Calcutta High Court (Appellete Side)
Md. Shahid Khan @ Md. Sahid Khan & Ors vs The State Of West Bengal & Ors on 12 April, 2012
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION (APPELLATE SIDE) PRESENT :
The Hon'ble Justice Kanchan Chakraborty C.R.R No. 1484 of 2008 Md. Shahid Khan @ Md. Sahid Khan & Ors.
Versus The State of West Bengal & Ors.
For the Petitioners : Mr. Milon Mukherjee
Mr. Saibal Mondal
Mr. Subasish Dasgupta
For the O.P. no. 2 : Mr. Sudipto Moitra
Mr. Tarique Quasimuddin
For the State : Mr. Amarta Ghose
Heard On : 14.03.2012
Judgement On :12.04.2012
Kanchan Chakraborty, J:
1) Quashing of the proceedings in G.R. case no. 1153 of 2007, pending in the court of learned 9th Metropolitan Magistrate, Kolkata arising out of Part Street Police station case no. 131 dated 21.5.2007 has been sought for in this application filed by Md. Shahid Khan and three others, mainly, on the grounds :
a) that the prosecution is manifestly attended with mala fide and instituted with an ulterior motive for wreaking vengeance on them with a view to spite them due to private and personal grudge;
b) that no prima facie case is made out under Sections 365/387/344/120B IPC, even if the allegation made in the F.I.R./charge-sheet are taken at their face value and accepted in their entirety;
2) For better appreciation of the matter, the factual aspects leading to this application are required to be set out.
3) The petitioners are former residents of Gaya, Bihar. Father of the opposite party No. 2, Jauyad Ali is also a permanent resident of Gaya, Bihar. Father of the petitioners No. 1,2,3 was Shahjahan Khan was murdered and the father of the opposite party no. 2 and his uncles were made accused in that murder case. Their trial is pending in a Court at Gaya. The opposite party no. 2 and his brother Naiyer Ahmed are residing at Kolkata and running hotel business.
There are cases and counter cases between two families and over the issue of the murder of father of the petitioner 1,2,3, a process of negotiation was going on through one Sabbir of Kolkata. On 20.5.2007 at about 10 hours, Sabbir called on Naiyer over phone and told him that the sons of deceased Shahjahan arrived at Kolkata and they wanted to comprise the pending case and for that purpose, they wanted to meet Naiyer Ahmed. Hearing that, Naiyer Ahmed left for Sabbir but did not return back till 3.30 P.M. His brother Jauwed Ali (de facto complainant) made a phone call to his brother Naiyer but it was disconnected. A few minutes thereafter Naiyer called him over phone and told him that petitioners have come with son-in-law of Shahjahan Khan at Calcutta from Gaya and a negotiation was going on with them. He also said that he would be returning back home shortly. But, he did not return. Neither he was found available nor he made any phone call. Jauwed Ali filed one F.I.R. in Park Street police station stating the facts above apprehending that Sabbir and the petitioners kidnapped Naiyer Ahmed and confined him in a secrete place.
4) The F.I.R. was lodged on 21.5.2007 on the basis of which Park Street police station case no. 131 dated 21.5.2007 was started. Investigation into the case was also started. In course of investigation the investigating officer collected evidence, recorded statement of witnesses, got the statement of Naiyer recorded under Section 164 of the Cr.P.C. after recovering him from Howrah Station and finally submitted charge-sheet against the petitioners and one Sabbir under the above mentioned Sections. The learned Metropolitan Magistrate, on 17.3.2008, had taken cognizance of offences under Section 365/387/344/120B of IPC against the petitioners and Sabbir. Sabbir was shown as absconder in the charge-sheet. Warrant of arrest was issued against him. The petitioner have come up with this application praying for quashing of the proceeding on the grounds already mentioned.
