Calcutta High Court
Smt. Chander Mohini Khuller vs State Of West Bengal And Anr. on 8 May, 1995
Equivalent citations: (1995)2CALLT56(HC)
JUDGMENT Nripendra Kumar Bhattacharyya, J.
1. By this revision one of the accused persons has challenged the proceeding pending in the Court of the learned 10th Judicial Magistrate, 24-Parganas (South) in complaint case No. C-1526 of 1993 T. R. No. 302 of 1993 and also for setting aside the order of taking cognizance and issuance of process against the accused petitioner and others under Section 120B, 114 and 448 of the Indian Penal Code passed by the said learned Magistrate by his orders dated 7th September, 1993 and order dated 29th January, 1994 respectively and also rejection of the petition of the petitioner under Section 205 of the Cr. Procedure Code. The relevant facts for the disposal of this application are delenated hereunder :
(a) In his petition of complaint the complaint/opposite party No. 2, herein, inter alia, alleged that he is an employee and a reprentative of "New Road Nyas" a public charitable trust located at Premises No. 1A, Lal Behari Shah Sarani, Calcutta within the jursidiction of Alipore Police Station.
(b) It has further been alleged that the present accused/petitioner was the leassee in respect of the 1st floor of premises No. 1A, Lal Behari Shah Sarani formerly known as New Road, Calcutta and the lease has expired sometime in 1986.
2. The accused-petitioner left the premises in 1986 giving illegal possession of the 1st ffoor of the said building to accused No. 2, Baldeb Chowdhury, who had tresspassed into the said 1st floor flat along with some Nepali foreigners and at the instigation of the present accused-petitioner, they are causing mischief to the wooden moveable propesties of the said trust such as windows, bathroom fittings, parapet Iron railings etc.
3. The trust lodged an FIR before the Alipore Police Station on 19th August, 1993 and as no action was taken on that, a complaint was filed thereafter in the Court of Sub-divisional Judicial Magistrate , Alipore, 24-Parganas (South) by the opposite party No. 2 herein and the learned Sub-divisional Judicial Magistrate after taking cognizance on that application transfer the case to the Court of the learned 10th Judicial Magistrate, Alipore by his order dated 4th September, 1993.
4. The Id. Magistrate after perusing the materials on record and considering the initial depositions of the complaint and his witnesses present directed issuance of process against the petitioner herein and other accused-persons under Section 120B, 114 & 448 of the Indian Penan Code by his order dated 7-9-93 and in that Court the case was registered as case No. 1526 of 93 : T.R. Case No. 302 of 1993. Date was fixed for service and appearance on 17-9-93.
5. On 21-9-94 the other accused persons, who were on bail, appeared before the Court and a petition was filed on behalf of the accused No. 1, petitioner herein, for being permitted to be represented by her pleader as contemplated under Section 205 of the Criminal Procedure Code.
6. The 1d. Magistrate fixed 2-3-94 for hearing of that petition and directed the present petitioner to appear before the Court on the next date in default warrant of arrest would be issued.
7. It has further been alleged in the revisional petition that earlier the opposite party No. 2 herein made a complaint before the Judicial Magistrate, Alipore against the petitioner and other two persons alleging offence against them under Section 427/403/448/420 of the Indian Penal Code and the case was registered as C-544 of 1993. The learned Magistrate in that case refused to issue any process against the petitioner.
8. Therefore, the opposite party No. 2, herein made another application agaitst the petitioner and other two persons alleging that the accused persons have committed an offence under Section 504 of the Indian Penal Code and the learned 3rd Judicial Magistrate, Alipore directed issuance of process against the petitioner and others under Section 504 of the Indian Penal Code by his order dated 16th July, 1994 in case No. C-988 of 1993 and against that a revision has been preferred before this Hon'ble High Court which is still pending.
9. In this background that revisional petition has been filled for quashing the proceeding in this case and also for setting aside of the order refusing the prayer of the petitioner herein for being represented through her learned Ad- vocate.
10. Mr. Banerjee contended for the petitioner that bar under sub-sec tion (2) and section (3) of 397 of the Criminal Procedure Code read with Section 401 of that Code will not operate as a bar for exercise of the power under Section 482 of the Code as no particular order has been challenged in reaiity but the entire proceeding has been challenged.
11. Mr. Sengupta for the private opposite party and Mr. Chatterjee for the State, on the other hand, contended that Section 492 of the Code of Cri- minal Procedure will not be available in this case inasmuch as the accused petitioner has also challenged the orded of 7th September, 1993 by which cog- nizance was taken and also the order dated 29th January, 1994 by which the prayer of the petitioner has been refused under Section 205 of the Code of Criminal Procedure for being represented by her pleader
12. According to Mr. Sengupta and Mr. Chatterjee in such circumstances the bar under sub-section (2) and (3) of Section 397 will be operative even in case of an application under Section 482 of the Code of Criminal Proce- dure.
