Calcutta High Court (Appellete Side)
Bibekananda Pradhan vs Unknown on 22 March, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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258. 22.03.2017 C.R.R. 489 of 2017
Aloke Ct. No.28 with
C.R.A.N. 3212 of 2016
with
C.R.R. 935 of 2014
In the matter of : Bibekananda Pradhan
Mr. Himangshu De
Mr. N. De
Mr. M. CHatterjee
... for the petitioner
Mr. Ayan Basu
... for the State
Proceeding in G.R. Case No. 325 of 2009 arising out of Raiganj
P.S. Case No. 128 dated 4th May, 2009 under Sections
376/511/201/120B of the Indian Penal Code has been assailed by
the petitioner, inter alia, on the ground that the impugned case is a
counter blast to an earlier case of theft registered at the behest of his
wife against opposite party no. 2.
It is the case of the petitioner that the opposite party no. 2 was
a domestic help working in his residence and had been caught red-
handed on 12.01.2009 for committing theft from the almirah in his
residence. On the complaint of his wife Raiganj P.S. Case No. 12/09
dated 12.01.2009 under Section 379/411 IPC was registered against
opposite party no.2. It is also alleged in the said first information
report that the entire incident had been recorded in a hidden camera
kept by the petitioner and his wife suspecting the tendency to
commit theft on the part of the opposite party no.2. In the course of
investigation of the said case, opposite party no. 2 was arrested and
was finally released on bail on 19.02.2009. Subsequently, on
09.04.2009 opposite party no. 2 instituted the impugned criminal
proceeding by taking out an application under Section 156(3)
Cr.P.C., inter alia, alleging that the petitioner used to molest and
sexually harass her against her will and that on 11.04.2009 the
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petitioner had forcibly molested her and attempted to ravish her and
upon making protest she was dismissed from her employment. When
the opposite party no. 2 insisted on the payment of her outstanding
wages, she was asked to come on the next day. When the opposite
party no. 2 came to the residence of the petitioner, his wife asked her
to perform certain domestic work and called upon her to open the
almirah and bring Rs.400/-. When she brought out of the said
money as per the direction of the wife of the petitioner, she was
falsely accused of theft and handed over to the police authorities.
Upon release on bail she went to the police authorities and tried to
file complaint against the petitioner but the police authorities refused
to accept such complaint against the petitioner and hence there was
delay in taking out the instant application.
Pursuant to the direction of the learned Magistrate, impugned
criminal case being Raiganj P.S. Case No. 128/2009 dated
04.05.2009was registered for investigation. In conclusion of investigation charge-sheet has also been filed against the petitioner under Section 376/511 of the Indian Penal Code.
Mr. De, learned senior counsel for the petitioner submits that the impugned criminal proceeding is a counter blast to the case registered against opposite party no. 2 for committing theft at his residence. There is inordinate delay in lodging the impugned case and the allegations are patently absurd and inherently improbable.
On the other hand, Mr. Basu, learned counsel for the State submits that statement of the opposite party no. 2 is supported by other witnesses including an independent witness. 3
I have considered the materials on record. It is true that the instant case was registered after lapse of sometime and that the opposite party no. 2 had been accused of committing theft in the residence of the petitioner. Opposite party no. 2 has, however, given an explanation as to the reason for delay in lodging the first information report. Mala fides of the opposite party no. 2 is a question of fact which requires to be probabilized in the course of trial in the instant case. However, in the face of the allegations of outraging of modesty of the opposite party no. 2 herein and as such allegations are supported by the statements of other witnesses recorded under Section 161 Cr.P.C. It would be premature to come to a conclusion that allegations in the impugned criminal proceeding are incorrect and ought not be proceeded with in accordance with law.
However, as I am of the opinion that the impugned case appears to be a counter case to an earlier case registered by the petitioner being Raiganj P.S. Case No. 12/09 dated 12.01.2009 under Section 379/411 IPC, I direct that both the cases be tried together by the same court one after another as a case and counter case. Accordingly, Raiganj P.S. Case No. 12/09 dated 12.01.2009 under Section 379/411 IPC is transferred to the court of the learned Additional Sessions Judge, Second Court Raiganj, Uttar Dinajpur and be tried along with the impugned case as a case and counter case in accordance with law.
Warrant of arrest issued against the petitioner shall remain suspended for a period of four weeks within which period the petitioner shall appear before the learned trial court and pray for regular bail. In the event he fails to appear before the learned trial 4 court the warrant of arrest shall stand revived and be executed against the petitioner in accordance with law.
All issues are kept open to be agitated by the petitioner at the appropriate stage of the proceeding including the stage of consideration of charge, in accordance with law.
With the aforesaid directions, the petitions along with application are disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Joymalya Bagchi, J.) 5