Calcutta High Court (Appellete Side)
Akhtar Ahmed & Ors vs The State Of West Bengal on 9 October, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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09/10/2013
CRR No. 1350 of 2006
Akhtar Ahmed & Ors.
vs.
The State of West Bengal
Mr. Sudip Moitra
Mr. Soumen Dutta
Mr. Subhas Jana
... For the petitioner
Mr. Anand Keshri
... For the O.P. (in-person)
This revision arose under Section 482 of the Code of Criminal
Procedure for quashing of the prosecution in connection with G.R.
Case No. 631 of 2004 arising out of Contai P.S. Case No. 223 of
2004 under Sections 143, 448, 323, 380 and 109 IPC.
The substance of the case is as follows:
One Kajal Rani Das lodged a complaint on 23.11.2004 before
the learned C.J.M., Tamluk on the ground that she was severely
assaulted by her husband and other members of in-laws. Police
started Contai P.S. Case No. 218/2004 under Sections
498A/406/34 IPC. She also filed another case under Section 125 of
the Code of Criminal Procedure on 14.11.2004 against her husband.
Pursuant to that Police case her husband Kamalendu @ Khokon
Das was arrested on 18.12.2004 and was produced before the
learned Magistrate at 2 p.m. during Police file and he was granted
bail on 18.12.2004 by the learned Sub-divisional Judicial
Magistrate, Contai. The said Kamalendu @ Khokon Das lodged a
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petition of complaint before the learned Sub-divisional Judicial
Magistrate i.e. on 18.12.2004 with a prayer for treating the petition
of complaint as FIR under Section 156(3) of the Code of Criminal
Procedure on the allegation that the petitioners herein being the
accused persons trespassed into the house of the said Kamalendu @
Khokon Das on 2.12.2004 and looted away certain valuable articles,
deed, ornaments etc. as mentioned in the complaint after assaulting
him and also after threatening him with deadly weapons and tying
him with rope. If it is scrutinized thoroughly it would be clearly
evident from the complaint that the complaint which was lodged by
Kamalendu @ Khokon Das on 18.12.2004 has got no legal existence
in the eye of law. It is settled principle of law if the complaint has
got no legal existence, no prosecution can be carried on the basis of
that complaint. It is material to mention that how a person named
Kamalendu @ Khokon Das could lodge a complaint before the
learned Magistrate at 10.30 a.m. on 18.12.2004 by presenting
himself on dock when he was arrested by the police on the self-same
day and produced before the learned Magistrate at 2.00 p.m. when
the police filed was called on for hearing on 18.12.2004.
Therefore, it is very much material to draw judicial notice to
the above fact inasmuch as no prosecution on the basis of a
complaint which has got no legal existence in the eye of law can be
carried on. It is further noted that the entire complaint lodged by
Kamalendu @ Khokon Das was filed by him with a prayer for treating
the same as FIR under Section 156(3) of the Code of Criminal
Procedure by presenting himself on dock and thereafter taking
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cognizance of the matter from the complainant, the order was passed
by the learned Magistrate upon giving direction to Police to treat the
same as FIR but it is quite impossible on the part of an arrested
person to lodge this complaint which enabled the learned Magistrate
to take cognizance thereupon.
However, from the act of Police officials it is evidently clear
that they were sitting as silent spectator as regards the complaint
lodged on 1.12.04 against the petitioners who have been made
accused in connection with offence under Sections 366, 439, 497
IPC whereupon Contai P.S. case No. 222/04 dt. 18.12.2004 was
started at 12.05 hrs. They sat tight over the matter till 17.12.04
without starting any case.
Thus, it is clear that most probably the Police was waiting
for the second complaint, filed by Kamalendu Das and immediately
they started two police cases on the same day on 18.12.04 at the
specific persuasion of the defacto-complainant Kamalendu Das who
was on the lookout for giving custodial harassment to the petitioners
in order to feed fat his grudge. The date of occurrence in the alleged
complaint is 2.12.04 in P.S. Case No. 223/04. But such allegation
had not been drawn to the notice of the police by lodging any
complaint by Kamalendu Das earlier than 18.12.04 and on 18.12.04
when he was arrested in connection with Contai P.S. Case No.
218/04 started by his wife Kajal Rani Das and after being granted
bail he lodged this complaint.
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From the fact of the instant case, it is reflected that the story
of Contai P.S. Case No. 223/04 is totally concocted one and
frivolous. Even assuming for the sake of argument that the story as
made out is true, in that event, Kamalendu Das ought to have lodged
such complaint immediately the next day on 3.12.04 as he was not
in custody at that time. He was silent. As soon as he was arrested
in the case filed by his wife, he made out this story relating to looting
of articles in order to escape from the wrath of police case started
against him by his wife.
It further appears that the alleged looted articles were seized
from the premises of Saha Farid Ali Sha as would be evident from
the seizure list but surprisingly enough in the seizure list it has not
been specifically mentioned from whose custody the alleged articles
were seized and no names of the members of the house of the Saha
Farid Ali Sha were mentioned in the seizure nor the copy of the
seizure list was handed over either to Saha Farid Ali Sha or any
other member of his family was given in order to substantiate the
factum of seizure by the police. In such view of the matter, the
seizure list is not the actual seizure list in true sense of the term
and, therefore, the alleged articles as reported to have been seized
from the premises of Saha Farid Ali Sha were not actually recovered
therefrom but the police official sitting in the Thana has prepared
the seizure list with the help of their own men and thereby no
prosecution can be carried on on the basis of such fake seizure list
which has got no value in the eye of law and if the seizure is bad in
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law, the prosecution case has got no leg to stand upon for offence
under Sections 143, 148, 323, 380/109 IPC.