13. I do not subscribe to the view that has been expressed by Mr. Sen- gupta and Mr. Chatterjee inasmuch as that sub-section (3) of 397 or Sec- tion 401 does not contemplate quashing of the proceeding though the Sections contemplate setting of an order. Only under Section 482 of the Code of Criminal Procedure a proceeding can be quashed. By the instant applica- tion under Section 482 the petitioner has challenged the proceeding for qua- shing and colaterally challenged the order as indicated earlier. So, in my view, the revisional application is maintainable and I accordingly overrule the contenton of Mr. Sengupta and Mr. Chatterjee in this regard.
14. In the next place Mr. Banerjee contended that the procetding should not be allowed to be continued inasmuch as the allegations as made in the petitioner of complaint if remain uncontroverted even then there is no case for going into trial.
15. In this connection, he referred to Article 21 of the Constitution of India where speedy remedy of a proecution has been thought of.
16. To bring home his contention that uncontroverted allegations against the accused though does not disclose any offence then a proceeding against the accused should not be allowed to continue. He relied on Supreme Court decisions in the case of R. P. Kapoor v. State of Punjab and also in the case of Madhu Limaye v. State of Maharashtra where the decision of R.P. Kapoor's case came up for consideration by the Supreme Court.
17. According to Mr. Banerjee the allegation as has made in the complaint if remain uncontroverted that does not disclose any offence against the accused-petitioner for going into trial and as such, the proceeding against her should be set aside.
18. On the other hand, Mr. Sengupta and Mr. Chatterjee contended that there are materials on record disclosing offence against the accused even if the same is uncontroverted. There is case against the accused for going into trial. For the proposition that there are materials on record for going into trial even if the allegations remain uncontroverted then quashing of the proceeding is not contemplated under Section 482.
19. In support of his contention Mr. Sengupta relied on the case of Mrs. Dhanalakshmi v. R. Prasanna Kumar a Supreme Court decision reported in. .
20. In Mrs. Dhanalakshmi's Case (Supra) while holding that in a proceeding instituted on complaint exercise of the inherent power to quash the proceeding is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppresive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is malafide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.
21. So, the ratio that has been laid down by the Supreme Court in the case of Dhanalakshmi (supra) and also in other cases that if on a reading of the petition of complaint it appears that the same discloses an offence against the accused no matter whether the trial will end in conviction or acquital the proceeding should not be scuttled and for that purpose a meticulous study of the complaint is not contemplated of.
22. A xerox of the petition of the complaint is annexed as Annexure 'A' to the revisional, application wherefrom it appears that the present petitioner was a leassee in respect of the premises in question and holding the same under a lease agreement for 21 years. It has further been alleged that even after the expiry of the period of the lease as the premises has not been vacated by the petitioner an ejectment suit has been instituted against her by the trust authorities and the same is pending for disposal in the Civil Court at Alipore. It has further been alleged that during the pendency of the suit the petitioner herein had left the premises and in conspiracy with accused No. 2 & 3, the accused No. 1 trespass into the premises and caused mischief.
23. So nowhere in the petition of the complaint the allegation has been made that the petitioner in the instant petition had ever made over possession of the premises which was let out to her by the landlords or to the owners of the premises. Only allegation has been made that she had left the premises. This clearly indicates that the accused petitioner had not made over the possession of the premises and she was in possession of the premises in question.
24. The allegation of mischief, criminal conspiracy and house; trespass is intertwined with the offence of house trespass as alleged in the petition of complaint. The question of house trespass will come only in case where the accused is not possession of the property. But in the instant case the. petition of complaint does not disclose that the accused petitioner was not in possession of the property and only the allegation has been made that she had left the premises. There was no allegation that she made over the possesion of the property to the landlord or the trustees. On the contrary, there are indications and allegations in the petition of complaint that for her eviction a civil suit is pending in the Alipore Court. So, unless the offence of house trespass is satisfied the other two offences under Section 114 and 120B of the Indian Penal Code cannot be sustained.
25. As there was no house trespass and as there was no allegation the petitioner had vacated the premises in my view the allegation even remain uncontroverted there is no case for going into trial and the proceeding is liable to be quashed against the accused petitioner. The proceeding in case No. 1526 of 1993 : T.R. Case No. 302 of 1993 pending in the Court of 9th Judicial Magistrate, Alipore, 24-Parganas (South) is accordingly quashed against the petitioner. The revisional application is accordingly allowed.