Calcutta High Court (Appellete Side)
Suvendu Adhikari And Another vs The State Of West Bengal And Another on 4 October, 2021
Author: Kausik Chanda
Bench: Kausik Chanda
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Kausik Chanda
C.R.R. NO. 1352 OF 2021
SUVENDU ADHIKARI AND ANOTHER
-VERSUS-
THE STATE OF WEST BENGAL AND ANOTHER
For the petitioner no. 1 : Mr. P.S. Patwalia, Sr. Adv.,
Mr. Sourav Chatterjee, Adv.,
Mr. Billwadal Bhattacharjee, Adv.,
Ms. Bansari Swaraj, Adv.,
Mr. Siddhesh Rotwal, Adv.,
Ms. Manya Harija, Adv.,
Ms. Harshika Verma, Adv.,
Ms. Ana Upadhyay, Adv.,
Mr. Aditya Tiwari, Adv.
For the petitioner no. 2 : Mr. Sekhar Kumar Basu, Sr. Adv.,
Ms. Arushi Rathore, Adv.
For the State : Mr. Kishore Datta, Ld. Advocate General,
Mr. S.G. Mukherjee, Ld. P.P.,
Mr. Rudradipta Nandy, Adv.
For the opposite party no. 2: Mr. Sabyasachi Banerjee, Adv.,
Ms. Abhia Jena, Adv.
Hearing concluded on : 23.08.2021
Judgment on : 04.10.2021
2
Kausik Chanda, J.:-
This is an application for quashing of the proceeding being G.R.
Case no. 990 of 2021 pending before the learned Additional Chief Judicial
Magistrate, Contai, Purba Medinipur arising out of Contai Police Station
Case No. 193 of 2021 dated 01.06.2021 under Sections
448/379/409/120B of the Indian Penal Code, 1860, and under Sections
51/53 of the Disaster Management Act, 2005.
(2) I have had the advantage of hearing the detailed arguments
advanced by the learned counsel appearing for the parties. The parties have
filed their respective written notes of argument.
(3) Mr. P.S. Patwalia, learned senior advocate appearing for the
petitioner no. 1 submitted that the petitioners had been implicated in this
case since they had changed their political affiliation from the ruling
political party to the political party in opposition.
(4) He pointed out that on May 29, 2021, the Chairman of the Board of
Administrators of the Contai Municipality lodged a general diary before the
Contai Police Station where it had been alleged that there was an attempt
to commit theft of tarpaulin sheets and the attempt to commit was
thwarted by the members of the public who were present at the spot.
3
(5) It was further alleged that in the said general diary that on receipt of
such information, the said Chairman immediately rushed to the spot and
put a padlock.
(6) Two days after the said general diary was lodged with a mala fide
intention and malice the present FIR had been lodged, giving a
contradictory version by one of the members of the Board of Administrators
of the said Municipality.
(7) The aforesaid fact of two conflicting version about the selfsame
alleged incident of May 29, 2021, speaks volume of the maliciousness
behind the present criminal case.
(8) It has been pointed out that the statement recorded by the police
under Section 161 of the Code of Criminal Procedure, 1973, suggests that
the petitioners conspired for committing the alleged offences. It is absurd
that a chance witness can have any knowledge with regard to the
conspiracy. A public witness cannot have any information about the
persons involved behind the scene of the alleged offence, namely the
conspirators. It, therefore, shows that the said witnesses had been tutored
by the investigating agency. It has been further submitted that there has
been no ingredients of Section 409 of the Indian Penal Code, 1860, and
there is no scope of entrustment in this case since the petitioner no. 1 was
in no way connected or associated with the Contai Municipality. The
4
petitioner no. 2 is an erstwhile Chairman of the Board of Administrators of
the Contai Municipality and on the date of the alleged incident, he was in
no way connected with the said Municipality.
(9) Mr. Patwalia submits that the petitioner cannot be implicated on the
basis of the statements of the co-accused since the same is hit by Section
25 of the Evidence Act.