5) Mr. Milon Mukherjee, learned Counsel appearing on behalf of the petitioners has taken this Court to paragraph 6 the petition and contended that the facts disclosed therein make it absolutely clear that in order to harass the petitioners this criminal action has been initiated by the opposite party no. 2 with mala fide intention and to harass them suppressing material facts in the F.I.R. He contended further that criminal prosecution have been initiated one after another against the petitioners. The instant case, Mr. Mukherjee contended, is also a fruit of the male intention of the opposite party no. 2 and his family members. He submitted that the male intention of the opposite party can also be inferred from the F.I.R. itself. Firstly, there was delay in lodging the F.I.R. Secondly, Naiyer Ahmed (victim) left his house at his own will and no one forced him or kidnapped him. Thirdly, question of negotiation by the party who was always kept busy in facing criminal trials does not arise and lastly, the victim Naiyer Ahmed was found loitering in Howrah railway station. This apart, he submitted that the essential ingrediance of offences under Section 365/387/344/120B IPC are conspicuously absent in the case. All these factors together shows no case is made out at all against the petitioners and the prosecution is liable to be quashed.
6) Mr. Sudipto Moitra, learned Counsel appearing on behalf of the opposite party no. 2 contended that both the parties indulged themselves in filing criminal cases against each other and that fact does not necessarily implied that the case in hand has been filed with mala fide intention. He contended further that to attract the offence " abduction", application of force is not a sine quo non. Mr. Moitra contended further that when the matter has been investigated into and ended in a charge-sheet having established a prima facie case, this Court should not quash the proceeding.
7) Mr. Amata Ghose, learned Counsel appearing on behalf of the State submitted that this Court should not exercise its extraordinary jurisdiction under Section 482 of the Code in the matter of quashing a proceeding by judging the truthfulness or otherwise of the allegations set forth in the F.I.R. He submitted that the F.I.R. in question and charge-sheet filed by the I.O. have made out a prima facie case against the petitioners. Therefore, the proceeding can not be quashed. At the bar the following decisions have been referred to.
i) M/s Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. Reported in 1998 CRI. L.J.I.
ii) State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors.
Reported in AIR 1992 Supreme Court 604.
iii) Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS & Anr. Reported in (2007) C Cr. LR (SC) 391.
iv) Mushtaq Ahmed Vs. Mohd. Habibur Rehman Faizi & Ors. Reported in 1996 Supreme Court Cases (Cri) 443.
v) Radhey Shyam Khemka & Anr. Vs. State of Bihar
reported in (1993) 3 Supreme Court Cases 54.
vi) State of Maharashtra & Ors. Vs. Som Nath Thapa &
Ors.reported in 1996 Supreme Court Cases (Cri) 820
reported in 1996 Supreme Court Cases (Cri) 820.
vii) Rajesh Bajaj Vs. State NCT of Delhi & Ors. Reported in
1999(1) Supreme Court Cases.
viii) Sanapareddy Maheedhar Seshagiri Vs. State of Andhr Pradesh reported in AIR 2008 Supreme Court 787.
8) Mr. Mukherjee in order to explain the principles governing exercise of inherent jurisdiction of this Court, quoted archbold 1997 addition at page 323. It says, " the power to stay proceeding for abuse of process has been said to include a power to safe guard an accused person from opretion or prejudiced, and has been described as a formidable safeguard, developed by a common law, to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so".
An abuse of process is something so unfair and wrong that the Court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the Court show as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) the defendant has been, or will be, prejudiced in the preparation or conduct of his defense by delay on the part of the prosecution.
9) Mr. Mukherjee also referred to black stone's criminal practice 2008 addition page 1276 in order to explain what is meaning of abuse of process. It is stated therein that once an indictment has been preferred, the accused must be tried unless (a) the indictment is defective; (b) a plea in bar applies (such as autrefois acquit); (c) a nolle prosequi is entered by the A.G. to stop the proceeding; or d) the indictment discloses no offence that the Court has jurisdiction to try.
10) In M/s Pepsi Food limited (Supra) the Hon'ble Court held that summoning of an accused in a criminal case is a serious matter. Criminal law can not be set into motion as a matter of course. It is not that the complaint as to bring witnesses to support his allegations to have the criminal law set into motion. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law applicable thereto. The Hon'ble Court held further that when complaint and preliminary evidence made out no case against the accused, the complaint is liable to be quashed.
