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2025 DIGILAW 134 (CAL)

Kawaljeet Kaur v. State of West Bengal

2025-01-27

AJOY KUMAR MUKHERJEE

body2025
JUDGMENT : Ajoy Kumar Mukherjee , J. 1. The instant application has been directed by the petitioners seeking quashing of the proceeding of Basirhat P.S. Case no. 256 dated 03.06.2018 under section 384/389/34 of the Indian Penal code. The FIR maker/opposite party no.2 alleged in the F.I.R about extortion by putting her in fear of accusation of rape against her son. 2. On the basis of complaint aforesaid criminal proceeding was initiated and thereafter on completion of investigation police submitted charge sheet against the petitioners under section 384/389/34 of the Indian Penal Code and learned Magistrate was pleased to take cognizance of the offence alleged therein and further pleased to supply the copies to the accused persons under section 207 of the Code and the instant case is presently pending for framing of charges before the trial court. 3. Being aggrieved by the said proceeding, Mr. Jha learned Counsel appearing on behalf of the petitioners submit that on the alleged date of incident i.e. on 04.02.2018 the petitioner no.1 and the son of opposite party no.2 were sharing a cordial and healthy relationship and till that date, the proposal for marriage was not cancelled. The document revealed that on 04.02.2018 they were exchanging photograph of their rooms to finalize its decoration as appearing from the screenshot of chatting between the son of opposite party no. 2 and the petitioner no.1, which are made as annexure P2. 4. Thereafter relationship between the petitioner no.1 and the son of opposite party no.2 detoriated and the son of opposite party no.2 stopped all communication and denied to marry petitioner no.1. Petitioner no. 1 had made several attempts to contact the son of opposite party no. 2 but could not make any communication. Finding no other alternative on May, 27, 2018 the petitioner no. 1 lodged complaint with the Deputy Commissioner of Police New Delhi Interalia making allegation against the son of opposite party no. 2 under section 376/328/354/506/509 of the Indian Penal code. 5. After getting intimation about the written complaint the son of opposite party no. 2 immediately rushed to New Delhi and tried to persuade the petitioner no.1 to withdraw the case, as appearing from Whats App chats. 6. The brother of the opposite party no.2 also spoke with petitioner no.1 on May 27, 2018. 5. After getting intimation about the written complaint the son of opposite party no. 2 immediately rushed to New Delhi and tried to persuade the petitioner no.1 to withdraw the case, as appearing from Whats App chats. 6. The brother of the opposite party no.2 also spoke with petitioner no.1 on May 27, 2018. It further transpires from the register of Hotel, Cannaught Place, New Delhi, that on and after 25.05.2018 the son of opposite party no. 2 went to New Delhi, which is immediately before and after lodging of complaint by the petitioner no.1. 7. The specific alibi taken by the petitioners is that on the date of alleged occurrence they were staying elsewhere as has been clearly reflected in the investigation report in the form of the charge sheet, in connection with Barakhmba P.S. case no. 58 dated 26.05.2018. 8. It reveals that the petitioner no. 1 along with her parents and brother remained present whole day at Kailana Khas Gurudwara on the alleged day i.e. on 04.02.2018 and discussed the Roka Ceremony with the priest but no Roka Ceremony had taken place on that day. The tower locations as well as the video recordings collected during investigation of Barakhamba Police Station, clearly goes to show that the son of the opposite party no. 2 met the petitioner no.1 between 25.05.2018 to 28.05.2018. 9. Mr. Jha strenuously argued that the statements/discussions/chats as well as the conduct of the son of opposite party no.2 after lodging of the complaint at Barakhamba Police Station itself goes to show that the present case is a false one and has been made out for wreaking vengeance and is a counterblast when the petitioner no.1 did not withdraw the case at New Delhi. He further submits that man may lie but the scientific evidences collected during investigation in the said case cannot be overlooked by the court. He further pointed out that the statements recorded under section 164 of the Cr.P.C. made by the witnesses are inconsistent with the FIR. Nowhere in the FIR it has been stated that the FIR maker had handed over any money to the petitioner. He further argued that the alleged date of occurrence is 04th February, 2018 but the complaint was lodged on 3rd June, 2018 which is after a lapse of four months and the delay itself shows the malafide intention of the opposite party no. He further argued that the alleged date of occurrence is 04th February, 2018 but the complaint was lodged on 3rd June, 2018 which is after a lapse of four months and the delay itself shows the malafide intention of the opposite party no. 2 Moreover, there are serious anomalies in the statements recorded under section 161 and 164 of Cr.P.C with that of the FIR. 10. Mr. Jha further contended in reply to the opposite party’s contention that prosecution/state has alleged that several notices