(10) Mr. Patwalia relies upon the judgments reported at AIR 1960 SC
866 (R. P. Kapur v. State of Punjab) and 2021 SCC OnLine 315
(Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra) to contend
that when the prosecution has been lodged with a malice and the
complaint does not show ingredients of a cognizable offence against the
petitioners, the First Information Report may be quashed by the High Court
in exercise of its power under Section 482 of the Code of Criminal
Procedure, 1973.
(11) Mr. Patwalia contends that the petitioner has been implicated in at
least five criminal cases within a short span immediately after his change of
political affiliation. Such consecutive criminal cases lodged against the
petitioner by the State shows mala fide and malice of the State against the
petitioner. By relying upon a judgment reported at (2018) 3 Cal LT 482
(Mukul Roy v. State of West Bengal) Mr. Patwalia submits that the
present case against the petitioner should also be quashed.
5
(12) Mr. Patwalia, at the time of giving his reply, has relied upon the some
unreported cases where this Court has stayed the investigation launched
against some associates of the petitioner no. 1 who also shifted their
political allegiance from the ruling party to the opposition.
(13) Mr. Sekhar Basu learned senior advocate appearing on behalf of the
petitioner no. 2 has submitted that since in this case a general diary was
made on May 29, 2021, the police should have treated the same as an FIR
and the subsequent FIR lodged on June 1, 2021, is not sustainable. It has
been submitted by Mr. Basu that the said general diary dated May 29,
2021, and the FIR dated June 1, 2021, relate to the same incident and
therefore the FIR dated June 1, 2021 is liable to be quashed. Mr. Basu in
support of his submission relied upon the paragraphs 20 and 21 of the
judgment reported at (2010) 12 SCC 254 (Babubhai v. State of Gujarat).
Mr. Basu further relied upon a judgment reported at (2007) 4 CHN 809
(Ramesh Sha v. State) to suggest that the First Information Report is that
information which has been given to the police first in point of time on the
basis of which the investigation commences and not that which the police
may select and record as First Information Report. The law has not
permitted the police officer to have any choice over the matter to decide
which of the information shall be treated as First Information Report. By
relying upon a judgment reported at (2001) 6 SCC 181 (T.T. Antony v.
State of Kerala) Mr. Basu argued that only the earliest or the first
6
information in regard to commission of offence satisfies the requirement of
the Section 154 of the Code of Criminal Procedure, 1973. There can be no
fresh investigation on a receipt of every subsequent information in respect
of the same cognizable offence.
(14) Mr. Kishore Datta learned senior advocate on the other hand
submitted that since the plain reading of the complaint dated June 1,
2021, discloses cognizable offences it is mandatory upon the police to lodge
an FIR in view of the judgment reported at (2014) 2 SCC 1 (Lalita Kumari
v. Government of Uttar Pradesh).
(15) On June 14, 2021, a coordinate Bench refused to pass interim order
without going to the case diary following the law laid down in case of
Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra reported at
(2021) SCC OnLine SC 315.
(16) The case diary reveals that the statement recorded under Sections
161 and 164 of the Code of Criminal Procedure, 1973, implicate the
petitioner no. 1. There has been recovery of total 41 numbers of stolen
tarpaulins; the presence of the members of the central forces at the time of
occurrence has also been revealed from the statements recorded under
Section 164 of the Code of Criminal Procedure, 1973.
(17) By referring to Section 44 of the Police Act 1861, and Section 377 of
the Police Regulation of Bengal, 1943. It has been argued that the general
7
diary entry is not an FIR. It has further been submitted that Form 65 of
Police Regulation of Bengal, 1943 mentions how a general diary entry is to
be made, whereas Form 27, 33, and 35 relate to First Information Report
under Section 154 of the Code of Criminal procedure, 1973.
(18) It is submitted that there was no prior registration of FIR alleging
theft of relief materials and the information given on June 1, 2021, was the
first information disclosing theft and as such the said FIR is not hit by
Section 162 of the Code of Criminal Procedure, 1973. Mr. Datta, in this
regard, has placed reliance upon paragraph 23 of the judgment reported at
(2003) 6 SCC 175 (CBI v. Tapan Kumar Singh).
