Calcutta High Court (Appellete Side)
Basudev Ghosh vs State Of West Bengal & Anr on 1 April, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA CRIMINAL MISCELLANEOUS JURISDICTION APPELLATE SIDE PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar CRR 2023 of 2014 Basudev Ghosh
-vs.-
State of West Bengal & Anr.
For the Petitioner : Mr. Sarjati Dutta For the OP2 : Mr. Dipanjan Dutt For the State : Mr. Amarta Ghose Heard on : 21.01.2015 Judgement on : 01/04/2015
Subrata Talukdar, J.: In this application the petitioner seeks quashing of the First Information Report being Bidhannagar East Police Station Case No. 43 of 2014 dated 2nd April, 2014 under Sections 420/467/468/471/120B/34 of IPC presently pending before the Ld. Additional Chief Judicial Magistrate (for short Ld. ACJM), Bidhannagar East, District- North 24 Parganas and corresponding to GR Case No. 304 of 2014.
Sri Sarajyati Dutta, Ld. Counsel appearing for the petitioner submits that he is a senior citizen at present and a retired bank officer. The petitioner is the original lessee of the premises no. BL-79, Sector-II, Salt Lake City (for short the subject premises) under the jurisdiction of East Bidhannagar P.S. A tenancy agreement was executed on the 4th of August, 1991 by and between the parents of the OP2-complainant, and the petitioner in respect of the subject premises. On the 7th of January, 1993 the father of the OP2- complainant having expired the said tenancy agreement dated 4th August, 1991 got misplaced necessitating the execution of fresh agreement dated 1st October, 1995 by and between the petitioner and the mother of the OP2-complainant.
It has been, inter alia, alleged in the complaint that at paragraph 12 of the said agreement it has been fraudulently stated by tampering/adding/altering the following: "this is the last and final memorandum of agreement cancelling all other earlier agreements". Therefore alleging fraud and forgery the OP2 filed the instant complaint.
Sri Dutta further submits that in the year 2004 the petitioner filed an eviction suit against the OP2-complainant along with other defendants which was decreed on 28th December, 2008 in favour of the petitioner-plaintiff. Challenging the decree the OP2-complainant filed an appeal before the Ld. 1st Additional District Court, Barasat and on 12th November, 2009 the Ld. Appellate Court was pleased to dismiss the appeal on contest thereby affirming the decree. Further challenging the order of the Ld. Appellate Court the OP2 preferred a second appeal before this Hon'ble Court being SA 189 of 2010 and on 28th January, 2013 the second appeal was dismissed and no steps were taken to restore the same.
Ld. Counsel submits that towards execution of the decree, Title Execution Case No. 09 of 2009 was filed by the petitioner and the OP2 and his family members were evicted from the upper portion of the subject premises and vacant possession was delivered to the petitioner on 13th December, 2013. Thereafter it is alleged that the OP2 and his family members forcibly occupied the ground floor of the subject premises and till date are illegally staying there compelling the petitioner to lodge a complaint with Bidhannagar East Police Station being Complaint No. 146 of 2013 dated 14th December, 2013 under Section 448 of the IPC.
At the same time the petitioner filed a suit for recovery of khas possession under Section 6 of the Specific Relief Act. Ld. Counsel strenuously argues that only to harass the petitioner and his family members the OP2-complainant having failed to succeed in all the abovenoted Civil Courts has filed the instant complaint by way of a counterblast. Admittedly, the second agreement dated 1st October, 1995 was signed by the mother of the OP2-complainant and no controversy with regard to any forgery was at all raised by the Op2- complainant for nearly 18 years that is, between 1995 and 2013. However, close to the success of the petitioner in his civil action the OP2-complainant has lodged one complaint after another against the petitioner.
Ld. Counsel refers to the first complaint being Bidhannagar East Police Station Case No. 187 of 2011 dated 5th December, 2011 under Sections 447/323/506 (II)/379 of the IPC and submits that on completion of investigation no material was found against the petitioner and the Investigating Officer filed a closure report with the further prayer to prosecute the OP2 and his wife under Section 211 IPC. Furthermore, the OP2-complainant did not challenge the closure report by filing a protest or 'naraji' petition before the Ld. Magistrate. Now after the OP2-complainant having lost right up to this Hon'ble Court in the civil action, the instant complaint has been filed by way of a counter blast. Ld. Counsel argues that the ingredients of the offences are woefully absent in the facts and circumstances of the present case.
