Calcutta High Court (Appellete Side)
Binod Kumar Shah & Ors vs The State Of West Bengal & Anr on 19 January, 2017
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
1 19-1-2017 Item no.53 aks..
C.R.R. 3187 of 2014 Binod Kumar Shah & Ors.
Vs. The State of West Bengal & Anr.
Mr. Rakheswar Dey Sarkar ... for the petitioners.
None is present on behalf of the opposite party no. 2. The interest of the State is not involved in this case as this is one complaint case.
Heard Mr. De Sarkar, learned Advocate, appearing on behalf of the petitioners.
It is submitted by Mr. Dey Sarkar that he has already paid the cost as per order dated 19/01/2016.
Affidavit of service filed regarding payment be taken on record. This criminal revisional application is taken up for hearing. This is an application under Section 482 of the Code of Criminal Procedure in which these petitioners have prayed for quashing of the proceeding including the order dated 16/01/2014 passed by the learned Metropolitan Magistrate, 21st Court, Calcutta in Complaint Case No.19638 of 2012 under Sections 323/506(2)/120B of the Indian Penal Code.
It is submitted by Mr. Dey Sarkar by taking me to the impugned order and the complaint to show that there is no ingredient of Section 323 and not to speak of Section 506(2) and 120B of the Indian Penal Code. He submitted that the co-accused being the petitioner no. 1 is a physically challenged person.
I have gone through the complaint, particularly paragraph 9 of it and also the impugned order wherein the learned trial court was pleased to observe that 2 the offence under Section 506 of the Indian Penal Code is triable as warrant procedure case as the punishment is for seven years.
Learned Advocate has cited a single Bench decision of Madras High Court as reported in 1989 Cr. L.J. 669 (Noble Mohan Dass Vs. The State) wherein it was decided by the Hon'ble Single Judge that threat as contemplated under Section 506(2) of the Indian Penal Code must be a life taking threat and that threat should be real one and not just mere word and the court must consider actually what the accused tried to mean.
I have perused the order dated 16/01/2014. Learned trial court relying on the complaint came to the conclusion that the offence will be under Section 506(2) of the Indian Penal Code and as such, he came to the conclusion that the punishment for the offence under Section 506(2) is for seven years.
Section 506 of the Indian Penal Code has two parts - regarding Punishment for criminal intimidation and the term to imprisonment may extend up to two years, or with fine, or both. This criminal intimidation has been defined in Section 503 of the Code.
I have gone through the recital of the complaint as made out in paragraph 9 of the complaint. Learned trial court vide the impugned order directed that the evidence before the charge is to be recorded. He banked upon the recital in paragraph 9 of the complaint that these accused persons threatened the complainant that if the complainant beings the learned Advocate Commissioner for holding commission work for their shop room and building, then they will murder the complainant.
The decision of the Madras High Court as passed in Noble Mohan Dass (Supra) is very much before this court. That case was regarding the dispute between the husband and the wife wherein some uttering was made by the husband to the wife that she will finish her. The decision of other High Court cannot bind the hands of this court and cannot be treated as precedence. However, it may have only persuasive value. The approach of the learned trial court to fix up the matter to be tried as a warrant procedure case was the possible way before him as in that case these accused/petitioners will get chance 3 after evidence before charge is recorded to thrash whether any substance in the complaint is there and if nothing is proved, then the court can very much discharge the accused under Section 245 of the Code of Criminal Procedure.
Learned trial court will consider the evidence as adduced by the complainant and will be in a better position to assess whether any offence under Sections 323, 506(2) and 120B of the Indian Penal Code has been made or not.
The proceeding under Section 482 of the Code of Criminal Procedure cannot be treated as a mini trial.
On scrutiny of the complaint itself, this court is satisfied that there is prima facie ingredient to go for trial and as such, this court is not inclined to exercise the extraordinary power vested on it under Section 482 of the Code of Criminal Procedure.
This criminal revisional application for quashing the proceeding stands dismissed.
The order dated 16/01/2014 is confirmed.
Learned trial court will dispose of the complaint case as early as possible, preferably within a year from the receipt of this order.
Officer is directed to communicate this order to the learned trial court at once.
Interim order, if any, stands vacated.
Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.
(Indrajit Chatterjee, J.)