(19) Mr. Datta relied upon the judgment reported at (2019) 9 SCC 24 (P.
Chidambaram v. Directorate of Enforcement) to contend that no ground
of mala fide being made out against the investigating officer, the FIR cannot
be quashed.
(20) Mr. Datta argues that R. P. Kapur (supra) as relied upon by Mr.
Patwalia is of no help to the petitioner as paragraphs 6, 7 and 10 of the
said judgment categorically mandates that if the complaint taken at its face
value and accepted in its entirety constitutes the alleged offence the
question of further appreciating evidence at the stage of the investigation
does not arise. The materials collected in the evidence can only be looked at
by the Court at the time of filing the charge sheet/report in final form.
8
(21) It is further submitted that on May 15, 2021, the State security was
withdrawn from the petitioner no. 1 and he was given protection of central
force. Several witnesses stated that at the time of the alleged occurrence of
theft of the relief materials, the central security persons were present on
the spot. The case is at the investigation stage and during investigation, the
several statements recorded under Section 164 of the Code of Criminal
Procedure, 1973 clearly indicate that there has been theft of relief materials
at the behest of the persons who acted as per the instruction of the
petitioners.
(22) Neeharika Infrastructure (supra) has also been relied upon by the
State to contend that powers of the investigating agency are unfettered as
long as the investigating officer exercises his powers within the provisions
of the law and legal bound. And the High Court cannot pass a blanket
order of not to arrest till the investigation is completed. The accused
persons have an alternative remedy under Section 438 of the Code of
Criminal Procedure, 1973, and only in very extraordinary situation such
order can be passed, but before passing the same, the materials collected
upon investigation have to be looked into to come to a finding that an FIR
does not, prima facie, disclose the commission of a cognizable offence. Mr.
Datta has relied upon the paragraphs 33, 36 and 57 of the said report.
(23) By placing reliance on the judgment reported at (2009) 13 SCC 443
(State of Andhra Pradesh v. Aravapally Venkanna) it has, further, been
9
contended that allegations of mala fide against the informant are
inconsequential.
(24) Mr. Datta further submits that High Court cannot act like an
investigating agency or exercise the power like an appellate Court in order
to examine whether the FIR discloses any cognizable offence or not. The
High Court cannot appreciate evidence nor could draw its own interference
on the contents of the FIR and, prima facie, materials if any requiring no
proof. In this regard reliance has been placed upon the judgment reported
at (2018) 3 SCC 104 (Dineshbhai Chandubhai Patel v. State of
Gujarat).
(25) Mr. Datta sought to distinguish the judgment reported at (2018) 3
Cal LT 482 (Mukul Roy v. State of West Bengal) by contending that in
that case the Court held that delay of six years in lodging the complaint
was not properly explained and the complaint was lodged without following
the dictum of the Apex Court in Priyanka Srivastava case reported at
(2015) 6 SCC 287. The facts and circumstances of the present case are
totally different.
(26) With regard to the unreported judgments relied upon Mr. Patwalia, it
has been submitted that those are interim orders having no binding effect,
and some orders have already been challenged before the appeal Court.
10
(27) Mr. Sabyasachi Banerjee, learned advocate appearing for the de-facto
complainant/opposite party no. 2 has submitted that the statements made
by a co-accused may be considered or treated as a clue or a piece of
information to initiate and conduct enquiry or investigation. He relied upon
a judgment reported at 2013 Cri LJ 1779 (Dolatram Tekchand Harjani
v. State of Gujarat). Mr. Banerjee also refers to a judgment reported at
(1999) 3 SCC 259 (Rajesh Bajaj v. State NCT of Delhi) and submits that
High Court cannot quash a proceeding when the facts of the case are hazy
and it is not necessary that the complaint should verbatim reproduce all
the ingredients of the alleged offence. It has further been contended that
the High Court should normally refrain from giving a, 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 wide magnitude and cannot
be seen in their true perspective without sufficient materials. In this regard
he relied upon a judgment reported at (2012) 10 SCC 155 (State of
Madhya Pradesh v. Surendra Kori).
