Calcutta High Court (Appellete Side)
Bhakti Nirmal Acharya Maharaj vs Unknown on 17 April, 2012
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
6. 17.4.2012.
a.s. C.R.R.2714 of 2011
With
C.R.A.N.1272 of 2012
With
C.R.A.N.7 of 2012.
In Re : An application under Section 482 of the Code of Criminal
Procedure.
In the matter of : Bhakti Nirmal Acharya Maharaj.
........Petitioner.
Mr. Sudipto Moitra,
Mr. Sandipan Ganguly,
Mr. Somopriyo Chowdhuri.
.......For the Petitioner.
Mr. Ranjan Roy,
Mr. Ranajit Roy,
Mr. A. Bhattacharyya.
.......For the O.P.No.2.
Mr. Amarta Ghosh.
......For the State.
This revisional application under Section 482 of the Cr. P. C.
has been taken out by Bhakti Nirmal Ahcarya Maharaj praying for
quashing of the proceeding in G. R. Case No.286 of 2010 arising out
of Nabadwip Police Station Case No.293 of 2010 dated 13.11.2010
under Sections 467/468/471/427/323/120B of the I.P.C. read with
Section 14 of the Foreigners Act mainly on the following grounds;
a) that the petitioner being a valid passport holder which is
still in force, cannot be declared and prosecuted as
foreigner;
b) that the annexures P-4, P-5 and the birth certificate
issued by Registrar of Death and Birth, Nabadwip
Municipality altogether indicates that the petitioner was
born on 12.2.1962 in India at Gorret Hospital, Nabadwip;
c) that all the disputes are pertaining to a Math and property
thereof over which civil suit and probate case are pending
and an order of interim injunction has been passed in
favour of the petitioner;
d) that no case is made out against the petitioner in the
F.I.R. as well as in the charge sheet and continuation of
the proceeding would be amounting to abuse of the
process of the Court.
In substance, the factual aspect of the case is that one Sagar
Maharaj @ Jagatbandhu Roy Biswas lodged one F.I.R. with I.C.
Nabadwip Police Station, Nadia alleging therein that the petitioner
herein who is known as Bhakti Nirmal Acharya @ Nemai Das @
Binod Brahammachary @ Bivas Sikdar infiltrated in India from
Bangladesh in the year 1993 and started residing in Purbasthali and
had taken shelter in Chaitanya Saraswat Math, Nabadwip where he
was baptized directly from Bhakti Sundar Gobinda Maharaj @
Gobinda Das. Thereafter, the petitioner by illegally using the ration
card of Nemai Das, forged voter card and birth certificate which was
cancelled initially but on 19.4.2010, again by using the forged voter
I.D. card and birth certificate, somehow, he managed to obtain a
birth certificate with Registration No.224. He tried to establish
himself as Nemai Das, a student of Haritola Bidyapith. He also
obtained passport by using forged ration card, voter I.D. card, birth
certificate and school certificate. He also manufactured a Will in
respect of all the properties of Math and had been misappropriating
the properties of the Math for his wrongful gain. He had also been
withdrawing money from different Bank accounts by forging
signatures with the help of Mangal Maharaj @ Narayan Saha,
Damodar Adhikary, Jamuna @ Joes Melani, Mahananda
Brahammachary @ Mikel Rock and Dr. Pratik Kumar Sen and many
others. On 27.10.2010, he trespassed into the room of Sagar
Maharaj @ Jagatbandhu Roy Biswas, caused mischief by breaking all
his articles and assaulted him also.
On the basis of the said F.I.R., Nabadwip Police Station Case
No.293 of 2010 dated 13.11.2010 under Sections
467/468/471/427/323/120B of the I.P.C. was started. The case
was investigated into and in the meantime, Section 14 of the
Foreigners' Act was added to the above offences on the prayer of the
I.O.
The petitioner tried for anticipatory bail both in the Court of
the learned Sessions Judge and High Court unsuccessfully. Warrant
of proclamation of arrest has been issued against him by the Court
upon submissions of the charge sheet.
The petitioner has come up with this application for quashing
of the proceedings on the grounds already stated.
