Calcutta High Court (Appellete Side)
Janmenjoy Das vs The State Of West Bengal And Another on 17 May, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1 17.05.13
CRR 1259 of 2013 Janmenjoy Das Versus The State of West Bengal and another Mr. Prabir Mitra ....for the petitioner Mr. Navanil De ....for the Defacto complainant Mr. Amartha Ghosh ...for the State This is an application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code of 1973) praying for quashing the charge sheet being No.187 of 2012 dated 10.11.2012 as well as the entire criminal proceeding being G. R. case No.993 of 2012 arising out of Durgachak police station case No.146 of 2012 dated 14.08.2012 under Section 341 / 323 / 325 / 307 / 376 / 34 of the Indian Penal Code, 1860 now pending before the learned Additional Chief Judicial Magistrate, Haldia, East Midnapur.
It is the case of the petitioner that O. P. No.2 Kumari Mallika Das being daughter of the present petitioner lodged a false complaint dated 14th of 2 August, 2012 against the present petitioner and four others which initiated said specific police case being Durgachak police station case 146 of 2012 dated 14.08.2012. In said complaint it was alleged that said defacto complainant Mallika Das not being able to bear further torture meted upon her by her alleged father Janmenjoy Das (present petitioner) started to reside in the house of one Ambu Prova Sarkar for sometime past. On 9th of August, 2012 her so-called father threatened her that if she did not return to the house of her father he would murder Ambu Prova Sarkar as complainant started to disclose the activities of present petitioner and his men. The complainant being frightened left her place of shelter and reached Talpukur next day at 10 A. M. The present petitioner and four accused persons named therein came there. At the instance of the present petitioner other accused persons started to threaten her by showing knife as well as by using words. At that time accused Zakir suddenly pushed her down violently by the dash of a running motorcycle. The complainant lost her sense and regained the same in Haldia hospital. It was 3 further alleged that those accused persons were anti- social and were engaged in the women flesh business. Those accused persons committed rape upon the complainant and also took her to different places for employing her in the illegal flesh trade. The accused No.1 (petitioner) also tried to sell her in the flesh trade at Kolkata in the name of getting her married with accused No.2 Somnath Kalsa. Those accused persons at any time may murder the complainant or her shelter giver. She later learnt that accused No.1 (petitioner) was not her real father.
Learned counsel for the petitioner Janmenjoy Das, submits that as per said complaint there was specific allegation of threatening and assault against accused No.3 to 5 but in the charge sheet the I. O. prayed for their discharge which showed that the complaint was a false one.
He next submits that though the complainant described herself as Kumari Mallika Das but she filed one case being M. P. Case No.626 of 2010 against accused No.2 Somnath Kalsa and his relations under Section 498 A /406/323 describing Somnath Kalsa as 4 her husband and the present petitioner in the witness list as her father. It is further submitted that said M. P. case No.626 of 2010 gave birth to Sutahata Police Station Case NO.310 of 2010 dated 02.11.2010 under Section 498A/406/323 of the Indian Penal Code and 3 & 4 of the Dowry Prohibition Act against her husband Somnath Kalsa and others and that a charge sheet was filed in that case.
It is further submitted that present petitioner also filed an application being Misc. Case No.197 of 2010 against Somnath Kalsa describing him to be her husband and praying for maintenance which was allowed ex parte. It is submitted that the enclosed photcopies of the certified copies of those complaints clearly show that the defacto complainant (O. P. No.2) admitted present petitioner as his father and accused Somnath Kalsa as her husband in those petitions filed by her earlier though she is trying to deny those relations in the present complaint by making false allegations. Learned counsel for the petitioner submits that the medical report of the defacto complainant, the copy of which has since been 5 supplied to the present petitioner accused, did not disclose any grave injury on her person over the alleged incident dated 10th of August, 2012.
Learned counsel for the petitioner next submits that the defacto complainant did not state either date or place when she was subjected to sexual torture by the accused persons and that there was also no corroborative material on that point. It is further submitted that in view of said alleged denial of paternity of the petitioner father by the defacto complainant, her mother Durga Rani Das filed an application dated 19th of March, 2013 praying for DNA test of the defacto complainant for refuting her claim that Janmenjoy (petitioner) was not her real father. According to him, learned lower court wrongly rejected said petition of Durga Rani Das by an order dated 25.03.2013. He further submits that the I. O. has failed to collect even a single eye witness either of the alleged incident of threatening and assault etc. on 10.08.2012 or of the alleged incident of subjecting the defacto complainant to sexual harassment and / or to engage in flesh trade by the 6 present petitioner or by any other accused of the case. According to him, the charge sheet was filed mechanically without any material and that the instant criminal case should be quashed.
Learned counsels appearing for the State as well as for the defacto complainant (O. P. No.2) have vehemently opposed said prayer of quashing of the criminal proceedings. It is submitted that after investigation the I. O. has submitted charge sheet on the basis of materials collected by him during investigation. According to them this court at the time of hearing of this application cannot judge the veracity of those materials to prejudge whether those materials will culminate into conviction of the accused persons or not. It is further submitted that the petitioner may very well take all these issues at the time of hearing on the point of framing of charges and that this court should not quash the criminal proceeding at this stage.
I have considered the submissions made by learned counsels of the parties. Perused the averments made in the applications as well as enclosed papers. 7 There is no denial that the statements made by the defacto complainant (O. P. No.2) in her complaint were contradictory to her statements made in some previous criminal proceedings involving accused Somnath Kalsa and the present petitioner. In our country there is a trend of lodging a complaint with coloured and exaggerated version. But that by itself cannot throw out the complaint as a whole. Apart from that the petition of complaint is not a piece of evidence. It can only be used by the adversary during trial for drawing contradictions and omissions on the part of the defacto complaint. It is true that no eye witness either of the alleged incident dated 10th of October, 2012 or of the instances of sexual torture upon the victim girl could be collected by the I. O. during investigation. But that by itself cannot be a ground to throw away the defacto complainant's case altogether without giving an opportunity to the defacto complainant to prove her case in a court of law as per rule. It goes without saying that a criminal case can end in conviction even on the basis of the evidence of a single witness if his / her evidence 8 stands the test of cross-examination and is found to be trustworthy by the court. In this connection it is also to be noted that though the defacto complainant tried to deny the present petitioner as his natural father but there is no scope of allowing the prayer of the DNA test of the defacto complainant to disprove the same as it was not the point in issue in the criminal case. It appears that the defacto complainant gave statements before learned magistrate which were recorded under Section 164 of the Cr. P. C. In said statements she alleged that she was subjected to sexual harassment and to flesh trade by the present petitioner and the other accused Somnath Kalsa. At the time of hearing of an application under Section 482 of the Code of Criminal Procedure it will not be proper for this court to reassess the materials to ascertain whether an order of conviction can be obtained in the trial or not. The prosecution should be given the opportunity to prove the case as per law. In view of the nature of allegations made against the petitioner and another and the materials collected during the investigation it cannot be said that the continuation of this criminal 9 proceeding will amount to be an abuse of the process of the Court.
In view of the discussions made above this application is hereby dismissed on contest. However, I make it clear that this court has no occasion to go into the merit of the case and that the petitioner will be at liberty to take all the defences taken in this application during hearing on the point of framing of charge as well as during trial.
Urgent photostat certified copy of this order be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)