Calcutta High Court (Appellete Side)
Mollajjem Hossain & Ors vs State Of West Bengal & Anr on 24 September, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
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In the High Court at Calcutta
Criminal Revisional Application
Appellate Side
24 .09.2014
P.A. to the
Hon'ble Justice
S. Talukdar
CRR 3372 of 2012
Mollajjem Hossain & Ors.
Vs.
State of West Bengal & Anr.
Mr. Avijit Sarkar................. for the petitioners
Mr. Sompriyo Chowdhury..... for the opposite party
In this revisional application the petitioners have prayed
for quashing of the complaint filed under Section 156 (3)
of the Code of Criminal Procedure (CrPC) by the Opposite
Party no.2 (for short OP2)/complainant being Case
no.861 of 2012 in the court of the Learned Additional
Chief Judicial Magistrate, Basirhat (for short AC.JM)
which gave rise to Haroa P.S. F.I.R. no.178 of 2012 dated
1st July, 2012 under Sections 420, 468, 471/34 IPC.
The brief facts of the case, according to the
petitioners, are as follows:-
a) It is, inter alia, pleaded that the petitioner no.1 is
67 years of age, the petitioner no.2 is 62 years of
age and the petitioner no.3 is 36 years of age being
the unmarried daughter of the petitioner nos.1 &
2. All the petitioners reside in the same premises.
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b) That the OP2/complainant instituted a complaint
on 1st July, 2012 under Section 156 (3) CrPC being
Case no. C861 of 2011 before the Ld. A.C.J.M,
Basirhat alleging commission of offences under
Section 420/468/471/34 IPC against the
petitioners.
In the said complaint it is, inter alia, alleged that
when the complainant was minor, the
complainant's father, one Md. Mohasin purchased
property in the name of the complainant. After the
complainant attained majority he came to learn of
the fact that the petitioners/accused in connivance
with the sister of the complainant and sister-in-law
forged the signature of his father in several
documents and submitted such documents before
different Government departments for illegal gain.
The complainant further alleges that on the
basis of such forged signature of his father and
with the help of false witnesses the
petitioners/accused created several documents
and such forgery has come to the knowledge of the
complainant with particular reference to the fact
that the petitioner nos.1 & 2 are making deeds in
respect of the property in favour of their daughter,
the petitioner no.3.
Sri Abhijit Sarkar, Learned Counsel
appearing for the petitioners submits that the
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complaint is utterly baseless and misconceived. He
points out that the mother of the complainant, one
Samsun Nahar was the owner of the properties
comprising land measuring 114 decimals of land in
several mouzas under Police Stations Deganga and
Haroa. The said Samsun Nahar died in the year
1982 leaving behind several legal heirs. The said
legal heirs, being the minor sons and daughters,
her husband, one Sheikh Md. Mohasin for self as
one of the legal heirs of the late Samsun Nahar
sold the properties to the accused no.2, i.e. the
other daughter of Sheikh Mohasin by a deed
executed in the year 1982. Thereafter the said
Sheikh Mohasin died.
According to Sri Sarkar, at the relevant point
of time when the minor sons and daughters of the
late Samsun Nahar acquired majority and got the
right to object to the alleged illegal transfer of land
made by their late father, Sheikh Mohasin, they
however never raised any objection to such
transfer.
Sri Sarkar submits that the lands were
thereafter further transferred by a Deed of Gift and
a partition suit no.801 of 2011 is pending in
respect of the said land filed by one of the
daughters of the Late Md. Muhasin. According to
Sri Sarkar, the instant complaint is frivolous and
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the present petitioners/accused were not the
original transferors of the lands in question.
Sri Sarkar further points out that there is no
whisper of any allegation against the petitioner
no.3 who, had no role to play in the transfer of
such lands and at the relevant point of time was
only a minor when Samsun Nahar died and the
lands were allegedly transferred by her husband
Sheikh Mohasin. He submits that the present
petitioners are persons in whose favour the lands
were transferred and, if any criminal proceeding
were to lie, the same may lie only against the
original transferor namely , Sheikh Mohasin.
However, Sri Sarkar submits that in the facts of
the present case the lands were correctly
transferred by the late Sheikh Muhasin and the
dispute, if at all, is civil in nature and no criminal
proceedings can be held to lie against the
petitioners.
