Calcutta High Court (Appellete Side)
Umaprasanna Chowdhury vs The State Of West Bengal on 16 February, 2015
Author: Shib Sadhan Sadhu
Bench: Shib Sadhan Sadhu
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Shib Sadhan Sadhu, J.
C.R.R. No.3984 of 2011 Umaprasanna Chowdhury. ... Petitioner Versus The State of West Bengal ...Opposite Party For the Petitioner : Mr. Tapas Ghosh Mr. Tanmoy Chowdhury For the State : Mr. Amarty Ghose Heard on : February 09, 2015.
Judgment on : February 16, 2015 Shib Sadhan Sadhu, J.
1. The petitioner, by means of the present petition under Section 482 of the Criminal Procedure Code, 1973, seeks to quash the entire proceedings of the G.R. Case No.416 of 2011 under Section 407 of the Indian Penal Code pending before the Court of the Learned Chief Judicial Magistrate, Suri, Birbhum.
2. An FIR was lodged by the informant Akash Kumar Banerjee, Inspector (Food & Supplies), Suri-I against one named accused (petitioner herein) on 30.06.2011 for the offence punishable under Section 407 IPC. After investigation, a charge sheet was submitted against the petitioner for the offence punishable under Section 407 IPC. Feeling aggrieved against the same, the present petition under Section 482 of Cr.P.C. was filed by the petitioner.
3. As per the F.I.R., on 29.06.2011 at about 6 P.M. it was learnt that one 407-Mini Truck bearing No.WB-53-3006 loaded with foodgrains for Public Distribution System (PDS) was going towards Ajaypur village via Seharapara. It was also learnt that on the way to Ajaypur some bags of wheat were unloaded near Nitya cabin from the said truck which had been caught by some local persons and they informed the matter to the local administration. Thereafter, as per direction of the Sub-Divisional Officer (Sadar), Suri, the informant along with Sub-Divisional Controller (Food & Supplies), Suri (Sadar) and Sub-Inspector (Food & Supplies), Suri-I rushed to Ajaypur. After arrival at the concerned M.R. dealer (Umaprasanna Chowdhury) point they could not meet with the said dealer, as he was absent. However, his wife opened the M.R. shop godown but no stock of rice and wheat and other PDS communities were found except 200 liters of kerosene oil. They took the registers and cash memoes for further verification with proper receipts.
4. Mr.Tapash Ghosh, Learned Counsel appearing on behalf of the petitioner, argued that the facts, stated in the F.I.R. and statements recorded under Section 161 Cr.P.C., even if accepted as it is, do not constitute offence under Section 407 of the IPC. He further contended that the petitioner being a licensed M.R. dealer lifted the M.R. articles from the Distributor and was transporting the same to his Ration Shop by hiring a Mini truck. On the way the tyre of the truck got punctured and so he was carrying those articles by a rickshaw van to keep the same in safe custody when the local people intervened suspecting that those were being taken away for sale secretly and informed the police. Police arrived and took away the truck and verified the documents and they were satisfied that no offence was committed by the petitioner. But the local people forced the police to start a case against the petitioner. He further contended that since the ration articles did not reach to his ration shop the Rationing Inspector could not find those articles in the Ration Shop room and the wife of the petitioner could not explain the incident which took place on the way of transporting the ration articles. He contended yet further that the petitioner in his reply to the show-cause notice issued by the Sub- Divisional Controller (SDC) , Suri (Sadar), explaining that incident and mentioning that it was a closing date and the time of visit was beyond the closing hours. The petitioner also intimated the Sub- Divisional Controller on 1st July, 2011 that he wanted to return those ration articles and thereafter, those articles were returned. Therefore, according to Mr. Ghosh, the petitioner had not committed any offence under Section 407 IPC as alleged because he is neither a carrier, wharfinger or warhouse-keeper. As such, the essential ingredients of the offence of criminal breach of trust by carrier etc. are not made out and the institution of the criminal proceeding is a sheer abuse of process of law because there was no misappropriation of Government property as alleged by the prosecution. He continued to contend that law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge-sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the Court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of framing of the charge. He cited the decision of the Hon'ble Supreme Court reported in (2013)6 Supreme 323 (Umesh Kumar v. State of Andhra Pradesh) in support of his contention.
5. On the other hand, Learned Counsel appearing on behalf of the State, argued that from the contents of the FIR and the case diary statements, a prima facie case of criminal breach of trust by carrier etc is made out. Therefore, no interference is warranted and the petitioner would be at liberty to raise defences available to him under the law in the Trial Court. His defence cannot be considered at this stage. He further contended that although while considering the application for quashing of the charge sheet, the allegations made in the First Information Report and the materials collected during the course of investigation are required to be considered but truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. He relied on the decision of the Hon''ble Supreme Court reported in (2010) 11 Supreme Court Cases 607 (K.Neelaveni V. State Represented by Inspector of Police & Others.) to strengthen his contention.
6. I have considered the rival contention advanced by the Learned Counsel for the parties in the light of the decisions placed by them and perused the entire materials available on record. I have also gone through the case diary carefully.
7. At the very outset let me refer to two recent decisions of the Hon'ble Supreme Court laying down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C.
8. In Amit Kapoor Vs. Ramesh Chander and Anr. (2013) 1 SCC (Cri.) 986 : (2012) 9 SCC 460, the Hon'ble Supreme Court has laid down that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave errors that might be committed by the Sub-ordinate Courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine where there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. If the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction.
9. In Rajiv Thapar and Others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330, The Hon'ble Supreme Court has been pleased to observe that:-
" The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."
10. Let me now examine the contentions raised by the Learned Counsel for the parties in the light of principles enumerated in the aforesaid decisions, in order to find out whether a case of quashing criminal proceedings constituted upon FIR and the charge sheet is made out so as to warrant interference by this Court invoking inherent power under Section 482 of the Code.
11. The entire allegations against the petitioner as stated in the written complaint and the case diary statements as placed on record, reveal that the petitioner while carrying the ration articles namely wheat, rice, Atta & Kerosene oil loading the same in a Mini truck (Tata-407) after lifting those from the Distributor tried to sell on the way at Seherapara, the local people intercepted and he fled away and the police came and seized those articles along with the truck. Therefore, it is evident that there are sufficient materials which establish prima facie commission of an offence.
12. It is needless to mention that the defence taken by the petitioner relates to disputed facts truthfulness of which cannot be determined at this stage and it is for him to establish such defence by leading cogent evidence at the time of trial.
13. It is settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction under Section 482 of the Cr.P.C. Since the foundation of criminal offence is laid against the accused/petitioner for the offence complained of against him under the Indian Penal Code, therefore, this Court is of the opinion that, prima facie, offence under the Indian Penal Code is made out against the petitioner.
14. Inherent jurisdiction under Section 482 of Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.
15. For the reasons aforesaid, the instant Revisional Application stands dismissed. No order as to costs.
16. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
(Shib Sadhan Sadhu, J.)