Calcutta High Court (Appellete Side)
Sri Abhijit Gangopadhyay & Anr vs The State Of West Bengal & Ors on 16 May, 2024
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
16.05.2024
Ct. No.34
dc/gsdas
Item No. 86
WPA 13815 of 2024
Sri Abhijit Gangopadhyay & Anr.
-Versus-
The State of West Bengal & Ors.
Mr. Rajdeep Mzumder.,
Mr. Billawadal Bhattacharyya
Mr. Moyukh Mukherjee
Mr. Pritam Roy
Mr. Anish Kr. Mukherjee
Mr. S. Bhattacharjee
Ms. Sagnika Banerjee
Ms. Aishwaryya Bazaz
Ms. Triparna Roy
...for the petitioners
Mr. Kishore Dutta, Ld. Advocate General
Mr. Amitesh Banerjee, Ld. Sr. Standing Counsel
Mr. Sirsanya Bandopadhyay, Ld. Jr. Standing Counsel
Mr. Rudrajit Sarkar
Mr. R.K. Ganguly
... for the State.
The petitioners have challenged the continuation of
the proceedings being Tamluk P.S. Case No. 411 of 2024
dated 4.5.2024 under Sections 143/323/
325/307/354B/379/427/506/109/34 IPC read with
Sections 25/27 of the Arms Act.
Mr. Mazumder, ld. Advocate appearing on behalf of
the petitioners, drew the attention of the Court to the
contents of the FIR and also filed a Supplementary
Affidavit drawing the attention of the court to the
downloaded copy of the permission which was granted to
the petitioner no.1 for taking out a rally in course of filing
his nomination for 30- Tamluk Loksabha Constituency
before the appropriate authority.
2
I have taken into account the nature of the
allegations made in the letter of complaint addressed to
the Inspector-in-charge of Tamluk P.S.
So far as the petitioner no.1 is concerned, there
are allegations against him in the FIR of abetment.
Learned Advocate for the petitioners, additionally,
submitted that so far as the petitioner no.2 is concerned,
his name is appearing at the bottom in the list but no role
has been described so far as the petitioner no.2 is
concerned in the letter of complaint itself.
Learned Advocate for the petitioners has, apart
from drawing the attention of the Court to the different
circumstances, relied upon the judgment of the Hon'ble
Supreme Court in Salib @ Shalu @ Salim -vs- State of UP
and ors. reported in 2023 SCC OnLine SC 947.
Drawing the attention of the Court to paragraph
28 of the said judgment, learned advocate submitted that
an additional ground has been considered apart from the
seven settled proposition in the case of State of Haryana -
vs- Bhajan Lal reported in 1992 Supp(1) SCC 335 for the
purposes of the present case.
Paragraph 28 of Salib @ Shalu @ Salim -vs- State of
UP and ors. (supra) is set out as follows:
"28. At this stage, we would like to observe
something important. Whenever an accused
comes before the Court invoking either the
inherent powers under Section 482 of the Code of
Criminal Procedure (CrPC) or extraordinary
jurisdiction under Article 226 of
the Constitution to get the FIR or the criminal
proceedings quashed essentially on the ground
3
that such proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances
the Court owes a duty to look into the FIR with
care and a little more closely. We say so because
once the complainant decides to proceed against
the accused with an ulterior motive for wreaking
personal vengeance, etc., then he would ensure
that the FIR/complaint is very well drafted with
all the necessary pleadings. The complainant
would ensure that the averments made in the
FIR/complaint are such that they disclose the
necessary ingredients to constitute the alleged
offence. Therefore, it will not be just enough for
the Court to look into the averments made in the
FIR/complaint alone for the purpose of
ascertaining whether the necessary ingredients to
constitute the alleged offence are disclosed or not.
In frivolous or vexatious proceedings, the Court
owes a duty to look into many other attending
circumstances emerging from the record of the
case over and above the averments and, if need
be, with due care and circumspection try to read
in between the lines. The Court while exercising
its jurisdiction under Section 482 of the CrPC or
Article 226 of the Constitution need not restrict
itself only to the stage of a case but is empowered
to take into account the overall circumstances
leading to the initiation/registration of the case as
well as the materials collected in the course of
investigation. Take for instance the case on hand.
Multiple FIRs have been registered over a period
of time. It is in the background of such
circumstances the registration of multiple FIRs
assumes importance, thereby attracting the issue
of wreaking vengeance out of private or personal
grudge as alleged."
Learned Advocate for the petitioners also drew the
attention of the court to the observations made by the
lerned CJM, Tamluk, Purba Medinipur in its order dated
13.5.24. The details of which, at present, are not being
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dealt with, but, would be considered at the appropriate
stage.
Learned Advocate General appearing on behalf of the
State drew the attention of the court to the averments
made in the writ petition and emphasized that the
contentions in the writ petition itself admits regarding the
incident taking place. As such, there is no denial of the
fact regarding the alleged offence taking place at the place
of occurrence.
The attention of the court was drawn to the series of
events set out in the writ petition and it was emphasized
that at the stage of registration of the FIR, the primary
consideration of the police authorities are to check
whether a cognizable offence has been made out or not
and, at that stage, even an incorrect allegation may not
be possible to be justified, which may be unearthed in
due process or course of investigation at the subsequent
stage.
