Calcutta High Court (Appellete Side)
Biplab Kumar Chatterjee & Ors vs The State...... Opposite Parties on 5 March, 2010
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
C.R.R. No. 2314 of 2007
Biplab Kumar Chatterjee & Ors... Petitioners
Vs
The State...... Opposite Parties
For the Petitioner : Mr. Sandipan Ganguly
For the State : Mr. R. K. Ghosal
Heard on : 08.01.2010
Judgment on : 05.03.2010
RAGHUNATH RAY, J. :
On 10th April, 2002, Dola Dey, the wife of Sambhu Dey, a part- time sweeper of a computer centre attached to Konnagar Kalyan Parishad of Master Para lodged an FIR against the revisionist, the General Secreatary of Konnagar Kalyan Parishad, and Samik Dey, a computer teacher alleging inter alia that on 20th September, 2001 accused Sri Dey outraged her modesty while 1 the revisionist prevented her from calling the people. According to the informant, since there was a student strike none, except those two persons, was present on that date at the relevant point of time when she had been to the computer centre for sweeping the same. However, such written information was submitted in the P.S. after the lapse of more than six months when she was threatened and assaulted by some unknown miscreants at the instance of the afore-named two accused. Pursuant to such allegations Uttarpara P.S. Case No. 67 / 02, dated 10.04.02 under sections 354/323/309/34 IPC was registered against both of them.
2. The case was endorsed to S. I., Sri T. Ganguly for investigation. In course of investigation, I.O. visited the P.O. and examined as many as five witnesses. On perusal of materials collected by him he formed an opinion that a prima facie charge has been well-established and submitted charge- sheet under sections 323/354 IPC against them on 09.05.03 accordingly.
3. Feeling aggrieved by submission of such charge-sheet, the revisionist has preferred this application praying for quashing of the said charge-sheet. 2
4. Appearing on behalf of the revisionist Mr. Ganguly submits that the petitioner being a Senior Lecturer in Education, Vinaya Bhavan, Shantiniketan under Visva Bharati Central University, had to take classes there from Thursday to Tuesday every week. He also takes classes on every Wednesday as a Guest Lecturer at the Institute of Agriculture Science, Calcutta University. It is further submitted by him that on the day of alleged occurrence i.e. on 20.09.01 he was at Visva Bharati and was performing his duty. In this connection he has referred to xerox copies of several pages of Students' Attendance Register (Annexure 'P3') of B.Ed. Class of Vinaya Bhavan, Shantiniketan for the relevant date and also the certificate of Adhyaksha, Vinaya Bhavan (Annexure 'P4') in this regard. His further contention is that the revisionist belongs to a family of high esteem and Konnagar Kalyan Parishad was set up by his ancestors to cater the need of good education in the entire locality. Eight schools are being run by the said Parishad and the revisionist is the General Secretary to the Management Authority. It is also disputed by the revisionist that there was 3 any students' strike on 20.09.01 as alleged. Therefore, it is quite absurd to suggest that the alleged incident could take place in the presence of a few hundreds of students in the school.
5. By referring to averments made by the revisionist in Paragraphs 5 & 6 of the petition it is further submitted by him that the de-facto complainant / Opposite Party No. 2 was given a part-time job of a sweeper at the computer center on humanitarian consideration but within a few months of her engagement she became very audacious and negligent in performing her duties. Despite repeated advice to improve her behaviour and performance she did not amend herself. She even sometimes started hurling, abusive languages to the teachers of the centre. Ultimately, the authority of the computer centre paid her dues in July 2001 and asked her not to come to the institution from 1st August 2001. Because of such drastic action taken against her, she became very much infuriated and brought such a false accusation of outraging her modesty on 20.09.01 by Sri Samik Dey, a faculty member of the computer centre. She also 4 implicated the petitioner who happens to be the Secretary of Konnagar Kalyan Parishad.
6. It is, therefore, argued by Mr. Ganguly that the FIR has been lodged by the de-facto complainant on concocted allegations out of grudge against the petitioner, the Secretary, of Konnagar Kalyan Parishad and Samik Dey, the faculty member of the computer centre. In such a fact situation, it is submitted by him that the instant criminal proceeding is maliciously instituted with an ulterior motive to avenge her termination on the accused out of personal grudge. He has also invited this court's attention to the petitioner's detailed personal profile which speaks about his brilliant academic record and his teaching assignment as a lecturer of Visva Bharati Central University. It is also argued by him that an eminent teacher has falsely been implicated in a criminal case by the de-facto complainant to malign him. According to him, since allegations in the FIR are manifestly malafide and also do not constitute prima facie ingredients of offences 5 under sections 323/354 IPC, charge-sheet submitted in this regard against the petitioner is liable to be quashed.