(28) I have heard the arguments advanced by the respective parties at
length. I have no quarrel to the propositions of law as advanced by the
appearing parties before me, and as such I need not separately deal with
the judgments relied upon by the parties. In my view the question of
granting interim order in this case should be decided in the factual
11
backdrop of the case and in the light of the judgment reported at 2021
SCC OnLine SC 315 (Neeharika Infrastructure Pvt. Ltd. v. State of
Maharashtra) relied upon by all the appearing parties.
(29) The specific questions as to whether the High Court would be
justified in granting stay of further investigation pending the proceedings
under Section 482 of the Code of the Criminal Procedure 1973, before it
and in what circumstances the High Court would be justified to do so were
answered in paragraph 63 of the said report as follows :-
"63. As observed hereinabove, there may be some
cases where the initiation of criminal proceedings may be
an abuse of process of law. In such cases, and only in
exceptional cases and where it is found that non
interference would result into miscarriage of justice, the
High Court, in exercise of its inherent powers under
Section 482 Cr.P.C. and/or Article 226 of the
Constitution of India, may quash the
FIR/complaint/criminal proceedings and even may stay
the further investigation. However, the High Court
should be slow in interfering the criminal proceedings at
the initial stage, i.e., quashing petition filed immediately
after lodging the FIR/complaint and no sufficient time is
given to the police to investigate into the allegations of
the FIR/complaint, which is the statutory right/duty of
the police under the provisions of the Code of Criminal
Procedure. There is no denial of the fact that power
under Section 482 Cr.P.C. is very wide, but as observed
by this Court in catena of decisions, referred to
hereinabove, conferment of wide power requires the
court to be more cautious and it casts an onerous and
more diligent duty on the court. Therefore, in exceptional
cases, when the High Court deems it fit, regard being
had to the parameters of quashing and the self-restraint
imposed by law, may pass appropriate interim orders, as
thought apposite in law, however, the High Court has to
12
give brief reasons which will reflect the application of
mind by the court to the relevant facts."
(30) Regard being had to the aforesaid guidelines of the Supreme Court,
the factual aspect involved in the case is needed to be considered.
(31) The relevant FIR was registered on June 01, 2021.
(32) The attending circumstances in which the relevant FIR was
registered are quite unusual and give rise to a suspicion. It appears that on
May 29, 2021, the Chairman of the concerned municipality himself lodged
a complaint before the police that there was an attempt to "loot" some
tarpaulins to a vehicle bearing registration no. WB 319680 by some
delinquents who were the associates of petitioner no. 1. Upon receiving
such information, he rushed to the spot and locked the godown. No FIR
was registered on the basis of the said complaint, and only a general diary
entry was made vide GDE no. 1207 dated May 29, 2021.
(33) The translated version of the said general diary entry as made over
by the State to this Court is reproduced below:-
"By this time received a written information from
Sidhartha Maity, Chairperson of Contai Municipality to
the effect that today (29.05.21) at about 12:30p.m. some
wrong doers (Duskriti) of MLA Suvendu Adhikari in
presence of central force and their assistance tried to loot
some polithin to a small vehicle bearing no. WB 31-9680
from a godown situated in front of dormitory under water
tank. Receiving such information, he went to the PO.
Central force used abusive languages upon him. He
somehow locked the godown. Said vehicle fled away from
there. I diarized the matter and directed SI Gaurab Mitra
to enquire into and submit report early."
13
(34) Two days after the said general diary, a member of the Board of
Administrators of the said municipality comes up with a different version
before the police and lodges the relevant FIR. He alleges, inter alia, as
follows:-
"On 29.5.2021 at about 12:30 pm in the afternoon
upon the instructions of Suvendu Adhikari (accused no.