were sent under section 41 of the Code but from the order dated 18th February, 2018 passed by the Apex Court, it appears that State could not show a single document to establish that any notice was served upon the petitioners and that was the reason why the Apex Court was pleased to direct the court below to release the petitioner no. 2 and 3 immediately. Mr. Jha further argued that there are recordings of CCTV Camera which show that the son of opposite party no. 2 met the petitioner no. 1 between 25.05.2018 and 28.05.2018 and that the son of opposite party no. 2 and other family members met the petitioner no.1 in New Delhi to withdraw the case lodged by her. Mr. Jha further argued while contradicting the argument raised by opposite party no.2 that the evidences referred by the petitioner in the present application are all scientific evidence/tower locations as well as transcription and as such they are very much admissible at this stage for considering the present application. Petitioners in this context relied upon the following judgments. (a) 1992 Supp (1) SCC 335, State of Haryana and others vs. Bhajan Lal and others. (b) 2023 SCC OnLine SC 947, Salib @ Shalu @ Salim V.s State of U.P and others. (c) (2020) 13 SCC 435 , Ahmad Ali Quraishi and another Vs. State of Uttar Pradesh and another. (d) (2012) 1 SCC (Cri) 73, Gajraj Vs. State (NCT of Delhi). (e) (2011) 3 SCC 351 , Harshendra Kumar D Vs. Rebatilata Koley and others. 11. Mr. Sandipan Gangully learned Counsel appearing on behalf of the private opposite party no.2 argued that the contents of the FIR palpably makes out a prima facie case under section 384 and 389 IPC against the petitioners. State (NCT of Delhi). (e) (2011) 3 SCC 351 , Harshendra Kumar D Vs. Rebatilata Koley and others. 11. Mr. Sandipan Gangully learned Counsel appearing on behalf of the private opposite party no.2 argued that the contents of the FIR palpably makes out a prima facie case under section 384 and 389 IPC against the petitioners. The investigating agency after conducting thorough investigation has submitted its report to the effect that the cognizable offence alleged against the petitioner in the FIR have been prima facie established and the accused persons have been sent up for trial. 12. Mr. Gangully further argued that though the petitioners in their argument have heavily relied on their plea of alibi to the effect that at the time of occurrence i.e. on 04.02.2018, they were at Rohtag in connection with Roka Ceremony and was never at the place of occurrence and to substantiate the same they have relied upon the findings made in Barkhamba Police Station case no. 58 dated 26.05.2018, but the plea of alibi is an afterthought and has been specifically manufactured by the petitioners after the initiation of the present proceeding. 13. Mr. Gangully further argued that the allegations made in the FIR of the instant case, as well as the material collected during investigation if taken at their face value and accepted in their entirety, prima facie constitute offence against the accused. The petitioners at the stage of the present proceeding for quashing cannot establish their case, placing reliance on documents collected by a different investigating agency in a different case i.e. Barkhamba Police Station Case no. 58 dated 26.05.2018. 14. Mr. Gangully further argued that though the petitioners specific case is that the present case is a malicious prosecution, as the son of opposite party no.2 is an accused in a criminal case, initiated by the petitioner no.1 but the documents sought to be relied by the petitioners to prove their contention of malicious prosecution are not forming part of the prosecution case and as such cannot be looked into. At this stage only the complaint and the accompaniments can be looked into to identify whether a prima facie case is made out or not. At this stage only the complaint and the accompaniments can be looked into to identify whether a prima facie case is made out or not. Similarly the contention of the petitioners that the present case is a counterblast to the proceeding initiated by the petitioner no.1 against the son of opposite party no.2 holds no water, as at this stage of quashing it is not for the High Court to enter into factual arena and decide whether the allegations are correct or whether the same are the counterblast to any proceeding initiated by the petitioner no.1. Accordingly opposite party no.2 has prayed for dismissal of the present application. 15. Mr. Nandy learned Counsel appearing on behalf of the State placed the Case Diary and submitted that there are sufficient grounds for proceeding against the accused persons, as appearing from the materials collected during investigation and as such it is not a fit case to quash the criminal proceeding invoking jurisdiction of this court under section 482 of the Code of Criminal Procedure. 16. I have considered submissions made by all the parties. 