Calcutta High Court (Appellete Side)
Dr. Saibal Ganguly vs The State Of West Bengal & Ors on 28 June, 2019
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. 1445 of 2018
With
CRAN 1099 of 2019
With
CRAN 457 of 2019
Dr. Saibal Ganguly
Vs.
The State of West Bengal & Ors.
Advocate for the Petitioner : Mr. Sudipto Moitra...Sr.Adv.
Mr. Ayan Bhattacharyya...Adv.
Mr. Pramit Bag...Adv.
Mr. Apalak Basu...Adv.
Mr. Rajesh Kshetry...Adv.
Ms. Sinka Bose...Adv.
Ms. Dipika Sarkar...Adv.
Advocate for the : Mr. Y.J.Dastoor...Sr. Adv.
Opposite Party No.2 Mr.Krishnendu Bhattacharyya...Adv
Ms. Somsuvra Mukherjee...Adv
Advocate for the State : Mr. Rana Mukherjee...Ld.Addl. P.P.
Mr. Santanu Chatterjee...Adv.
Judgment on : 28.06.2019
Madhumati Mitra, J. :
This is an application under Section 482 of the Code of Criminal Procedure 1973 filed by the petitioner praying quashing of the proceedings of CRR No.4792 of 2015 arising out of Lake Police Station Case No.399 dated 24th October, 2015 under Sections 341/323/448/509/114 of the Indian Penal Code pending before the Court of the Learned Chief Judicial Magistrate, Alipore, South 24 Parganas.
In a nutshell the facts of the case are that on 24.10.2015 the de facto complainant i.e opposite party no.2 lodged a written complaint before the Lake Police Station against the present petitioner who is the brother of the husband of the de facto complainant. It was alleged in the said complaint that in the morning of the date of alleged incident the de facto complainant went in the residence of her husband to pick her daughter as she was denied access to her daughter. The de facto complainant picked up her daughter from there and came back home. On that date at 9:00 p.m. the husband of the de facto complainant and petitioner came to her residence and created a scene. Petitioner raised hand on the complainant in full public view in presence of other residents. It was alleged in the said written complaint that her brother- in- law i.e the present petitioner had been residing in U.K since March, 2005 and he was a trespasser. It was the further allegation of the complainant that the petitioner tried to strangle her and abused her.
On the basis of the said FIR, Lake Police Station Case No.399 dated 24.10.15, was started against the FIR named accused persons.
After completion of investigation charge-sheet was submitted against the present petitioner for commission of alleged offences under Sections 341/323/354/448/509 of the Indian Penal Code. Petitioner has approached for quashing of the criminal proceeding pending against him under Section 482 of the Code of Criminal Procedure.
It is the settled principle of law that in order to exercise the inherent power under Section 482 of the Code of Criminal Procedure the contents of the First Information Report shall have to be examined and the High Court at that stage has no jurisdiction to go into the merit or examine its correctness. Whatever appears on the face of the First Information Report shall be taken into consideration to see whether the allegations contained in the FIR or complaint or the statements of the witnesses in support of the same taken of their face value make out any offence as alleged against the petitioner/accused.
Learned Counsel appearing for the petitioner has vigorously argued that the petitioner is a reputed doctor and resides in United Kingdom with his family and de facto complainant is the sister in law of the petitioner i.e the wife of his brother. He has contended that the petitioner has been falsely implicated in the instant criminal proceeding and there was no ground whatsoever for implicating him in the alleged crime. Learned Advocate for the petitioner has submitted that there was/is long standing dispute in between his brother and his wife i.e de facto complainant and the FIR was lodged against the petitioner and his brother i.e. husband of the de facto complainant, but charge-sheet was submitted against the petitioner only.