11) In State of Haryana Vs. Ch. Bajan Lal (Supra) the Hon'ble Court set out the categories of cases by way of illustration, wherein High Court can quash a proceeding by exercising its inherent power under Section 482 of the code.
a) Where the allegations made in the First Information Report of 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.
b) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2) of the code.
c) 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.
d) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the code.
e) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
f) Where there is an express legal bar engrafted in any of the provisions of the code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
g) 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.
12) In C.B.I. Vs. Rabi Sankar Srivastava (Supra) It was held that investigation into a case should not be stopped at the initial stage. If the allegations made out a prima facie case, quashing of proceeding is not warranted.
13) In Mushtaq Ahmad (Supra), it was held when a prima facie case is clearly made out in the petition of complaint, High Court was not justified in quashing the complaint by considering the rival version and entering into debatable area of deciding which of the version was true.
14) In Radhashem Khemka (Supra), it was held that if offence prima facie false under the penal code, launching of prosecution can not be thwarted by the High Court under Section 482 of the Code.
15) In State of Maharastra & Ors. (Supra), it was held that test of existence of a prima facie case is to be done at the time of framing of charges. If there is ground for presuming that the accused committed the offence it can be said that a prima facie case has been made out. At that stage, probative value of the materials on record can not be gone into.
16) In Rajesh Bajaj (Supra), it was held that if factual foundation for the offence has been laid in the complaint, the Court should not hasten to quash the criminal proceeding merely on the premise that one or two ingrediance have not been stated in detail;
17) In Sanapareddy Maheedhar Seshagire (Supra), it was held that the High Court should be extremely cautious and slow to interfere with the investigation/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the F.I.R. does not disclosed commission of any offence or that the allegations contend in the F.I.R. do not constitute any cognizable offence or that the prosecution is the barred by law or the High Court is convinced that it is necessary to interfere to prevent to abuse of the process of the Court.
18) There is no dispute as to the principles laid down by the Apex Court. To be stated precisely, the decision of the Court in State of Haryana Vs. Ch. Bhajanlal (Supra) has been followed by the High Courts as well as the Apex Court in all subsequent decisions. Be that as it may, it is now imperative for this Court to look into F.I.R. and charge-sheet in dispute in order to appreciate the grounds taken by Mr. Mukherjee.
19) The F.I.R. is short one. It says that there was a Criminal case over murder of the father of the petitioners no. 1 to 3 and the father and uncles of the opposite party no. 2 were made accused therein and were facing the trial at Gaya. It says further that a negotiation between the two families was going on over the issue through one Sabbir (accused shown as absconder), that on 20.5.2007 at 10.00 a.m. Sabbir called on Naiyer over phone and informed him that the petitioner no. 1 ro 3 and 4 came to Kolkata for furtherance of compromise and wanted meet Naiyer for that purpose. Naiyer left home but did not return. At 03.35 P.M., he informed his brother (opposite party no. 2 that negotiation was going on and that he would be back home soon. But, he did not return. All efforts to trace him out gone in vain. On the next date, the F.I.R. was lodged.
20) The charge-sheet shows that the I.O. of the case investigated into the case, examined available witnesses, recovered Naiyer from Howrah Railway station on 31.5.2007 and got his statement recorded under Section 164 of Cr.P.C. The I.O. of the case found that there was a strong prima facie case under Section 365, 387,344/120B of IPC against the petitioners.
21) In view of the facts averred in the F.I.R., Naiyer was not forced to leave his house and to sit together with the petitioners for negotiation. Sabbir (the accused shown as absconder) called on him over phone and he left his house on 20.5.2007. Mr. Mukherjee put much stress on this part that submitted that if the story of the F.I.R. is believed, then no case of kidnapping or abduction case be said to have been made out.
22) The offence "kidnapping" has been defined in Section 359 of IPC as follows :
Section: 359 " Kidnapping is of two kinds; Kidnapping from India, and kidnapping from lawful guardianship."