17. On perusal of the written complaint it appears that the sum and substance of the written complaint is that on 31.01.2018 at around 9:30 p.m. the opposite party no.2 received a phone call from the petitioners where they threatened opposite party no.2 that if she would fail to hand over Rs. 15 lakhs within 7 days they would lodge a false complaint of rape against her son and that they would come on 04.02.2018 to the house of the opposite party no.2 to obtain aforesaid Rs. 15 lakhs from her. The complainant after receiving such phone call, inform the entire incident to one Ratan Mondal who was the teacher of her son and she got frightened. Thereafter on 04.02.2018 at about 2:30 p.m one person, appears to be accused no. 3 illegally demanded said amount of money from her and she was forced to sign a blank stamp paper and at the time of departure also threatened her that the petitioner no. 1 would implicate her son with false criminal cases. It is also alleged in the FIR that the incident of threatening the opposite party no. 2 was witnessed by two of her neighbors who were present at the scene. The opposite party no. 1 would implicate her son with false criminal cases. It is also alleged in the FIR that the incident of threatening the opposite party no. 2 was witnessed by two of her neighbors who were present at the scene. The opposite party no. 2 initially being fearful of their loss of prestige in the society did not reveal the incident, but subsequently she lodged the written complaint. 18. Needless to say that in order to constitute an offence under section 384 of IPC the following ingredients are required to be established. (i) The accused puts a person in fear of injury to such person or any other person (ii) The putting of a person in such fear must be intentional (iii) The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security (iv) Such inducement must be done dishonestly 19. On bare perusal of the contents of the FIR, it is clear that a prima facie cognizable offence has been made out against the petitioners. The investigating agency after conducting investigation has submitted its report which also discloses that cognizable offence alleged against the petitioner in the FIR have been established and the accused persons have been sent up for trial. 20. Mr. Gangully learned Counsel appearing on behalf of the opposite party no.2 has also streesed that in the charge sheet the investigating agency has pointed out criminal antecedent of the petitioner no.1 about commission of offence of extortion earlier. 21. It is true that though there are no limits of the power of the court under section 482 of the Code but while dealing with such application, the court must apply the test as to whether the uncontroverted allegation as made in the FIR and also the materials in the Case Diary, prima facie establish cognizable offence against the accused person or not. In this context court is also to consider certainly whether the allegations made in the FIR or materials collected during investigation are absurd or inherently improbable to constitute cognizable offence or not. In this context court is also to consider certainly whether the allegations made in the FIR or materials collected during investigation are absurd or inherently improbable to constitute cognizable offence or not. As I have indicated above that the allegations, the materials placed on record does not indicate that the allegations made against the petitioners are so absurd and inherently improbable that on the basis of which no prudent person can even reach a just conclusion that there is no sufficient ground for proceeding against the petitioners. 22. In a catena of decisions the Apex Court have cautioned that at this stage the court cannot examine the fact evidenced and materials on record to determine whether there is sufficient materials on the basis of which the case would end in a conviction. On the contrary the court is concerned primarily with the allegation taken as a whole whether they will constitute an offence and whether continuance of the proceeding would be an abuse of the process of the court leading to injustice. 23. In the present context the petitioners have attacked the impugned proceeding contending that the petitioner no. 3 never came to West Bengal at any time as he had no occasion to come and as the custom of Roka ceremony was under way it was impediment on him to stay at home and as such the question of extorting money is totally false and fabricated. In order to substantiate such contention the petitioners heavily relied upon the findings made during investigation of another case being Barkhamba Police Station Case no. 58 of 2018, which goes to show that on the alleged date of incident i.e. 04.02.2018, the petitioner no.1 and the son of opposite party no.2 were sharing cordial and healthy relationship. The petitioners also heavily relied upon the finding made by the investigating officer in the said case where investigation reveals that the petitioner no.1 along with her parents and brother remain present whole day at Kailana Khas Gurudwara on the alleged day i.e. 04.02.2018 and discussed the Roka Ceremony with priest, though no Roka Ceremony had taken place on that day. The tower locations as well as the video recording collected during investigation in that Barkhamba Police Station case goes to show that the son of opposite party no.2 met the petitioner no.1 between 25.05.2018 to 28.05.2018. The tower locations as well as the video recording collected during investigation in that Barkhamba Police Station case goes to show that the son of opposite party no.2 met the petitioner no.1 between 25.05.2018 to 28.05.2018. Accordingly the petitioners have taken the specific plea of alibi and contended that on 04.02.2018, the question of extortion by the petitioners at the scene is not sustainable. 