While making his submission in favour of quashing the criminal proceeding pending against the present petitioner, Learned Advocate appearing for the petitioner has given emphasis on the ground that the petitioner has been falsely and maliciously implicated in the criminal proceeding pending against him. In support of his contention he has invited attention of the Court to First Information Report lodged by the de facto complainant and submitted that at the 1st instance the de facto complainant simply stated in her FIR that her husband and her brother in law came to her house at about 9:00 p.m. On the date of alleged incident they created a scene there and the petitioner raised his hand on her. Learned Advocate for the petitioner has further contended that in her second FIR the de facto complainant exaggerated the alleged incident by stating that the petitioner caused bodily harm to her and tried to strangle her. According to his contention such exaggeration was made in the 2nd FIR with an ulterior motive to harass him as the de facto complainant made prayer for impounding his passport. Learned Counsel for the petitioner has also drawn the attention of the Court to Annexure-P '9' at Page 48 of the petition under Section 482 Cr.P.C. and submitted that the de facto complainant made a complaint against the petitioner to the General Medical Council, 3 Hardman Street, Manchester M3 3AW and that complaint was examined by the case examiners and they decided to conclude the case with no further action. He has vigorously argued that the criminal proceedings initiated by the de facto complainant against the petitioner with mala fide intention due to personal grudge as reflected from her conduct. It has also been contended on behalf of the petitioner that the ingredients of the alleged offences have not been made out either in FIR or in the charge-sheet. According to his contention that the continuance of the criminal proceeding against the petitioner would be an abuse of the process of the Court.
Learned Advocate for the petitioner has placed his reliance on the decisions reported in (2017) 13 Supreme Court Cases 369 (Vineet Kumar and Others Versus State of Uttar Pradesh and Another); (2009) 10 Supreme Court Cases 184 (Neelu Chopra and Another Versus Bharti), 1988 Supreme Court Cases (Cri) 234 (Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others); 2008 Cri.L.J. 431/B. Suresh Yadav Vs. Sharifa Bee and Anr.); (2007)14 Supreme Court Cases 776 (All Cargo Movers (India) Private Limited and Others Vs. Dhanesh Badarmal Jain and Anr.); (2008)13 Supreme Court Cases 678 (Suryalakshmi Cotton Mills Limited Vs. Rajvir Industries Limited and Others); 1992 Supp(1) Supreme Court Cases 335 (State of Haryana and Other Versus Bhajan Lal and Others); (1960)3 SCR 388; AIR 1960 SC 866 (R.P.Kapur Versus State of Punjab); (1977)2 Supreme Court Cases 699 (State of Karnataka Vs. L.Muniswamy and Others); (2017) 13 Supreme Court Cases 369 (Vineet Kumar and Others Vs. State of Uttar Pradesh and Another);
The inherent power under Section 482 of the Code of Criminal Procedure has to be exercised with caution and such power can be exercised only for the purposes specifically mentioned in the Section. These three purposes are:-
1. To give effect to an order in the code;
2. Prevent abuse of the process of the Court and
3. To otherwise secure the ends of justice.
In this connection the Learned Additional Public Prosecution has drawn the attention of the Court to the relevant portions of the case diary and contended that the averments of the FIR specifically disclosed the commission of congnizable offences as well as the involvement of the petitioner in the alleged crime. He has contended that after investigation charge-sheet was submitted against the accused person. He has invited the attention of the Court to the FIR and contended that the de facto complainant lodged only one FIR regarding alleged incident and the submission of the Learned Counsel for the petitioner that the de facto complainant subsequently filed another FIR making specific exaggerated allegations against the petitioner is not correct. According to his contention the materials collected during investigation support the existence of prima facie case against the petitioner. He has lastly contended that the prayer of the petitioner to quash the proceeding is liable to be dismissed.
Learned Counsel appearing for the opposite party no.2 i.e. the de facto complainant has invited the attention of the Court to the FIR and submitted that the allegations contained in the FIR clearly make out a prima facie case. He has further contended that the materials collected by the Investigating Officer during investigation also support the allegation in the FIR.