7. It is further argued that the inherent jurisdiction of the High Court can be exercised to quash a criminal proceeding in an appropriate case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It is also submitted by him that the materials collected by the I.O. during investigation are also not sufficient to establish a prima facie case necessitating submission of charge - sheet under sections 354/323 IPC against the revisionist and as such there is no bar in quashing the charge-sheet in question.
8. By producing the relevant CD Mr. R. K. Ghosal, ld. counsel for the state submits that in course of investigation I.O. has examined as many as five witnesses and on perusal of evidence and materials as are available in the CD he was of the opinion that a prima facie charge has been well - established against both the accused and acordingly charge-sheet has also been submitted. The case is, therefore, now pending on the question of 6 framing of charge before the ld. Trial Court. According to him, a charge - sheet should not be quashed as prayed for since there is a scope for the revisionist to raise objection, if any at the relevant point of time when the charge matter would be heard by the learned court below.
9. The short, point for determination is whether the inherent jurisdiction of this court u/s. 482 Cr. P.C. should be invoked to quash the criminal proceeding in question pending before the ld. A.C.J.M. Sreerampore against the accused revisionist in the backdrop of legal and factual scenario of the present case.
10. I have very meticulously scrutinized the FIR itself which is the basic document setting the law into motion and also statements of witnesses so recorded by the I.O. in terms of section 161 Cr. P.C. with utmost circumspection in the light of judicial pronouncements of the Hon'ble Apex Court as well as this court coupled with the arguments made at the Bar in this regard.
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11. Even a bare perusal of the FIR itself reveals that accusation of molestation was made only against co-accused Samik Dey and there was no such allegation of molestation against the revisionist. The specific allegation made in the FIR against the revisionist is that he alongwith co-accused Samik asked the de-facto complainant to settle the matter in lieu of money. It is further alleged in the FIR that some unknown miscreants, engaged by the co-accused and the revisionist, threatened her with dire consequences and such unknown miscreants also allegedly assaulted her.
12. A close analysis of the recitals of the FIR, therefore, tends to unequivocally indicate that the nature of allegation levelled against the revisionist do not attract offences under sections 354/323/309/ 34 IPC as alleged.
13. Adverting to the CD, it appears that statements of five witnesses were recorded on 10.04.02 i.e. after the lapse of more than six months from the date of alleged incident. It is also significant to note that all of them were examined on the very date of lodging of the FIR. The most astonishing and disturbing feature is that all of them have stated in one voice that after the alleged incident 8 the de-facto complainant informed them that she was clasped by co-accused samik and her blouse was torn by him and at that point of time the revisionist entered into the room. But the de-facto complainant herself made no whisper within the four corners of the FIR that her blouse was torn. She has merely alleged that her modesty was outraged by co-accused Samik Dey and after some interval the revisionist came there. Pausing for a moment, it may be reiterated that according to corroborative statements of all the witnesses when her blouse was allegedly torn by co-accused Samik at that particular moment the revisionist arrived there. The statements of witnesses recorded u/s 161 Cr. P.C. are thus at variance with the contents of FIR. At any rate, all the five witnesses examined by the I.O. have also not alleged that the victim was either molested or assaulted by the revisionist.
14. Against the backdrop of termination of the de-facto complainant's part - time job as a sweeper allegedly at the instance of the revisionist, the petitioner's implication in the instant case is to be viewed with attending materials and circumstance on record. It is available from the materials on record including the 9 averments of the petitioner in the revisional application that the computer centre is being run by Konnagar Kalyan Parishad and the petitioner as the Secretary of the organization is at the helm of management affairs of the said Parishad. Since the petitioner is holding pivotal position in the said organisation, the de-facto complainant took the revisionist as the man behind the scene to cause her termination. Accordingly, she resorted to file a criminal case by way of retaliation against the revisionist with an ulterior motive to malign him. His name was thus inserted in the FIR to teach him a good lesson. In such view of the matter the witnesses have also named him as a co-accused without however raising any specific allegation against him.
