioner has submitted that the de-facto complainant/private opposite party has changed stance at every stage of the proceeding. In the complaint initiated against the petitioner, she has alleged that the petitioner was engaged in physical relationship with her on false assurance of marriage. She also stated that the marriage was decided upon consent of both the families and the parties travelled to various places together and also had visiting terms with each other. According to the private opposite party, the date of the marriage could not be fixed due to the covid-19 pandemic and the petitioner left the country for his job on an assurance that he would marry her after returning to India. Thereafter the marriage was called off by the petitioner and his family who discontinued all contacts with the private opposite party. 5. During investigation, the petitioner refused to be medically examined and the charge sheet discloses her statement that the parties settled the dispute amicably and the private opposite party gave a written declaration that she did not want to proceed with the case against the petitioner and his family members. 6. The private opposite party stated on oath that the matter was compromised/amicably settled between the parties. 7. In the earlier revisional application, this Court did not consider the mutual settlement and dismissed the revisional application on merits. The present application has been filed after submission of charge sheet and can be dealt with afresh irrespective of the earlier decision of this Court due to subsequent change in the facts and circumstances of the case. 8. 7. In the earlier revisional application, this Court did not consider the mutual settlement and dismissed the revisional application on merits. The present application has been filed after submission of charge sheet and can be dealt with afresh irrespective of the earlier decision of this Court due to subsequent change in the facts and circumstances of the case. 8. Learned counsel has placed reliance on section 4(1)(a) of The Oaths Act, 1969 and the authorities in Pramod Suryabhan Pawar v/s. State of Maharashtra and Another reported in (2019) 9 Supreme Court Cases 608, Superintendent and Remembrancer of Legal Affairs, West Bengal v/s. Mohan Singh and Others reported in (1975) 3 Supreme Court Cases 706, Anil Khadkiwala v/s. State (Government of NCT of Delhi) and Another reported in (2019) 17 Supreme Court Cases 294 and Sagnik Dey v/s. State of West Bengal and Another reported in 2023 Supreme Court Cases OnLine Cal 1043 in support of his contention. 9. In refuting the argument canvassed on behalf of the petitioner, learned counsel for the private opposite party has submitted that the application is not maintainable since the earlier application filed on the same issue has been disposed of by this Court on merits. Considering the present application afresh shall amount to reviewing the earlier order of this Court which is not permissible in law. All the material which is part of the present application was before the Court when the earlier application was disposed of and subsequent submission of charge sheet does not amount to a change in circumstances of the case which may call for a fresh consideration. Learned counsel has placed reliance upon the authorities in Mohammed Zakir v/s. Shabana and Others reported in (2019) 2 Supreme Court Cases (Cri) 634, State represented by DSP, SB, CID, Chennai v/s. K.V. Rajendran and Others reported in (2008) 3 Supreme Court Cases (Cri) 600 and Bhisham Lal Verma v/s. State of Uttar Pradesh and Another reported in Special Leave Petition (Crl. no. 7976 of 2023 in support of his contention. 10. Speaking for the State, learned Public Prosecutor has submitted that in the revisional application pertaining to the family members of the petitioner, being C.R.R. 451 of 2022, the family members were exonerated on two counts:- First, there was no ingredient of offence under sections 376/417 of the Indian Penal Code against them. 10. Speaking for the State, learned Public Prosecutor has submitted that in the revisional application pertaining to the family members of the petitioner, being C.R.R. 451 of 2022, the family members were exonerated on two counts:- First, there was no ingredient of offence under sections 376/417 of the Indian Penal Code against them. Second, a mutual settlement was arrived at between the parties. In C.R.R. 531 of 2022 which is the earlier application filed by the petitioner, this Court took note of the police report with regard to the amicable settlement as well as merits of the case and dismissed the application on both counts. Consideration of the issues which were set at rest in the earlier application is barred under section 362 of the Code of Criminal Procedure which restricts the Court from altering or reviewing a judgment or final order disposing of a case except to correct a clerical or arithmetical error. Since this Court has held earlier that a prima facie case has been made out against the petitioner, there is no scope for reconsideration of the same in the present application. Submission of charge sheet cannot be treated as a change in circumstances of the case and there is no scope for a fresh consideration of the issues which have already been decided by this Court in the earlier application. Learned counsel has placed reliance on the authorities in Gian Singh v/s. State of Punjab and Another reported in (2012) 10 Supreme Court Cases 303, Criminal Appeal arising out of SLP (Crl) no. 1132-1155 of 2022, (2008) 04 Cal CK 0094 and a judgment delivered by the Hon’ble Supreme Court of Judicature at Bombay in criminal writ petition no. 1721 of 2016 in support of his contention. 11. I have considered the rival contention of the parties and the material on record. 12. At the outset, it shall be useful to reproduce section 362 of the Code of Criminal Procedure. “362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 13. “362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 13. In the present case, this Court considered the issue on merits and dismissed the earlier revisional application filed by the petitioner with an observation that the criminal proceedings against the petitioner shall continue. It is submitted on behalf of the petitioner that in view of submission of charge sheet after the said order was passed, there has been a change in circumstance of the case which is a good reason for consideration of the same prayer afresh. 