During the course of hearing, the Learned Advocate for the opposite party no.2, de facto complainant has submitted that from the FIR, it appears that the petitioner trespassed into the house of the father of the de facto complainant and assaulted the victim lady, hurled abusive language to her in presence of her neighbour, caretaker, and security guard of the building. He has further contended that the statements of the witnesses who had seen the alleged incident were recorded during investigation under Section 161 of the Code of Criminal Procedure and the statement of the victim girl was also recorded under Section 164 of the Code of Criminal Procedure which corroborate the alleged incident as described in the FIR. Learned Advocate for the opposite party no.2 has laid stress for dismissal of the application under Section 482 of the Code of Criminal Procedure.
In support of his contention, the Learned Advocate for the opposite party no.2 has placed his reliance on the decisions in Minakshi Bala Vs. Sudhir Kumar reported in 1994 LawSuit(SC) 505, State of Orissa Vs. Debendra Nath Padhi 2004 LawSuit(SC) 1408, R.P.Kapur Vs. State of Punjab reported in 1960 LawSuit(SC) 86, Renu Kumari Vs. Sanjay Kumar reported in 2008 LawSuit(SC) 191; Rupan Deol Bajaj Vs. Kanwar Pal Singh Gill reported in 1995 LawSuit(SC) 958.
On 11.06.2019, the petitioner has filed certain documents by way of supplementary affidavit which had not been annexed to the application under Section 482 of the Code of Criminal Procedure for invoking inherent power of the Court.
Copy of the case diary has been produced by the Learned Additional Public Prosecutor.
All the Learned Counsel appearing for the parties took much pain and advanced their eloquent arguments with the help of a series of decisions of our Apex Court and different High Courts. In addition to their oral arguments Learned Counsel filed written submissions. I after carefully and assiduously examining the submission and counter submission advanced by all the Learned Counsel for the parties both on the legal and factual aspects and after scrupulously scanning the materials placed on record and examining the written arguments submitted by the parties, would like to deal with those contentions seriatim.
It is well settled that inherent power under Section 482 of the Code of Criminal Procedure has been vested with the High Court with object of advancement of justice.
Learned Counsel for the petitioner submits that the proceedings pending against the petitioner before the Learned Magistrate has been initiated maliciously with ulterior motive for wreaking vengeance due to personal grudge. In support of his contention he has drawn the attention of the Court to the supplementary affidavit and submitted that the de facto complainant initiated several proceedings against her husband and in laws including the present petitioner under the provisions of the protection of Women from Domestic Violence Act, 2005, under Section 7(8) and 25 of the Guardian and Wards Act etc. and the de facto complainant narrated the alleged incident in different forum in different ways and thus created a doubt regarding the genuineness of commission of the alleged offences. He has further contended that the documents which have been filed by the petitioner by way of supplementary affidavit are of unimpeachable character and Court can take the documents into consideration. He has further contended that the de facto complainant made different versions at different forum as reflected from the documents as filed by the petitioner by way of supplementary affidavit and from those documents it can be said without any hesitation that the criminal proceeding has been initiated only to cause harassment to the accused and continuance thereof would amount to abuse of process of Court.
The parameters of jurisdiction of the High Court in exercising it jurisdiction under Section 482 Cr.P.C. is now well settled.
In this connection, I would like to refer to a decision of the Hon'ble Supreme Court reported in State of Haryana and Others Vs. Ch. Bhajan Lal and Others reported in AIR 1992 SC 604.
In paragraph 108 of the said judgment the Hon'ble Supreme Court was pleased to give illustrations wherein the extraordinary power under Article 226 or the inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The illustrations are as follows:-
" 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) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R do not disclose a congnizable 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 of 155(2) of the Code;
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) 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;
5) 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;
6) Where there is express legal bar engrafted in any of the provisions of the Code or 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;
7) Where a criminal proceeding is manifestly accompanied 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 personal and private grudge."