Per contra, Sri Dipanjan Dutt, Ld. Advocate led be Sri Sandipan Sanguly, Ld. Counsel argues that there is a charge of tampering with respect to the last portion, viz. paragraph 12 of the tenancy agreement dated 1st October, 1995. Sri Dutta submits that on a charge of forgery no quashing can be prayed for and the offences complained squarely fall within the domain of the offences under Section 467 and 468 IPC. It is the further submission of Sri Dutta that the present petition for quashing is pre-mature.
In support of his abovenoted submission Sri Dutta relies upon the decision of the Hon'ble Apex Court in 2006 (6) SCC (Cri) 272 (State of Orissa & Anr. vs. Saraj Kumar Sahoo); 2006 (2) SCC (Cri) 310 (Meena Kumari & Anr. vs. State of Bihar & Ors.) and 2008 (2) SCC (Cri) 231 (T. Vengama Naidu vs. t. Doraswami Naidu & Ors.) to make the point that there can be no quashing at the stage of investigation. Relying on the abovenoted decisions Ld. Counsel submits that the powers under Section 482 CrPC ought not to be exercised for quashing a legitimate prosecution when the entire facts are incomplete, hazy and the evidence is yet to be collected and produced before the Ld. Trial Court.
Sri Amarta Ghose, Ld. State Counsel clearly submits that the disputes are civil in nature. However, the allegations of forgery will set into motion the criminal process. Sri Ghose fairly points out that with respect to the charge of forgery the material document being the tenancy agreement dated 1st October, 1995 has not been seized. Therefore, it is still open to the Investigating Officer to seize the material document and file a final report.
In connection with the above he refers to the case diary which mentions that there is no seizure and without such seizure list the forensic examination of forgery is not possible.
Having heard the parties and considering the materials on record this Court notices that the agreement dated 1st October, 1995 was the subject matter of Title Suit No. 7 of 2004 in which the present petitioner along with others were the plaintiffs and present OP2- complainant along with others were the defendants. The suit was finally decided on the 28th of December, 2009 by the Ld. 2nd Civil Court (Senior Division), Barasat who framed the following issues:-
"1. Is the suit maintainable in its present form and law?
2. Is the suit hit by the principles of estoppel and acquiescence?
3. Is the suit bad for non-joinder and mis-joinder of parties?
4. Have the plaintiffs any cause of action to file the present suit?
5. Are the plaintiffs entitled to get the decree as prayed for?
6. To what other relief/reliefs are the plaintiffs entitled?"
The agreement dated 1st October, 1995 was also the subject matter of adjudication in the suit. The defendants contested the suit and filed written statement denying the material allegations. The material documents were admitted into evidence as Exbt. 1, 2, 3/2 and the present petitioner-plaintiff was examined as PW1. The Ld. Civil Court (Junior Division) observed that although the plaintiff adduced evidence, in spite of several opportunities there was no offer on the part of the OP2-complainant-defendant to lead evidence in the suit. In such view of the matter the defendants were decreed to be trespassers and directed to vacate the suit premises.
In the first appeal against the aforesaid decree the Ld. Appellate Court found that the appellant-defendant-OP2 had argued on the point of subletting as also on the decree declaring them trespassers on the land of the lessee under the State Government. The Ld. Appellate Court found no illegality or irregularity in the judgment of the Ld. Trial court and therefore dismissed the appeal. As stated above the second appeal too stood dismissed.
To the mind of this Court the point with regard to the alleged fraud and forgery of the tenancy agreement dated 1st October, 1995 was always available to the OP2-complainant-defendant in the suit. However, such issue was not brought to the notice of the Ld. Trial Court and therefore, no issues connected to such forgery or fraud were framed by the Ld. Trial Court. On the other hand the Ld. Trial Court proceeded on the basis of the material documents which were marked Exbts. and, on the evidence of the plaintiff-PW1-present petitioner since the OP2-defendant did not adduce any evidence.
In the above view of the matter it cannot be denied that the allegations of the OP2-complainant have been purposively designed at the end of the civil action.
Therefore, admittedly the point with regard to the alleged fraud and forgery of the document dated 1st October, 1995 was available to the OP2-defendant to be taken throughout in the civil proceedings but he did not avail of such remedy. Neither did the OP2-defendant challenge the validity of the agreement dated 1st October, 1995 and allowed the agreement to run its legal course throughout the subsistence of the civil action inter se the parties from 2004 to 2013 - that is for a period of 9 years.
