Calcutta High Court
Haranath Mukherjee And Ors. vs The State on 9 May, 1988
Equivalent citations: (1988)2CALLT304(HC)
JUDGMENT J.N. Hore, J.
1. This is an application under Section 401, read With, Section 482 of the Code of Criminal Procedure, for quashing the proceeding in G.R. Case No. 2396/78 pending before the Judicial Magistrate, 2nd Court, Asansol, under Section 148/149/323/354-380 of the Indian Penal Code and for setting aside the order of the learned Magistrate dated May 25, 1983 rejecting the petitioners' prayer for discharge.
2. Complainant Shibarani Kabiraj filed a complaint before the learned Sub-Divisional Magistrate at Asansol on 3.12.78 alleging, inter alia, that she was owner and in possession of a portion of premises No. 67 (old 70) Netaji Subhas Road, Asansol, by virtue of a sale deed executed in favour of her husband and registered on August 7, 1971. It was further alleged that the petitioners who had no manner of right, title, interest and possession in respect of the disputed premises collected a number of roughs and rowdies armed with deadly weapons, trespassed into the disputed premises, assaulted the complainant with lathi, molested her daughter, ransacked the room and took away cash of Rs. 1200 and ornaments weighing about 10 tolas on 26.11.78 at about 9.00 A.M. It was further alleged that the petitioners also made frantic efforts to oust them under threats and intimidation and the said incident was diarised at the local police station on, the date of occurrence.
3. On receipt of the petition of complaint, the learned Sub-Divisional Judicial Magistrate, Asansol, referred the same to the Asansol Police station for starting a case, treating it as the First Information Report and consequently, Asansol Police Station Case No. 15, dated December 8, 1978 was started.
4. On completion of the investigation, charge-sheet was submitted against the petitioners on December 31, 1978.
5. On May 6, 1983 the petitioners filed some documents before the learned Judicial Magistrate, 2nd Court, Asansol, to show that the prosecution story had no basis whatsoever inasmuch as delivery of possession in respect of the disputed property was given to the decree-holder Abani Nath Mukherjee, brother of petitioner No. 1 and uncle of petitioner Nos. 2 to 4, by the court's bailiff in execution of a writ issued by a Competent Civil Court and there was no question of trespass, unlawful assembly, intimidation and theft and prayed for their discharge from the case which was harassing. The learned Judicial Magistrate rejected the prayer holding that as per the provision of Section 239 of the Code of Criminal Procedure the police report and the documents sent under Section 173 of the Code could be considered and on consideration of the same, the learned Judicial Magistrate held that the petitioner No. 2 should stand trial under Sections 148/149/323/354/380/448 of the Indian Penal Code and the other petitioners should face trial under Sections- 148/149/323/380/448 of the Indian Penal Code. The learned Judicial Magistrate fixed July 30, 1983 for framing charge. Being aggrieved by the aforesaid prosecution of the petitioners and the aforesaid order of the learned Judicial Magistrate, the petitioners moved this court in revision and obtained the present Rule.
6. Mr. Roy, learned counsel for the petitioners, has urged that the petitioners obtained delivery of possession of the disputed premises through Court in execution of a decree passed by a Competent Civil Court and the impugned prosecution suppressing the material facts is a harassing one and the continuance of the said proceeding would be a mere abuse of the process of Court. Mr. Das, learned Advocate for the State, has not controverted the contention of Mr. Roy.
7. The petitioners have produced the certified copy of the writ of delivery of possession in T.Ex. Case No. 4 of 1978 of the Court of Additional Munsif, Asansol and the bailiff's return which goes to show that on 26.11.78 at 9.00 A.M. the bailiff showed the writ of delivery of possession to Vivekananda Kaviraj and complainant Shibrani Kaviraj, Judgment-debtor Nos. 1 and 6 respectively and asked them to vacate the suit-premises and deliver vacant possession to the decree-holder and upon their refusal the bailiff, with the help of the men of the decree-holder, removed the articles of the Judgment-debtors as per schedule and gave delivery of vacant possession of the suit premises to petitioner No. 3 who made the necessary endorsement in presence of witnesses. There is complete suppression of this fact of delivery of possession of the suit-premises to the petitioner by the court bailiff in execution of the writ of delivery of possession issued by a Competent Civil Court which makes the allegations of trespass, intimidation & theft untenable. There is no whisper of the alleged molestation of the daughter of the complainant in the diary lodged by the complainant on 26.11.78.
8. These special features of the case go to show that the Court has been sought to be utilised for an oblique purpose and the chances of an ultimate conviction are bleak. No useful purpose is likely to be served by allowing such a harassing criminal proceeding by the Judgment-debtor and the continuance of the impugned proceeding would be a mere abuse of the process of Court. The impugned prosecution is, therefore, liable to be quashed even at the preliminary stage. This view is fortified by the decision of the Supreme Court in Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao Angre and Ors. . The Supreme Court has observed as follows : "The legal position is well settled that when, a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
9. For the foregoing reasons, we allow the revisional application, quash the impugned proceeding against the petitioners and make the Rule absolute.
Sankar Bhattacharyya, J.
10. I agree.