Mr. Sudipto Moitra, learned Counsel appearing on behalf of
the petitioner contends that since the passport is still valid and in
force, the I.O. had no reason to prosecute the petitioner under
Foreigners Act because so long the passport remains valid, the
petitioner should be treated as an Indian citizen. In support of his
contention, he refers to the decision of Bombay High Court in the
case of A. G. Kazi & Ors. Vs. C. V. Jethwani, reported in A.I.R. 1967
Bombay 235. It was held by the Court that a passport is a peace of
evidence as to the nationality. The grant of a passport is nothing but
an administrative action of the Government in exercise of its
executive or administrative function which is subject to judicial
review by Court in exercise of its powers under Section 226 and 227
of the Constitution.
Mr. Moitra refers to the decision of the Hon'ble Apex Court in
State of Gujarat Vs. Yakub Ibrahim, reported in A.I.R. 1974 SC 645.
It was held that it was not proper for the prosecuting authorities to
have proceeded with the case against the respondent when upon the
facts set up by the respondent, it became clear that the respondent could not be prosecuted or convicted without determination under Section 9 of the Citizenship Act, 1955, that he had voluntarily acquired the Citizenship of Pakistan between 26th January, 1950, and commencement of the Citizenship Act on 30th December, 1955. It was further held that the passport shall be the conclusive proof that its holder has acquired the citizenship of the country whose passport he holds.
Mr. Moitra further takes this Court to annexure P-3, the ad- interim interim injunction passed in O.S.19 of 2010 on 26.11.2010 in favour of the petitioner, the Annexure P-4, the photocopy of the letter written to the petitioner by Joint Secretary, Government of West Bengal, P-5, the photocopy of certificate given by Registrar, Birth and Death, Nabadwip Municipality clarifying the clerical mistake in issuing birth certificate registered under No.216A dated 12.2.1962 and the certificate of birth issued in favour of Nemai Das dated 19.4.2010 under Registration No.224 dated 15.2.1962. He submits that these documents altogether indicates that Nemai Das, i.e., the petitioner who became Bhakti Nirmal Acharya Maharaj after baptism was born on 15.2.1962 in Nabadwip. Therefore, question of forging the birth certificate, voter I.D. card, school certificate etc. had never arisen so far as the petitioner is concerned.
Mr. Moitra submits further that when the actual dispute is pending in Civil Court, this Court should not encourage criminal prosecution. In support of his contention, he also refers to a decision of this Court in Tajmul Hossain Shah @ Taju Shah & Anr. Vs. The State of West Bengal & Anr., reported in (2006) 1 C. Cr. LR (Cal) 177.
Mr. Ghosh, learned Counsel appearing on behalf of the opposite party/State of West Bengal submits that there are materials in abundance in the C.D. justifying filing of charge sheet against the petitioner under the offences mentioned therein. The Civil Suit will not come in the way in continuing a criminal prosecution, if criminality is attributed to the petitioner.
Mr. Ranjan Kr. Roy, learned Counsel appearing on behalf of the opposite party no.2 submits that this Court is supposed to exercise its inherent power under Section 482 of the Cr. P. C. sparingly and with great caution in rarest of rare cases and only to see whether a prima facie case is made out or not in the F.I.R./charge sheet.
I have carefully gone through the F.I.R. as well as the charge sheet filed. Mr. Ghosh, learned Counsel appearing on behalf of the State produces the C.D. also and this Court gets the opportunity to go through it. The C.D. discloses how tactfully this petitioner has managed to become Nemai Das not being so after being infiltrated from Bangladesh in the year 1993. The seizure list shows that 1) the I.O. seized the admission register of Haritola Bidyapith and did not find the name of Nemai Das therein as a student at any point of time, 2) the photocopy of the cancelled voter list No.284 Nabadwip General Assembly Election, 3) objection notice of Mahadeb Brahammachary, 4) birth registration of Bivas Sikdar, 5) original birth registration book No.4 from 2.12.1961 to 29.12.1962 containing Sl. No.224 dated 15.2.1962 of Nabadwip Municipality and
5) P. R. 20/11 of Birth-cum-Death Register of Nabadwip Municipality. The I.O. examined not only the inhabitants of the Math but also Dibyendu Acharya, Sub Inspector of Nabadwip Municipality.
I have perused the statement of witnesses recorded under Section 161 of the Cr. P. C. by the I.O. I have also perused the F.I.R. with rapt attention. There is, no doubt, a strong prima facie case against this petitioner for committing offences mentioned earlier. It is true that the passport is original but it is the case of the prosecution that it was obtained by practising fraud and using forged documents. It might be that the I.O. has not prayed for cancellation of the passport but that fact alone does not demolish the prosecution case which has been made out prima facie in the F.I.R. as well as in course of investigation which ended in charge sheet.