It further appears that the case started under Sections 143,
448, 323, 308, 380 and 109 IPC but the offence under Section 308
IPC has been dealt by the police official suo-motu and naturally the
question may arise as to how such vital Section was added at the
initial stage and as to how the said Section was omitted at the time
of submission of charge-sheet. This implies that the investigation
has been made perfunctorily by the police at the instigation of the
complainant. The police officer acted in a partial and unfair manner,
being influenced by the complainant, Kamalendu Das.
It is further stated that the delay in lodging this complaint
by the complainant Kamalendu @ Khokon Das has made the
complaint infructuous. The allegation is false and frivolous on the
basis of which no prosecution can be carried on or when the
compliant itself is illegal, the entire prosecution is liable to be
quashed. This complaint is nothing but an afterthought matter
when the defacto-complainant was arrested in connection with
earlier Police case No. 218/04 where most of the petitioners are
witnesses. Out of grudge the complaint was lodged by the said
Kamalendu Das.
It is submitted that the court has got inherent power to
quash the prosecution when it is found that by way of abusing the
power, the prosecution is carried on where there is no material
against the petitioner or when the complainant has itself got no
existence in the eye of law. In such a situation, the court may
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exercise its power by quashing the prosecution under Section 482 of
the Code of Criminal Procedure.
Being aggrieved by and dissatisfied with the purported
complaint dt. 18.12.2004, this revisional petition has been filed
before this court.
The accused Akhtar is reported to have expired. So, the
case against him stood abated.
The point for consideration is if the concerned complaint
relating to this revision is maintainable or not.
The learned Counsel for the Petitioner contended that the
materials on record placed before the court will amply demonstrate
that the story of the complainant cannot be believed. He submitted
that on 18.12.2004 the instant GR case No. 631/2004 under
Sections 143/448/323/380/109 IPC was charged against the
present petitioners. But the fact remains that his wife, Kajal Rani
Das lodged a complaint on 23.11.2004 to the effect that she was
severely assaulted by her husband, the present petitioner and that is
why she lodged the Contai P.S. Case No. 223/04 on 18.12.04 under
Sections 498A/406/34 IPC and she also filed another application
No. 125 against her husband on 14.11.2004. And it is fact that
some of the present petitioners are witness there. Pursuant to that
case, Kamalendu Das was arrested on 18.12.2004 and produced
before the learned Sub-divisional Judicial Magistrate at 2 p.m.
during holiday and was granted bail on 18.12.2004 by the learned
Magistrate thereafter. But surprisingly it appears that on the self-
same day he lodged a petition of complaint before the learned SDJM,
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Contai by presenting himself before the learned Court below at 10.30
a.m. with a prayer for treating the petition of complaint as FIR under
Section 156(3) of the Code of Criminal Procedure against the present
petitioners alleging that they looted away certain valuable ornaments
and other articles etc. and threatened him.
Learned Counsel for the Petitioner drew my attention to
annexure P. 4, a certificate issued by the Criminal Bar Association,
Contai showing that police remand file is generally taken up at 2
p.m. on working days and on holiday at 12 noon by the learned
Magistrate. So, it is quite improbable while the present petitioner
was in custody before 2 p.m. that he was present to file the petition
of complaint at 10.30 a.m. on 18.12.04 i.e. on the same day. This
argument appears to have sound basis. The learned Counsel for the
Petitioner argued that the Police authority submitted a stereotype
charge-sheet without considering the ground reality. In order to
shield this aspect, the police while arresting the said Kamalendu @
Khokon Das had intentionally left the column for noting of the time
of arrest in the memo of arrest "blank" though he noted the date of
arrest as 18.12.04.
The learned Counsel for the State, on the other hand,
submitted that there is no ground for quashing of the charge-sheet
against the petitioners because factual aspect is there.
It is relevantly mentioned that the present petitioners have
filed certified copy of order No. 71 dated 1.6.2012 passed in ST
03/March/2012 wherefrom it appears that Kamalendu @ Khokon
Das on 1.12.04 filed a petition of complaint under Section 156(3) of
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the Code of Criminal Procedure and the police started that case on
18.12.04under Sections 366/34 IPC wherein the complainant alleged that his wife Kajal Rani Das was abducted by Akhtar Ahmed and two others including the present petitioners. That order drives a nail into the coffin of the case of Kamalendu Das.
Further, it appears that Kajal Rani Das was recovered. She appears to be a public figure being a local counsellor and a mother of two children. She informed the court that the allegation made against her is false, and fabricated. This goes to show that the allegation and complaint made by Kamalendu @ Khokon Das against the present petitioners were baseless. The Hon'ble Supreme Court set aside the framing of charges vide Criminal Appeal No. 320/2012 dt. 30.1.12.
Also it was argued by the learned Counsel for the Petitioner that from the seizure list annexed with the charge-sheet it is seen some gold ornaments were seized from the premises of Saha Farid Ali Sha. That too does not indicate that he stole alleged ornaments and other articles from the house of Kamalendu Das. Rather it appears that some of the present petitioners were witnesses in the case filed by his wife against Sri Das.
So, a combined reading of the attached documents with reference to the petition of complaint and the facts and circumstances lead to suggest that the story as brought by Kamalendu @ Khokon Das is not prima facie believable and possible.
This being the position, I find merit in the revision. Accordingly, the revision stands allowed. 9 G.R. Case No. 631/04 arising out of Contai P.S. Case No. 223/04 stands quashed.
Urgent Photostat certified copies, if applied for, be supplied according to rules.
(Toufique Uddin, J.)