On careful reading of the F.I.R., it can be said without hesitation that Naiyer was not kidnapped initially within the meaning of the Section 359 of IPC. But, what happened after alleged negotiation, is a question of fact unknown to this Court. The statement of Naiyer perhaps would be the answer to that question. His statement under Section 164 Cr.P.C. would disclose also that where, how and in what manner he was wrongfully confined by the petitioners. This can well be judged by the trial Court at the time of training of charges. The I.O., upon consideration of the statement of Naiyer found elements of offences under Section 344 of IPC. At this stage, it is not wise and proper for this Court to pass any verdict on this issue. This Court is not supposed to get into meticulous analysis of facts as to likelihood of acquittal or conviction. This attempt on the part of this Court would be amounting to exceeding its power in quashing criminal proceeding on erroneous assumption that ingredients of offence alleged have not been made out. In this context, the decision of the Hon'ble Court in Padal Venkata Rama Reddy Vs. Kovvuri Satyanarayana Reddy reported in (2012) 1 SCC (Cri) 603 can well be referred to. Again, in K. Neelaveni Vs. State reported in (2011) 1 SCc (Cri) 219, Hon'ble Court held that truthfulness or otherwise of allegation is not fit to be gone into at the stage when charge-sheet is filed and magistrate did not get any opportunity to examine the matter under Section 239 Cr.P.C. Therefore, when Naiyer has stated about his confinement Magistrate under Section 164 Cr.P.C. and the I.O. prima facie believed it the matter is entirely left with the trial Court to judge and not to this Court for taking any view in final form as to reliability of the same.
23) The offence 'Abduction' has been defined in Section 362 of the IPC. It says not about application of force but " deceitful means" also. If the F.I.R. and charge-sheet is read minutely, it would reveal that through Sabbir, the petitioners called on Naiyer for advancing the negotiation process. That was the "means" deceitfully applied by them to get Naiyer in their den. Naiyer was a lone member from the side of this family. So, the statement under Section 164 Cr.P.C. was of great value to the I.O. of the case. He did not go to the place as directed by Sabbir on his own. It was the phone call that moved him actually. It might be a false pretext or true one- but, ultimately, he remained under the grips of the petitioners for a few days. Therefore, prima facie, a case of abduction was there.
24) It is true that a good number of criminal cases are going on between the parties. Both have indulged themselves in criminal prosecutions against each other. Some of them were ended in a charge-sheet or some of them ended in F.I.R. But, this fact alone does not necessarily imply that what has been averred in the F.I.R and revealed on investigation into this case and to be discarded and to be treated as false. I do not accept this analogy of Mr. Mukherjee. There is motive for wreaking vengeance on both sides to spite each other. It is not that the opposite party no. 2 or his family failed in all criminal prosecution lodged by them against the petitioners and therefore, had taken another chance by lodging a false case. The F.R.T. case No. 196 of 2007 was filed on 22.9.2011 while charge-sheet in this case was filed on 07.3.2008, i.e., long before the FRT was filed. So, on that count also, the contention of Mr. Mukherjee can not be accepted. This apart, the petitioners have never prayed for their discharge under Section 227 or 239 of Cr.P.C. The learned lower Court never got the opportunity to examine what was the materials collected by the I.O. in course of investigation. This is a serious triable case and the petitioners have the opportunity to try their luck by filing application under Section 227 of Cr.P.C. and the Sessions Court would be the perfect and right place where an open discussion on facts can be done. In Ajay Kumar Das Vs. State of Jharkhand, reported (2012) 1 SCC (Cri) 564 the Hon'ble Court cautioned the High Court that while exercising the power under Section 482, it can not delve into factual controversy so as to quash proceedings. The Hon'ble Court reiterated its view that under Section 482, Court is to look into the allegations made and must not ask for supporting evidence. If defense has a case, it can be agitated before Court at the time of framing of charges.
25) In the premises above, this Court is of consider view that the prosecution lunched against the petitioners should continue with liberty to them to raise all the defenses as may available to them in accordance with law at the time of framing of charge in the trial Court. With the observation above, I dismiss the revision application.
26) No order as to costs is passed.
27) Order stay, if any stands vacated.
(Kanchan Chakraborty,J)