14. Dealing with the grounds for consideration of a fresh application under section 482 of the Code (section 561A in the earlier Code) after rejection of a similar application earlier the Hon’ble Supreme Court, in the authority in Superintendent and Remembrancer of Legal Affairs (supra) has observed as hereunder:- “The earlier application which was rejected by the High Court was an application under Section 561A of the Code of Criminal Procedure to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561A to quash the proceeding. It is difficult to see how in these circumstances, it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application.” In other words, the facts and circumstances of the case were different from what they were at the time of the earlier application since there was no progress in the matter for a period of about one and a half years after dismissal of the earlier application. The authority in Anil Khadikiwala (supra) echoes the said proposition. 15. The present case can be distinguished from the case under reference. The authority in Anil Khadikiwala (supra) echoes the said proposition. 15. The present case can be distinguished from the case under reference. Herein, the application has been filed only on the ground that charge sheet has been submitted after dismissal of the earlier application which is construed as a change in circumstance. It is not the case of the petitioner that there has been no progress in the matter since dismissal of the earlier application. 16. At this juncture, I am tempted to refer to the authority in Virupakshappa Gouda v/s. State of Karnataka and Another reported in (2017) 5 Supreme Court Cases 406 wherein the Hon’ble Supreme Court has discussed the issue whether submission of charge sheet amounts to change of circumstance. The Hon’ble Court has held that filing of the charge sheet does not in any manner lessen the allegations made by the prosecution and in fact establishes that after due investigation the investigating agency, having found material, has placed the charge sheet for trial of the accused persons. The judgment demonstrates that submission of charge sheet cannot be construed as a change of circumstance. Though such observation was made in connection with an application for grant of bail, the same logic applies in the present case too. 17. The issue has been dealt with by the Hon’ble Supreme Court in Bhisham Lal Verma (supra) wherein the Hon’ble Supreme Court has held that it is not open to a person aggrieved to raise one plea after the other by invoking the jurisdiction of the High Court under section 482 Cr.P.C. though all such pleas were very much available even at the first instance. The Hon’ble Court has also held that inherent jurisdiction under section 482 cannot be invoked to override the bar of review under section 362 Cr.P.C. and such inherent power cannot be exercised for doing that which is specifically prohibited by the Code of Criminal Procedure. The said proposition has also been elaborately discussed in the authorities in State represented by DSP, (supra) and Mohammed Zakir (supra). The petitioner and the State have placed reliance on authorities which deal with applications under section 482 of the Code which were considered on merits. 18. In the case in hand, the earlier application filed by the petitioner has been dismissed on merits and the present application does not contain any material which calls for a fresh consideration. The petitioner and the State have placed reliance on authorities which deal with applications under section 482 of the Code which were considered on merits. 18. In the case in hand, the earlier application filed by the petitioner has been dismissed on merits and the present application does not contain any material which calls for a fresh consideration. The averments made in the present application were made in the earlier application too. Also, there is no change in the facts and circumstances of the case after dismissal of the earlier application which requires a revisit into the matter. 19. It is pertinent to mention that the records speak of a talk of compromise between the parties and the complainant/opposite party gave a written declaration at that time that she did not want to proceed with the case any further. Learned counsel for the State has drawn the attention of the Court to the authority in Gian Singh (supra) wherein the Hon’ble Supreme Court has held that in respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC, the settlement between the offender and the victim can have no legal sanction at all. 20. In this case, the report submitted by the investigating authority with regard to the mutual settlement between the parties was taken into consideration by this Court following which the family members of the petitioner were exonerated. The report was not favourably considered in so far as the petitioner was concerned. At this stage, since the private opposite party has vehemently opposed fresh consideration of the revisional application and also, since she has not insisted upon the mutual settlement, it can be inferred that she is no longer ready and willing to settle the issue amicably with the petitioner. Therefore the question of quashing of the proceeding on the ground of the mutual settlement does not arise. The petitioner is not entitled to a favourable order merely on the ground of alleged prevarication of the private opposite party at different stages of the proceeding. 21. In the said backdrop, I am inclined to hold that the application is barred under section 362 of the Code of Criminal Procedure and is liable to be dismissed. 22. Accordingly, C.R.R. 4412 of 2023 is dismissed. 23. The connected application being C.R.A.N. 1 of 2024 is also disposed of. 24. 21. In the said backdrop, I am inclined to hold that the application is barred under section 362 of the Code of Criminal Procedure and is liable to be dismissed. 22. Accordingly, C.R.R. 4412 of 2023 is dismissed. 23. The connected application being C.R.A.N. 1 of 2024 is also disposed of. 24. The proceeding being G.R. case no. 3304 of 2021 pending before the learned Chief Judicial Magistrate, Tamluk, Purba Medinipur shall continue against the petitioner. 25. There shall however be no order as to costs. 26. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.