Calcutta High Court (Appellete Side)
For The vs Prakash P. Hinduja" Reported In 2003 Scc ... on 10 June, 2014
Author: R. K. Bag
Bench: R. K. Bag
1 0.6.2014
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p.b.
C.R.R. No.3135 of 2012 Mr. Soumak Bera.
.....For the Petitioner.
The petitioners have preferred this criminal revision for quashing the proceeding being Complaint Case No.1959 of 2012 pending before the court of learned Chief Judicial Magistrate, Alipore, under Sections 448/457/380/323/504/506/34 of the Indian Penal Code.
The affidavit of service filed on behalf of the petitioner is kept with the record. It appears from the affidavit of service that the petitioners served copy of the application on the opposite party in the address mentioned in the application for criminal revision and also in another address collected by the petitioners from their personal source and acknowledgement due has been returned.
None appears on behalf of the opposite party no.2 in spite of service of notice as reflected from the affidavit of service filed by the petitioners.
Mr. Soumak Bera, learned counsel for the petitioner submits that the opposite party no.2 is the authorised attorney of the tenants under the petitioner no.1 in respect of first floor of Premises No.20, Aswini Dutta Road, Calcutta - 700 029 at a monthly rental of Rs.300/- payable according to English calendar. According to Mr. Bera, the petitioner got exparte decree against the opposite party no.1 on 19th September, 2011 in Ejectment Suit No.455 of 2010 from the court of learned Civil Judge (Junior Division), 3rd Court, Alipore. The said exparte 2 decree was put into execution in Ejectment Execution No.271 of 2011 before the Court of learned Civil Judge (Junior Division), 3rd Court, Alipore. Mr. Bera further submits that the executing court by an order dated 6th March, 2012 gave direction to the bailiff of the court for taking over delivery of possession of the decreetal property from the opposite party no.2 by breaking open the padlock of the premises. Mr. Bera has also pointed out from the report of the bailiff submitted on 27th March, 2012 that the possession of the decreetal premises was taken over in compliance with the direction of the court in presence of the employees of the opposite party no.2.
It is, thus, contended on behalf of the petitioners that the opposite party no.2 started this criminal case against the petitioners by giving a different colour to the fact of taking over delivery of possession of decreetal premises on 27th March, 2012 in order to take revenge and as such, the criminal proceeding initiated against the petitioner is liable to be quashed as mala fide.
The proposition of law laid down by the Supreme Court of India in the case of "Union of India V. Prakash P. Hinduja" reported in 2003 SCC (Cri) 1314 for quashing the criminal proceeding by the exercise of inherent power under Section 482 of the Code of Criminal Procedure is as follows:-
"(i) where the allegations made in the FIR or complaint even if they are taken at their face value and accepted in entirety do not prima facie constitute any offence against the accused, (ii) 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 against the accused and (iii) where there 3 is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the Act concerned to the institution and continuance of the proceedings."
It is also held by the Apex Court in the "Rupan Deol Bajaj V. Kanwar Pal Singh Gill " reported in 1995 SCC (Cri) 1059 that by exercise of inherent power under Section 482 of the Code of Criminal Procedure the, High Court can quash the criminal proceeding 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.
In the instant case, bailiff of the court went to the premises of the opposite party no.2 for taking over delivery of possession of the said premises by breaking open the padlock of the house for the purpose of executing exparte decree passed in Ejectment Suit No.455 of 2010 and as such, the incident of causing assault on the opposite party no.2 by the present petitioners is inherently improbable and absurd.
In view of proposition of law laid down by the Apex Court in the decisions reported in "Union of India V. Prakash P. Hinduja" reported in 2003 SCC (Cri) 1314 and "Rupan Deol Bajaj V. Kanwar Pal Singh Gill " reported in 1995 SCC (Cri) 1059 I am of the opinion that the criminal proceeding initiated by the opposite party no.2 against the petitioners should be quashed to prevent abuse of the process of the court and also for ends of justice.
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In view of my above findings, the criminal proceeding being Complaint Case No.1959 of 2012 pending before the court of learned Chief Judicial Magistrate, Alipore, is quashed.
The criminal revision is disposed of.
Let a copy of the order be sent down to the learned court below for favour of information and necessary action.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(R. K. Bag, J.)