24. The other part of the petitioners argument is that son of opposite party no.2 and the petitioner no.1 met at Delhi on January 27, 2018 and the son of the opposite party no.2 forcefully had sex with petitioner no.1 by intoxicating her and thereafter refused to marry and for which the petitioner no. 1 lodged a complaint alleging offences under section 376/328/506/509 of the IPC which was registered as aforesaid Barkhamba Police Station case no. 58 dated 26.05.2018 and that out of malice, the opposite party no.2 has initiated the present proceeding by lodging the malafide complaint. 25. During the course of argument also the petitioner heavily relied upon the aforesaid plea of their alibi to the effect that at the time of occurrence of the alleged offence i.e. on 04.02.2018 they were at different place in order to discuss the Roka Ceremony of the petitioner no.1 with the son of opposite party no.2. In this context Mr. Gangully learned counsel appearing on behalf of the opposite party no.2 submits that it transpires from the contents of second supplementary charge-sheet that on 08.06.2018 the statement of the petitioner was recorded under section 164 Cr.P.C. wherein she has stated that their Roka Ceremony was schedule to be held on 20.02.2018 and he further pointed out from the second supplementary charge sheet that the petitioner no.1 subsequently deviated from her earlier statement and repeatedly alleged in her subsequent complaints dated 12.08.2019 and 16.08.2019 that her Roka Ceremony schedule to have taken place on 04.02.2018 at Rohtag, Haryana where her brothers and her parents were all present and accordingly Mr. Gangully argued that the plea of alibi have been created a year later in the Barkhamba Police station case to made it a defence. 26. Needless to say that the plea of alibi taken by the petitioners and heavily relied upon during hearing, is undoubtedly a pure question of fact. Gangully argued that the plea of alibi have been created a year later in the Barkhamba Police station case to made it a defence. 26. Needless to say that the plea of alibi taken by the petitioners and heavily relied upon during hearing, is undoubtedly a pure question of fact. Under the evidence Act the burden of that particular fact lies on the petitioners who wishes the court to believe its existence, unless it is proved by any law that the proof of that fact lies on any particular person. In this context illustration B to section 103 of the Evidence Act may be quoted which reads as follows: “B wishes the court to believe that at the time in question, he was elsewhere. He must prove it”. 27. In such view of the matter, if the petitioners want to rely the plea of alibi taken by them quoting from the investigation report in connection with a different case, they can very well do so by leading evidence before the trial court and in that case, prosecution will also have an opportunity to cross examine the witness in order to unearth the truth. As stated above, the allegations made in the FIR of the instant case as well as the materials collected during investigation, if taken at their face value and accepted in their entirety, it cannot be said that no prima facie cognizable offence has been disclosed or it does not make out any case against the petitioners. In fact while arguing their case for quashing the proceeding invoking jurisdiction under section 482 of the Code, petitioners have placed their defence case to be considered, in order to establish their case. They have placed reliance on documents collected by a different investigating agency in a different case that is Barakhamba Police Station case no. 58 dated 26.05.2018. 28. In a petition under section 482 Cr.P.C the High Court is not supposed to examine the findings on several disputed facts and thereby to allow the petition. The defence of the accused is to be tested after appreciating the evidence during trial and at this stage High Court is not required to go into the minute details on the allegations made by the petitioners. In Rajiv Kourav Vs. The defence of the accused is to be tested after appreciating the evidence during trial and at this stage High Court is not required to go into the minute details on the allegations made by the petitioners. In Rajiv Kourav Vs. Baisahab and others reported in (2020) 3 SCC 317 the Apex Court made significant observation in this context in para 8 which may be reproduced below :- 8. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge-sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. 29. In the said judgment the Apex Court further held that statements of witnesses recorded under section 161 Cr.P.C. being wholly inadmissible in evidence would not be taken into consideration by the court while adjudicating a petition filed under section 482 of the Cr.P.C. It was held in that judgment that the High Court committed error in quashing the proceedings by assessing the statements recorded under section 161 Cr.P.C. 30. In Chandan Dhawan Vs. Jaharlal reported in (1992) 3 SCC 317 it was observed by the Apex Court that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The court should not act while dealing with Application under section 482 Cr.P.C on annexures which cannot be termed as evidence without being tested and proved. 