I would also like to refer another decision in R.P.Kapur Vs. State of Punjab reported in AIR 1960 SC 866. Our Apex Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
i. Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
ii. Where the allegations in the first information report or complaint taken at its face value and accepted in their entirely do not constitute the offence alleged;
iii. Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
Coming to the case at hand, the present petitioner who is the accused of the criminal proceeding is admittedly the brother of the husband of de facto complainant. De facto complainant lodged the FIR against the present petitioner and her husband. After completion of investigation police submitted charge sheet against the petitioner only for commission of the alleged offences punishable under Sections 341/323/354/509/448 I.P.C.
It is the settled principle of law that in order to exercise the inherent power under Section 482 of the Code of Criminal Procedure the contents of the First Information Report shall have to be examined and the High Court at that stage has no jurisdiction to go into the merit or examine its correctness. Whatever appears on the First Information Report shall be taken into consideration to see whether the allegations contained in the FIR or complaint or the statements of the witnesses in support of the same of their face value make out any offence as alleged against the petitioner/accused. It appears that during investigation the statements of the witnesses have been recorded under Section 161 of Cr.P.C. and the de facto complainant has made statement before the Learned Magistrate under Section 164 of the Code of Criminal Procedure in connection with the alleged incident.
First Information report, the charge-sheet and the materials collected during investigation clearly indicate the existence of prima facie case for proceedings for commission alleged offences against the present petitioner.
Learned Advocate for the petitioner has contended that there was no specific allegation against the petitioner in the 1st FIR and the de facto complainant made specific allegation against the petitioner in subsequent FIR which is an afterthought.
In the instant case the de facto complainant lodged only one FIR consists of two pages. Perhaps this contention has been made by Learned Counsel appearing for the petitioner on a mistaken basis.
Learned Advocate for the petitioner has strongly contended that the petitioner has been maliciously implicated in the criminal proceeding. In support of his contention he has placed reliance on the statements of the de facto complainant in connection with several proceedings pending before different Civil and Criminal Court and the complaint made by the de facto complainant before the General Medical Council, Manchester, United Kingdom. It is the specific contention of the petitioner that after conducting an investigation into the petitioner's fitness to practice, the case examiners decided to close the case with no action.
Investigation of the medical Council into the fitness to practice by a medical practitioner is quite different from criminal investigation and function of criminal Court. As such no inference can be drawn on the basis of the decision of said examiners. Moreover, quashing of prosecution by the High Court by appreciating evidence is not proper when the allegations made in the First Information Report and the materials referred to in the charge sheet prima facie make out alleged offences. The Court while considering the prayer for quashing should not assume the jurisdiction of Trial Court and to consider the plea of innocence of the accused. While considering the prayer for quashing the High Court should not delving deep into the merit of the case or adjudicate upon a disputed question of fact. Considering all aspects, I am of the view that the allegations as made in the FIR prima facie constitute the offence alleged. Subsequent submission of charge sheet against the petitioner and the materials collected during investigation make out prima facie case for proceeding against him.
The instant case does not come with the guidelines as laid down by the Hon'ble Supreme Court in State of Haryana and Others Vs. Ch. Bhajan Lal and Others reported in AIR 1992 SC 604 and in other subsequent cases regarding exercise of inherent power under Section 482 of the Code of Criminal Procedure.
Moreover, from the materials placed on record, it cannot be said that the continuance of the criminal proceedings pending against the petitioner would amount to an abuse of the process of the Court. In my opinion, it is not a fit case to exercise the discretion under Section 482 of the Code of Criminal Procedure. As a result the application under Section 482 of the Code of Criminal Procedure i.e.1445 of 2018 is dismissed.
Interim order, if any stands vacated.
Re: C.R.A.N.1099 of 2019 and C.R.A.N.457 of 2019.
In view of the judgment passed in C.R.R.1455 of 2018 both the applications become infructuous and stand dismissed.
Copy of case diary produced by the State be handed over to the Learned Advocate for the State immediately.
Urgent Photostat certified copy of this judgment be supplied to the parties, if applied for, upon compliance with all formalities.
(Madhumati Mitra, J.)