It is Sri Sarkar's further contention that the
allegations made in the complaint are of an
omnibus nature and there has been inordinate
delay in filing the complaint in the year 2012 in
respect of an alleged offence committed in the year
1982.
Per contra, Sri Somopriyo Chowdhury,
Learned Counsel appearing for the
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OP2/complainant submits that no interference is
called for when investigation is not complete in
respect of offences where disputed questions of
facts are involved. He relies upon the following
decisions in support of his contention.
i) State of Orissa & Anr. V. Saroj Kr. Sahu
reported in 2005 13 SCC 540;
ii) 2013 11 SCC 559 reported in C.P.Subhash
v. Inspector of Police, Chennai & ors.
(paras- 7 to 11);
iii) 2006 7 SCC 188 (para-10) in the matter of
CBI Vs. Rabi Shankar Srivastava, IAS
and Anr.;
iv) AIR 1992 SC 1930 (para-4) in the matter of
Ms. Jayant Vitamins Ltd. Vs. Chaitanya
Kumar & Anr.;
Sri Chowdhury makes the further
submission that no additional documents can be
relied upon by the petitioners excepting the
complaint. In support of this proposition he relies
upon 2004 1 SCC 691 in the matter of State of
M.P. V.s. Avadh Kishore Gupta & Anr. (paras-
8,11 and 13); 2012 1 SCC 699 (paras-13 oto 16
and 18 to 20) in the matter of Helios & Mathison
Information Technology Limited & Ors. Vs.
Rajeev Sahawnai & Anr.
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Sri Chowdhury also argues that the delay in filing
the complaint was due to the fact that the
petitioner acquired knowledge of the facts germane
to the complaint once the civil suit was filed in the
year 2011.
Heard the parties. Considered the materials
on record.
This Court notices that the Hon'ble Apex
Court in the judgment of C.P.Subhash (supra) has
held as follows:-
"The legal position regarding the exercise of
powers under Section 482 CrPC or under Article 226
of the Constitution of India by the High Court in
relation to pending criminal proceedings including
FIRs under investigation is fairly well settled by a
long line of decisions of this Court. Suffice it to say
that in cases where the complaint lodged by the
complainant whether before a court or before the
jurisdictional police station makes out the
commission of an offence, the High Court would not
in the ordinary course invoke its powers to quash
such proceedings except in rare and compelling
circumstances enumerated in the decision of this
Court in State of Haryana v. Bhajan Lal.
8. Reference may also be made to the
decision of this Court in Rajesh Bajaj v. State (NCT
of Delhi) where this Court observed: (SCC p.262,
para 9)
"9...If factual foundation for the offence has
been laid (down) in the complaint the court should
not hasten to quash criminal proceedings during
investigation stage merely on the premise that one
or two ingredients have not been state with details.
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For quashing an FIR (a step which is permitted only
in extremely rare cases) the information in the
complaint must be so bereft of even the basic facts
which are absolutely necessary for making out the
offence."
9. To the same effect is the decision of this
Court in State of M.P.v. Awadh Kishorre Gupta
where this Court said: ( SCC p.700, para 11)
"11....the powers possessed by the High
Court under Section 482 of the Code are very wide
and the very plenitude of the power requires great
caution in its exercise. Court must be careful to see
that its decision in exercise of this power is based
on sound principles. The inherent power should not
be exercised to stifle a legitimate prosecution. The
High Court prima facie decision in a case where the
entire facts are incomplete and hazy, more so, when
the evidence has not been collected and produced
before the Court and the issues involved, whether
factual or legal, are of magnitude and cannot be
seen in their true perspective without sufficient
material. Of course, no hard-and-fast rule can be
laid down in regard to cases in which the High
Court will exercise its extraordinary jurisdiction of
quashing the proceedings at any stage. .... It would
not be proper for the High Court to analyse the case
of the complainant in the light of all probabilities in
order to determine whether a conviction would be
sustainable and on such premises, arrive at a
conclusion that the proceedings are to be quashed.