1) and Soumendu Adhikari (accused no. 2 and former
Chairman of the Board of Administrators of Contai
Municipality) in a pre-planned manner and pursuant to
a conspiracy and with the help of office bearers of Contai
Municipality namely, Himangshu Manna and Pratap Dey
(accused nos. 3 and 4) about 4/5 armed personnel of the
Central Force came with a mini truck bearing
registration no. WB 31 9680 in the office godown of
Contai Municipality (in front of the dormitory, beneath
the water tank) and illegally/forcibly entered into the
said godown. The accused no. 4 Pratap Dey helped them
to open the padlock and the said Central Forces
personnel loaded the government supplied tarpaulin
sheets in the said mini truck and fled away. Upon
coming to know from reliable sources, I went there and
physically examined the said place and found that the
accused persons acting through some unknown
miscreants and upon exaltation of armed Central Forces
personnel, tarpaulin sheets worth more than a lakh of
rupees have been looted from the said godown. When
myself as well as another member of the Board of
Administrators of Contai Municipality namely, Habibur
Rahaman questioned Himangshu Manna and Pratap Dey
(accused nos. 3 and 4) about the incident, they
reluctantly said that such illegal act was committed by
them under the instructions of Suvendu Adhikari and
Soumendu Adhikari.
Under such circumstances please take necessary
action against the below named persons and do justice."
14
(35) It is difficult to accept the modified version of the said FIR by one of
the members of the Board of Administrators registered after two days of the
alleged incident, when the Chairman of the municipality himself claimed to
have visited the place of occurrence immediately after the alleged incident,
and informed the police that there had been an attempt to take away the
tarpaulin sheets. In the said complaint the Chairman did not name the
petitioner no. 2 and attributed no specific role to the petitioner no.1.
(36) The different provisions of Police Regulation of Bengal, 1943, the
police Act 1861 and the Code of Criminal Procedure, 1973, as placed by the
learned Advocate General only suggest that all the daily events including
the reporting of commission of cognizable offence reported at the police
station are to be diarised as general diary entry and the reports relating to
commission of an cognizable offence needs to be registered as FIR also.
(37) In view of the judgment reported at (2010) 12 SCC 254 (Babubhai
v. State of Gujarat), prima facie, I am of the opinion that the investigating
agency ought not to have registered the relevant FIR when the complaint of
the Chairman dated May 29, 2021, relating to the same incident disclosing
cognizable offences was already diarised before them. An FIR should have
been registered on the basis of the said complaint.
(38) The relevant part of the said judgment is quoted below:-
"20. Thus, in view of the above, the law on the
subject emerges to the effect that an FIR under Section
154 CrPC is a very important document. It is the first
15
information of a cognizable offence recorded by the
officer in charge of the police station. It sets the
machinery of criminal law in motion and marks the
commencement of the investigation which ends with the
formation of an opinion under Section 169 or 170 CrPC,
as the case may be, and forwarding of a police report
under Section 173 CrPC. Thus, it is quite possible that
more than one piece of information be given to the police
officer in charge of the police station in respect of the
same incident involving one or more than one cognizable
offences. In such a case, he need not enter each piece of
information in the diary. All other information given
orally or in writing after the commencement of the
investigation into the facts mentioned in the first
information report will be statements falling under
Section 162 CrPC.
21. In such a case the court has to examine the
facts and circumstances giving rise to both the FIRs and
the test of sameness is to be applied to find out whether
both the FIRs relate to the same incident in respect of
the same occurrence or are in regard to the incidents
which are two or more parts of the same transaction. If
the answer is in the affirmative, the second FIR is liable
to be quashed. However, in case, the contrary is proved,
where the version in the second FIR is different and they
are in respect of the two different incidents/crimes, the
second FIR is permissible. In case in respect of the same
incident the accused in the first FIR comes forward with
a different version or counterclaim, investigation on both
the FIRs has to be conducted."
(39) When this application for quashing was moved on June 14, 2021, a
coordinate Bench of this Court observed as follows:
16
"Having regard to the fact of the case which relates
to relief materials and the dictum of the Hon'ble Apex
Court in the case of M/s. Neeharika Infrastructure Pvt.