15. That apart, the xerox copy of Students' Attendance Register sheet signed by the revisionist and counter signed by Adhayakha, Vinaya Bhavan Santiniketan (Annexure 'P2') indicates that the revisionist was holding B.Ed. Classes in Vinay Bhavan, Santiniketan on 20.09.2001. The certificate issued by Adhyaksha Vinaya Bhavana (Annexure 'P4') also tends to show that the Institute being a Unitary Type of Central University, the 10 normal working days are from Thursday to Tuesday. Incidentally it is pertinent to mention that the alleged date of incident i.e. 20.09.01 was a Thursday. As per Annexure (P2 & P4) his presence in the morning hours of 20.09.01 at Vinay Bhavan, Santiniketan is thus substantiated. His presence at Konnagar at the material point of time can also, therefore, be ruled out simultaneously.
16. Before entering into the merit of the revision it would be appropriate to deal with the nature and scope of this court's inherent power to quash a criminal proceeding at an interlocutory stage or subsequent thereto. At the outset it is to be borne in mind that in ordinary circumstances criminal proceedings instituted against an accused should be culminated in its logical conclusion after a full fledged trial and in exceptional circumstances only the High Court may interfere with the same in an appropriate stage. It is, however, now well -settled position of law that a criminal proceeding in an appropriate case can be quashed in exercise of inherent power of this court either to prevent the abuse of the process of the court or otherwise to secure the ends of justice.
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17. In this context, I would like to refer to some of the important guidelines laid down by way of illustrations in Bhajanlal's case reported in AIR 1992 SC 604 for quashing a criminal proceeding in exercise of inherent power of the High Court. Out of seven categories of cases outlined in the afore-cited judgment it would be relevant to mention the following three categories of cases only against the factual backdrop of the instant case leading to filing of this revision ;-
"1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2) ********************************.
3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4) ********************************.
5) *******************************.
6) ********************************.
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7) Where a criminal proceeding is manifestly attended with mala fide and /
or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
18. However, before invoking inherent jurisdiction u/s 482 Cr. P.C. in those types of cases categorised in Bhajan Lal's case (supra), for quashing a criminal proceeding, the High Court is also to take care of the note of caution that such extraordinary power quashing a criminal proceeding "should be exercised very sparingly and with circumspection and that too in rarest of the rare cases". It has also been uniformly held by the Hon'ble Apex Court that the High Court will not be justified in undertaking an enquiry on the question of reliability or genuiness or otherwise of allegations made in the FIR.
19. In para 10 of another ruling reported in 1977 SCC (Cri) 404 [State of Karnatak Vs. Munidesmy & Ors.], it is ruled by the Hon'ble Supreme Court that it is wrong to say that at the stage of framing of charges, the Court cannot apply its judicial mind to the consideration whether or not there is a 13 ground for presuming the commission of the offence by the accused for the simple reason that the order framing a charge affects a persons liberty substantially and as such it is the duty of the court to consider judicially whether the materials on record warrant the framing of charge. It is, therefore, of no use in accepting prosecution plea that the accused should be asked to face a trial. In another ruling reported in AIR 1982 SC 949 [ state of W.B. & Ors, Appellant Vs. Swapan Kr. Guha, Respondents], it has been observed inter alia by the Hon'ble Apex Court that whether an offence has been disclosed or not must necessarily depends on facts and circumstances of each particular case. Such being the position, it is to be noted that on consideration of relevant materials on record if the court is satisfied that the offence is disclosed, the question of interfering with the investigation into the offence would not arise and the investigating agency should be allowed to complete investigation by collecting evidence and materials for proving the offence alleged. However, in the event of the court being satisfied that relevant materials do not disclose any offence, it will be the duty of the court to 14 interfere with any investigation only to prevent unnecessary harassment to any individual.
20. Bearing in mind the principles of law as well as guidelines enunciated in the afore-mentioned rulings of the Hon'ble Apex Court, this court would now proceed to examine the question as to whether the present criminal proceeding is required to be quashed by invoking inherent power of this court at the stage of framing of charge to prevent the abuse of the process of court.