Having drawn the attention of the court to the series
of events, which have been narrated in the writ petition
itself, learned Advocate General emphasized that the
judgments relied upon being State of Haryana -vs- Bhajan
Lal (supra) and Salib alias Shalu alias Salim (supra) do not
apply to the factual circumstances of the present case,
particularly, to sub-paragraph 3 of paragraph 102 of
Bhajan Lal's case as the said sub-paragraph refers to
"uncontroverted allegations made in the FIR or complaint
and the evidence collected in support of the same..." So if
5
the incident is admitted according to the State, it should
be left to the investigating agency to collect the evidence
in support of the same.
I have considered the submissions advanced on
behalf of the petitioners as well as that of the State and
also taken into account the observations recorded by the
Learned Chief Judicial Magistrate, Tamluk, Purba
Medinipur in his order dated 13.05.24, which is as
follows:
"On perusal of the case diary I find that the
IO has not examined the female victims. There
was no prayer for examination of the female
victims and recording their statements under
Sec. 164 Cr.P.C.
The CD also does not reveal any such injury
report and statement of the injured to say that
there was assault upon them causing threat of
murder.
There was no such material to say that
there was used of fire arms to attract Sec. 27 of
Arms Act. The videograph which has been
seized by the IO was also watched by this court
and do not find any such assault, attack or any
provocating statement from any corner to say
that the FIR named accused persons were
involved. It further appears from the FIR that one
of the FIR named accused persons is the
candidate of ensuing Parliamentary Election. To
arrest the FIR named accused, the police
custody of this accused is ridiculous particularly
when he is roaming around the jurisdiction of
this police station for his election campaign."
Another fact which has weighed with this court, at
this stage, is the observations of the Hon'ble Supreme
Court, which was taken into account in the case of Arvind
Kejriwal -vs.- Directorate of Enforcement [Special Leave
Petition (Criminal) No. 5154 of 2024]. Paragraph 8 of the
said judgment refers to one of the considerations for
6
granting interim bail by the Hon'ble Supreme Court in the
reported case. In fact, the Hon'ble Supreme Court took
into account general elections to Lok Sabha where there
is participation of 650-700 million voters out of an
electorate of about 970 million voters who would cast
their votes to elect the Government of this country for the
next five years. Paragraph 8 of the said judgment is
relevant for the purpose of the present case, at the
present juncture, and as such, the same is set out
hereunder:
"8. It is no gain saying that General Elections to Lok
Sabha is the most significant and an important
event this year, as it should be in a national election
year. Between 650-700 milion voters out of an
electorate of about 970 million will cast their votes
to elect the government of this country for the next
five years. General Elections supply the vis viva to a
democracy (Mohinder Singh Gill and Another v.
Chief Election Commissioner, New Delhi and Others
(1978) 1 SCC 405). Given the prodigious
importance, we reject the argument raised on behalf
of the prosecution that grant of interim bail/release
on this account would be giving premium of placing
the politicians in a benefic position compared to
ordinary citizens of this country. While examining
the question of grant of interim bail/release, the
courts always take into consideration the
peculiarities associated with the person in question
and the surrounding circumstances. In fact, to
ignore the same would be iniquitous and wrong."
Additionally, in the same judgment, the Hon'ble
Supreme Court took into account the previous judgments
7
of Siba Shankar Das @ Pintu -vs.- State of Odisha & Anr.,
wherein the conditions imposed for not being involved in
any political activities directly or, indirectly were struck
down being considered to be breach of fundamental
rights.
Reference was also made to State of Andhra Pradesh
-vs- Nara Chandra Babu Naidu, wherein, in an interim
order the condition of restraining the respondent from
organizing or participating in public rallies and meetings thereby permitting him to participate in the political process was allowed.
Having considered the view of the Hon'ble Supreme Court in Arvind Kejriwal (supra) the observation of the Learned Chief Judicial Magistrate, Tamluk, Purba Medinipur in respect of the case diary produced before the said court on 13.05.2024, as well as the fact the petitioner no.1 is a contesting candidate from 30-Tamluk Parliamentary Constituency, I am of the opinion that so far as the petitioner no.1 is concerned, the observations of the Hon'ble Supreme Court in the case of Arvind Kejriwal (supra) squarely applies.
So far as the petitioner no.2 is concerned, the contents of letter of complaint addressed to the Inspector in-Charge do not reflect any overt act or complicity of the petitioner no.2, even his name is absent in the letter of complaint, except the list.
The State of West Bengal intends to use affidavit-in- opposition.
8Let the affidavit-in-opposition be filed by 12th of June, 2024. Affidavit-in-reply thereo, if any, be filed within a week thereafter.
Let the matter appear under the same heading on 12th of June, 2024.
Pending hearing of this writ petition, qua the petitioners, the investigation of Tamluk P.S. Case No. 411 of 2024 dated 4.5.2024 be stayed till 14th of June, 2024. All concerned parties shall act on the server copy of this order duly downloaded from the official website of this Court.
Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance of requisite formalities.
(Tirthankar Ghosh, J.)