It is trite law that High Court can exercise its power under Section 482 of the Code and quash a proceeding only when on the face of allegations contained in the F.I.R. together with the materials collected during investigation, no offence is made out against the accused. This principle of the Hon'ble Apex Court in State of Haryana Vs. Bhajanlal, reported in 1992 SCC (Cri) 426 has been followed by all the courts as well as the Hon'ble Apex Court consistently. Therefore, first thing for this Court to consider is whether or not the F.I.R. discloses any offence against the accused/petitioner. If it discloses and the investigation is done on the basis of such F.I.R. and ended in a charge sheet, there is little scope for this Court to exercise such a power.
At the cost of reiteration, it is stated that the F.I.R. as well as the materials in C.D. altogether establishes a strong prima facie case against the petitioner for which he can be prosecuted under the abovementioned sections. The documents relied on by the petitioner can be used by him as defence evidence. The petitioner may also invoke the provisions of Section 239/227 of the Code. This Court, while exercising the power under Section 482 of the Cr. P. C. is not supposed to delve into the facts to consider whether there is a case of acquittal or conviction likely. The appropriate stage of rising defence in a sessions case is provided under Section 227 of the Code and in a case triable by a Magistrate under Section 239 of the Cr. P. C. The points taken by the petitioner are defence case and this Court cannot delve into such factual controversy so as to quash a proceeding. This Court is not also supposed to assume the role of a trial court and embark upon an enquiry as to reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence. Truthfulness or otherwise of allegation is not fit to be gone into at this stage as it is always a matter of trial. The decisions of the Hon'ble Court in Ajoy Kr. Das Vs. State of Jharkhand, reported in (2012) 1 SCC (Cri) 564, Jhandu Pharmaceutical Works Ltd. Vs. Md. Saharul Hque, reported in 2005 SCC (Cri) 283, K. Neelaveni Vs. State, reported in (2011) 1 SCC (Cri) 219, Kamala Devi Agarwal Vs. State of West Bengal, reported in (2002) 1 SCC 555 can well be referred to in this regard.
Mr. Moitra has taken the plea that a Civil Suit is pending and an interim temporary injunction order has been passed in favour of the petitioner. Therefore, this criminal prosecution has been initiated by the defacto complainant for wrecking vengeance in order to spite the petitioner.
There cannot be any proposition of law that no criminal prosecution can be initiated simply because a civil suit is pending. Merely because an act has a civil profile that does not denude it of its criminal out fit unless the allegations fall short in making out a criminal case. It is settled principle of law that no criminal prosecution can be thwarted at the initial stage merely because civil proceedings are also pending over the self-same allegations and at the same time, there is no bar to the simultaneous continuation of a criminal proceeding even when both arise out of same prosecution, unless element of criminality is absent.
It is stated already that there are materials enough in the F.I.R. as well as in the C.D. making out a strong prima facie case against the petitioner. The materials collected in course of investigation prima facie indicate how this petitioner committed the offences alleged. There are elements of criminality and, as such, there is no bar to continue the criminal prosecution even in pendency of a civil suit.
In State of Gujarat Vs. Yakub Ibrahim (Supra), the question before the Hon'ble Court was whether the petitioner therein could be prosecuted or convicted without determination under Section 9 of the Citizenship Act, 1955 that he had voluntarily acquired citizenship between 26th January, 1950 and commencement of Citizenhip Act dated 30.12.1955. It was a case of contravention of provisions of Clause 7(iii) of Foreigners Order 1948 and thereby a commission of offence under Section 13 of the Foreigners Act.
There is no dispute as to the view taken by the Hon'ble Court. But the factual matrix of this case and the case before the Hon'ble Court are quite different. Herein, the passport is genuine but it was obtained by using forged documents and practising fraud upon the authorities. Whether it should be cancelled or not is a question to be decided by the executive authorities not by this Court.
The proposition of law taken by the Hon'ble Bombay High Court in A. K. Kazi (Supra) is not also disputed. It was a different context and related to power of passport authorities.
I find that both the cases referred to above have no application in the petition in hands.
In view of the discussions above, I find that this Court should not exercise its extraordinary power to quash the proceeding against the petitioner as sought for. The revisional application stands dismissed.
In view of the order above, both the C.R.A.N. applications are also dismissed. C.D. be returned to Mr. Ghosh, learned Counsel appearing on behalf of the State of West Bengal.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates of the parties upon compliance of necessary formalities.
(KANCHAN CHAKRABORTY, J.)