31. The court should not act while dealing with Application under section 482 Cr.P.C on annexures which cannot be termed as evidence without being tested and proved. 31. Therefore, on reading of FIR and the materials that are available in two voluminous case diary, it cannot be said that no case is made out against the petitioners, so as to quash the entire proceeding. 32. The other part of the allegation levelled by the petitioner, that the statements/discussions/whatsapp chats as well as the conduct of the son of the opposite party no.2 as well as the opposite party no.2 herself lodging of the complaint at Barkhamba Police Station, itself goes to show that the present case is a false one and has been made out for wrecking vengeance upon petitioners and is a counterblast as the petitioner no.1 did not withdraw the Barkhamba Police Station case. 33. In Jhandu Pharmaceutical Works Ltd. and Othes Vs. Md. Safiul Haque reported in (2005) 1 SCC 122 the ratio laid down by Apex Court is that the complaint has to be read as a whole and if it appears that on consideration of allegations in the light of the statement made on oath by the complainant, that the ingredients of the offence are disclosed and there is no materials to show that the complaint is malafide, frivolous or vexous, in that event there would be no justification for interference by the High Court. It was further held when an information is lodged at the police station and offence is registered, then the malafides of the informant would be of secondary importance. It is the material collected during the investigation and evidence laid in court which decides the fate of the accused persons. The allegations of malafide against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. 34. In the present case, it is true that there are serious allegations made against the son of the complainant by the opposite parties and they have been repeated with vehemence during the hearing but I am not supposed to examine them on merit. 34. In the present case, it is true that there are serious allegations made against the son of the complainant by the opposite parties and they have been repeated with vehemence during the hearing but I am not supposed to examine them on merit. Though the whole attitude in registering an offence and directing investigation into the offence has been questioned by the petitioners but I must point out that as the information lodged in the police station and as materials available in the case diary during investigation prima facie discloses cognizable offence against the petitioners, the malafide of the informant, if any shall be considered by Trial Court at the appropriate stage. In fact the documents sought to be relied on by the petitioners to prove their contention of malicious prosecution are personal in nature and the private documents are required to be tested during trial. Those documents are also not certified copy of public documents under section 76 of the evidence Act and are not part of the prosecution case by which court can come to a finding regarding the allegation of malicious prosecution. 35. It is settled law that at this stage only the complaint and the accompaniments are to be looked into, to come to conclusion whether a prima facie case of cognizable offence has been made out or not. The court is not supposed to conduct mini trial at this stage to evaluate the evidentiary value of those documents which is the duty casted upon the trial judge. For the limited purpose the court can evaluate materials and documents available in record but the court cannot appreciate the evidence, to conclude the complaint to be unacceptable. Accordingly though the contention of the petitioner is that the present case is a counterblast to the proceeding initiated by the petitioner no.1 against the son of opposite party no.2, but the court is not supposed to enter into that factual arena and decide whether the allegations are correct or not. 36. In view of aforesaid discussion I find nothing to conclude that the prosecution has been failed to make out any case against the petitioners to quash the entire proceeding. 37. CRR 1924 of 2018 thus stands dismissed. 38. 36. In view of aforesaid discussion I find nothing to conclude that the prosecution has been failed to make out any case against the petitioners to quash the entire proceeding. 37. CRR 1924 of 2018 thus stands dismissed. 38. However, while rejecting the contention of the petitioners so far quashing of the proceeding is concerned I give them liberty to raise all their defence as may be available to them in accordance with law at the time of framing of charge and at that stage the court shall consider the materials on record as also the contention raised by the petitioner in proper perspective and decide the matter in accordance with law. I also make it clear that the observation made herein would not be in any way shall be construed as the view of the High Court with regard to the merit of the case or the defence of the petitioners. Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.