It would be erroneous to assess the material before
it and conclude that the complainant cannot be
proceeded with. In proceeding instituted on
complaint, exercise of the inherent powers to quash
the proceedings is called for only in a case where
the complaint does not disclose any offence or is
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frivolous, vexatious or oppressive. If the allegations
set out in the complaint do not constitute the offence
of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the
same in exercise of the inherent powers under
Section 482 of the Code.
10. Decision of this Court in V.Y. Jose v. State
of Gujrat and Harshendra Kumar D. v. Rebatilata
Koley reiterate the above legal position.
11.Coming to the case at hand it cannot be
said that the allegations made in the complaint do
not constitute any offence or that the same do not
prima facie allege the complicity of the persons
accused of committing the same. The complaint
filed by the appellant sets out the relevant facts and
alleges that the documents have been forged and
fabricated only to be used as genuine to make a
fraudulent and illegal claim over the land owned by
the complainant. The following passage from the
complaint is relevant in this regard:
"........Thus evidently these two sale deeds
being produced by GWL i.e. 1551 of 1992 dated 10-
3-1922 and 1575 of 1922 dated 27-6-1922 are
forged and fabricated and after making the false
documents they were used as genuine to make
fraudulent and illegal claim over our lands and to
grab them. The representatives of GWL Properties
with dishonest motive of grabbing our lands having
indulged in committing forgery and fabrication of
documents and with the aid of the forged
documents are constantly attempting to criminally
trespass into our lawfully possessed lands and
have been threatening and intimidating the staff of
our Company in an illegal manner endangering life
and damaging the land. The representatives of
GWL Properties also have been making false
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statements to the Government Revenue Authorities
by producing these forged and fabricated
documents with dishonest intention to enter their
name in the government records. The present
Director in charge and responsible for the affairs of
GWL Prosperities Limited is Mrs V.M. Chhabria and
all the abovementioned acts and commission of
offences have been committed with knowledge of
the Directors of GWL Properties Ltd., and connivance
for which they are liable. Mr A.V.L. Ramprasad
Varma Representing M/s GWL Properties Limited
has registered a civil suit in the District Court,
Chengalpet using the forged documents. Mr Satish,
Manager (Legal) and Mr Shanmuga Sundram,
Senior Manager (Administration), have assisted in
fabricating the forged documents and used the
same to get patta from the Tahsildar, Tambaram,
thus cheating the government officials. Hence we
request you to register the complaint and to
investigate and take action in accordance with law
as against the said company M/s GWL Properties
Limited represented by Mr Satish, Manager (Legal);
Mr Shanmudga Sundaram, Senior Manager
(Administration); A.V.L. Ramprasad Varma,
Directors, and their accomplice who have connived
and indulged in fabricating and forging documents
for the purpose of illegally grabbing our lands and
for all other offences committed by them."
14. In the light of the above, the High Court
was wrong in quashing the FIR on the ground that
the allegations did not constitute an offence even
when the same were taken to be true in their
entirely. It was also, in our view, wrong for the
High Court to hold that the respondents were not
the makers of the documents or that the filing of a civil suit based on the same would not constitute an 10 offence. Whether or not the respondents had forged the documents and if so what offence was committed by the respondents was a matter for investigation which could not be prejudged or quashed by the High Court in exercise of its powers under Section 482 CrPC or under Article 226 of the Constitution of India."
This Court is of the considered view that the ratio of the decision reported in C.P.Subhash's case are apposite to the facts of this case. Having regard to the disputed nature of the facts in the opinion of this Court such facts have to be proved or disproved only at trial.
However, this Court notices that the complaint pertains to events and facts of the year 1982 when the petitioner no.3 was admittedly a minor. In such view of the matter this Court finds that even on a bare reading of the complaint it cannot be presumed that the petitioner no.3 could have any complicity as a minor in the commission of the alleged offences.
In the backdrop of the above discussion this court finds it fit to quash the impugned proceedings being case no. 861 of 2012 pending before the Ld. ACJM, Basirhat arising out of Haroa P.S. Case No. 178 of 2012 dated 1st July, 2012 qua the petitioner no.3. However, the proceedings will continue in respect of the petitioner nos.1 & 2. 11
CRR 3372 of 2012 is accordingly disposed of.
There will, however, no order as to costs. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)