Ltd. v. State of Maharashtra & Ors. reported in 2021
SCC Online SC 315, I am not inclined to pass any
interim order at this stage without perusal of the case
diary and the materials collected by the investigating
agency.
The interim order prayed for is refused at this stage.
However, the petitioners will be at liberty to renew their
prayer for interim order on the next date fixed for
hearing.
Learned Public Prosecutor who is present in court is
directed to produce the case diary on the next date."
(40) Thereafter this application was taken up for hearing on a number of
occasions, but no interim order whatsoever was passed. Investigation was
allowed to be carried out and the progress of investigation was reported to
this Court time to time and the judgment was reserved on August 23,
2021, upon conclusion of hearing on the point of granting interim order.
(41) Therefore, it is not the initial stage of the investigation when the
Court is considering the prayer for passing the interim order. The facts are
no more hazy. The case diary produced before this Court suggests that
during the course of the investigation many statements were recorded
under Section 161 and under Section 164 of the Code of Criminal
Procedure, 1973. Search and seizure also took place and some of the
accused persons were also arrested. The case diary, however, does not
disclose any legal evidence collected against the petitioners. It appears that
the statements of some chance witnesses or public witnesses were recorded
17
under Section164 of the Code of Criminal Procedure, 1973, who were
allegedly present at the place of occurrence at the relevant point of time by
chance. The said witnesses gave statements that they heard other accused
persons saying that they had acted under the instruction of the petitioner
no. 1. The statements recorded under Section 161 also suggest that the
said witnesses heard that the other accused persons saying that they had
acted under the instruction of the petitioner no. 1 and 2. Needless to
mention that those statements are hearsay in nature without any
evidentiary value. Apart from these statements, during the course of
investigation nothing has been collected to implicate the petitioners in this
case.
(42) The political overtones of this present criminal case cannot be
brushed aside. Petitioner no. 1 is a member of West Bengal Legislative
Assembly and he is the current leader of the opposition. The petitioner no.
1 was the Transport Minister of the State cabinet while he was a member of
the political party presently in power in this State. He became a renegade
and joined the rival political party of the State in the month of December
2020. Petitioner no. 2 is the brother of the petitioner no. 1. Petitioner no. 2
is the erstwhile Chairman of the concerned municipality. He also left the
ruling political party of the State and joined the political party in
opposition.
18
(43) I am also inclined to take judicial note of a judgment dated
September 6, 2021, of a coordinate Bench of this Court whereby the said
Court interfered with five other criminal cases launched against the
petitioner no. 1 observing, inter alia, as follows:-
"This Court finds substantial force in the petitioner's
argument. Prima facie there appears to be an attempt at
implicating and victimizing him in criminal cases and
mala fides, malice and collateral purpose in registering
the FIRs against the petitioner and his associates. A
scheme and or conspiracy and or pattern and or
stratagem appear to have been devised to entrap the
petitioner and his associates to ensure their
incarceration and custody inter alia to embarrass them."
..........................
"In the instant case there is prima facie evidence before this Court of abuse and or misuse of State and police machinery in registering cases for investigation based on half-truths, fiction, concoctions and non- events."
(44) The present criminal proceeding is one of the contemporaneous criminal cases launched against the petitioner no. 1 soon after the change of his political affiliation.
(45) In view of the aforesaid, prima facie, findings I am of the opinion that an exceptional case has been made out to pass an interim order in this case. Accordingly, there shall be stay of all further proceedings being G.R. Case no. 990 of 2021 pending before the learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur arising out of Contai Police Station Case no. 193 of 2021 dated 01.06.2021 under Sections 448/379/409/120B of the Indian Penal Code, 1860, and under Sections 19 51/53 of the Disaster Management Act, 2005, as against the petitioners, till six weeks after the ensuing Puja vacation. The opposite parties may file their affidavits-in-opposition within two weeks after the Puja vacation; reply thereto, if any, may be filed within one week thereafter. List this application four weeks after Puja vacation under the heading "Contested Application." (46) Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Kausik Chanda, J.)