21. As already discussed in preceding paragraphs, although FIR itself does not disclose offences under sections 323/354 IPC against the revisionist, the Investigating Agency proceeded with the investigation on the very date of lodging of inordinately delayed FIR and examined all the five witnesses on the very date of initiation of the P.S. case in question under sections 323/354/309/34 IPC. On completion of investigation the charge-sheet was, however, submitted on 09.05.2002 in a very mechanical fashion. On perusal of the CD the perfunctory nature of investigation is manifestly clear. Further, it is also a clear case of sheer non-application of mind on the part of the I.O. 15 Rather, he has neglected to scrutinize the materials brought on record in its proper perspective prior to formation of his opinion that a prima facie charge under sections 323/354/309/34 IPC has been well established. None of the five witnesses examined by him stated anything implicating the revisionist as the molester of the alleged victim and there was also nothing in the statements to suggest that the de-facto complainant was assaulted by the revisionist. In fact, the de-facto complainant herself has also not levelled any allegation of molestation or assault against the revisionist within the four corners of the FIR.
22. In such a factual scenario, I have no hesitation in holding that contents of the FIR even taken at their face value accepting in its entirety do not constitute prima facie offences under sections 354/323 IPC against the accused revisionist. I am also to hold further that the evidence collected in support of allegations made in the FIR also do not make out any case under sections 354/323/309/34 IPC against the accused revisionist. In my considered view submission of charge-sheet claiming that offences under 16 sections 354/323 IPC have been established prima facie against the accused is of no consequence since evidence and materials so collected by the I.O. were not properly appreciated by the I.O. for the reasons best known to him. That apart, on a close dissection of background facts in preceding paragraphs it reveals that the genesis of the institution of this criminal case is "manifestly attended with mala fide" and it is also palpably clear from the averments of this revisional application that such a criminal proceeding has maliciously been instituted with an ulterior motive "for wreaking vengeance" on the accused due to private and personal grudge arising out of termination of her job as a part time sweeper at the instance of the revisionist.
23. In this connection, reliance can also be placed upon a very recent ruling of the Hon'ble Apex Court reported in (2010)1 C. Cr. LR. (SC) 285 [Parminder Kaur.. Appellant v. State of U.P. & Anr... Respondents). It is observed therein that whenever "it is apparent on the record that the whole prosecution is mala fide, malicious and vengeanceful only to settle the scores" between the parties and there is "lack of bona fides on the part of the investigating officer", 17 the High Court's interference in exercise of its inherent jurisdiction is absolutely warranted. More so, since continuance of the prosecution in such circumstances is nothing but an abuse of the process of law. Therefore, such criminal proceeding is liable to be quashed.
24. For foregoing discussions I am to reiterate that the FIR itself, even if taken in its entirety on its face value, does not disclose offences under sections 354/323 IPC. Further more, investigation carried forward by the I.O. on the basis of such allegations also failed to collect clinching and credible materials in this regard. In fact, the I.O. has totally overlooked the most important and material fact that the de-facto complainant herself did not make any accusation of molestation and assault against the revisionist within the four corners of the FIR so lodged by her. In such a fact situation, instead of submitting charge-sheet under sections 354/323 IPC arbitrarily I.O. ought to have submitted a prayer for discharge of the accused revisionist from the case in the absence of any credible evidence against the revisionist. In my considered view, the I.O. has thus displayed 'lack of bonafides' on his part. 18
25. Therefore, viewing the entire matter on the anvil of the viability of the persecution case, I feel convinced to hold that it is a baseless case of a mala fide and malicious prosecution and as such continuance of this Criminal Proceeding would be a sheer abuse of the process of the court. So, I am of the clear opinion that it is a fit case where the entire proceeding including the charge-sheet should be quashed so far as it relates to the accused revisionist in exercise of the power u/s 482 Cr. P.C.
26. In the result, the instant revisional application stands allowed. The criminal proceeding arising out of Uttarpara P.S. Case No. 67/02 dated 10.04.02 under sections 354/323/309/34 IPC (G.R. Case No. 290/2002) pending before the ld. A.C.J.M. at Sreerampore so far it relates to the accused revisionist Biplab Chatterjee, stands quashed. The said accused also be discharged accordingly. He also be discharged from bail bonds, if any. The afore-mentioned criminal procceding would, however, proceed against the co- accused samik Dey in accordance with law.
19 Let a copy of this order be sent to the ld. A.C.J.M. Sreerampore, for necessary compliance.
CD be returned.
Xerox certified copies, if applied for may be supplied to the parties on priority basis.
(RAGHUNATH RAY, J.) 20