Having lost in the civil action and evicted from the first floor, the OP2-complainant has now allegedly transgressed beyond the erstwhile tenancy and forcibly occupied the ground floor. To allow the OP2- complainant to take recourse to criminal action in respect of the material document which was not agitated by him in the civil action, shall amount to a travesty of justice. It is on record that not once but twice the OP2-defendant has taken recourse to the process of criminal law and in the first complaint the Investigating Officer filed a closure report reporting the falsity of the complaint and seeking prosecution of the wife-OP2-complainant under Section 211 IPC. The relevant portion of the report reads as follows:-
"Hence, after consulted with I/C BDN (East) P.S. I submitted FIR No. 43/2012 dated 09.07.2012 u/s 447/323/506(II)/379 IPC as false as well as the complaint is totally false. Accordingly, I submit prayer for necessary permission to submit prosecution u/s 211 IPC against the complainant Ruma Pandey, keeping the fact in view of the complot. being informed.
Sd/-
B. Jana 09.07.2012."
Now at the end of the day the OP2 has come up with the present complaint. In the facts of the present case while this Court is conscious of the legal position that powers under Section 482 CrPC should not be used to stop investigation where the entire facts are incomplete and hazy as pointed out by Sri Dutta on the strength of several authorities (supra), however, this Court also finds that there is no straightjacket formula with regard to the circumstances in which the powers under Section 482 CrPC can or cannot be exercised.
Admittedly, in the facts of this case the rights of the parties flowing out of their relationship of landlord and tenant based on the document in question being the tenancy agreement dated 1st October, 1995 have ripened up to the second appeal stage. Therefore with regard to the legal position surrounding the document dated 1st October, 1995 it is noticed that the due process of law culminating in a civil action in favour of the petitioner cannot be allowed to be frustrated by allowing the OP2-complainant to negotiate a parallel post facto criminal action on the self-same facts and documents.
In this connection useful reference may be made to AIR 2008 SC 251=2007 (12) SCC 1 (Inder Mohan Goswami & Anr. vs. State of Uttaranchal & Ors. at Para 45 which reads as follows:-
"The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained."
This Court is also required to notice the long delay by the Investigating Officer in acting upon the material document which, as submitted by Sri Ghose, Ld. State Counsel, is yet to be seized. Such delay in seizure of the only material document alleged in the complaint and no prayer having been made to such effect before the Ld. Trial Court, the memo of evidence submitted by the Investigating Officer to the Ld. State Counsel mentions as follows:-
"Date & Hour of Occurrence: 01.10.1995 to till date. Place of Occurrence: BL-79, Sec-II, Salt Lake, Kol-91, P.S.- BDN East.
Seizure: Nil.
Documentary Evidence: Not collected.
Investigation: During Investigation of the case, I have tried to contact with the complt. several times to produce documents which are related in this case, but he did not produce the same, then I served notice U/S 41A Cr.PC to the complt. also all the FIR named accd. persons and evidences forth coming of the case."
In the above view of the matter bestowing further latitude to the investigation shall constitute further harassment to the petitioner in as much as it is apparent from the records that the complainant neither produced evidence before the Civil Court nor is she cooperating with the investigation. Having regard to the allegation of a fraudulent document, if at all, the same ought to have been brought to the notice of the competent Civil Court at the first instance and the OP2-complainant having remained silent of such fact, to allow the criminal proceedings to continue further shall amount to a failure to exercise inherent powers of this Court for the ends of justice.
For the above reasons the proceeding being Bidhannagar East Police Station Case No. 43 of 2014 dated 2nd April 2014 corresponding to GR 304 of 2014 pending before the Additional Chief Judicial Magistrate, Bidhannagar East are quashed.
CRR 2023 of 2014 accordingly stands allowed.
Taking note of the submission made by Sri Sarjati Dutta, the prayer of the Investigating Officer to prosecute the wife of the OP2- complainant under Section 211 IPC in terms of his report dated 9th July, 2012 in connection with Bidhannagar East P.S. Case No. 187 of 2011 dated 5th December, 2011 which is pending for a long time, this Court directs the Ld. ACJM to consider the prayer without further delay on its own merits. The petitioner is granted leave to communicate this direction to the Ld. ACJM.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)