Ajay Kumar Das & Ors vs State Of West Bengal & Anr

Subhasis Dasgupta, J

The affidavit-of-service furnished by the petitioner be kept on record.

None appears for the opposite party no.2.

This is an application under Section 482 of the Code of Criminal Procedure praying for quashing of a proceeding being G.R. Case No.1139 of 2018 arising out of Singur Police Station Case No.319 of 2018 dated 04.09.2018 under Sections 447/323/324/354/354B/379/506/509/34 of the Indian Penal Code, now pending before the Learned Additional Chief Judicial Magistrate, Chandernagore, Hooghly.

The petitioner no.1 for the medical crisis of his wife admittedly sold 40 decimals of land from his ancestral share to his niece, petitioner no.2 receiving valuable consideration. The husband of opposite party no.2 is the full brother of petitioner no.1. It is the case of the petitioner that the husband of opposite party no.2 in collusion with opposite party no.2 and their henchmen tried to grab the property of the petitioner no.1, what has already been sold to petitioner no.2. To take forceful possession of the transferred property, there developed ill feeling and animosity between the parties, which could be found from previously instituted proceeding under Sections 107 and 144 Cr.P.C. by the petitioner no.2 against the opposite party no.2 and her family members.

However, the contention levelled against the opposite party no.2 and her family members is that on 17th August, 2018 at about 7:30 A.M. in the morning the opposite party no.2 and her associates tried to take forceful possession of the purchased land of petitioner no.2 (sold by petitioner no.1 to petitioner no.2), which having resisted, the opposite party no.2, her husband and henchman assaulted the petitioner nos.2 and 3, extorted money from them and molested petitioner no.2. As police did not do anything favourable for the petitioners on the basis of information lodged at their instance, a court complaint under Section 156(3) Cr.P.C. was filed. After being ordered by the court, police took up investigation in connection with Singur Police Station Case No.350 of 2018 dated 19.9.2018 under Sections 341/447/323/324/354/354B/379/504/506/509/34 of the Indian Penal Code.

The contention raised against the petitioners is that on 17.8.2018 at about 8 A.M. over long pending property matters they abused o.p. no.2 and her family members with use of filthy languages and wounded them with the use of lathi, katari etc and outrage the modesty of woman (o.p. no.2) after snatching away golden chain from the possession of the complainant. Police after investigation submitted charge-sheet making out a prima facie case under Sections 447/323/325/354/354B/379/506/509/34 of the Indian Penal Code against petitioners, proposed for quashment in this case.

Adverting to such facts involved in two separate cases, learned advocate for the petitioners submitted that the allegations contained in the complaint pertaining to Singur P.S. Case No.319/18 dated 4.9.2018 was completely absurd and inherently improbable, as no prudent man could ever reach to a just conclusion that there was sufficient grounds for proceeding against the petitioners.

Learned advocate for the petitioners further submitted that the instant case was nothing but to take a retaliation measure against the property sold by petitioner no.1 to petitioner no.2 contrary to the interest of family members of opposite party no.2, this false case was instituted against the petitioners, and if such proceedings were allowed to be continued anymore, there would be an abuse of the process of the court.

Learned advocate representing the State collecting copy of the C.D. submitted that when investigation already ended in charge-sheet making out a prima facie case against the petitioners the instant case should not have been allowed to be quashed merely smelling existence of a counter version.

The only point to be addressed by this Court is whether the pending proceeding, if allowed to be continued, there would be an abuse of process of the court, as alleged, or not.

Admittedly, the petitioner no.1 and the husband of the opposite party no.2 are brothers by full blood. The property sold by petitioner no.1 to petitioner no.2 is the ancestral share and in the ancestral property, the husband of the opposite party no.2 has also property to the extent of his ancestral share. The petitioner no.2 having felt disturbed with the possession at the instance of the opposite party family members and others even after purchase of the property from petitioner no.1 to the extent his share already filed a suit in connection with Title Suit No.231 of 2018 now pending before the Learned Civil Judge (Junior Division), Chandernagore, Hooghly. Civil suit having already instituted, the same is expected to resolve the property dispute pending between the parties, if there be any at all.

The copy of the C.D. contained sufficient materials supportive of a prosecution under Sections 447/323/325/354/354B/379/506/509/34 of the Indian Penal Code. The statement of the complaint was separately recorded transpiring prima facie materials against the accused persons contrary to the stand, as specifically taken by the petitioners in this case. From the certified copy of the order of the lower court record produced in course of hearing, it appears that the learned court below has already fixed date for supply of copy meaning thereby the learned court below is about to commence the trial in this case after framing of the charge. That being the position, it would not be wise enough to quash the instant proceedings ignoring the materials already collected against the petitioners during the course of investigation making out a prima facie case upon merely visualizing a counter version, registered in connection with Singur Police Station Case No.350 of 2018 dated 19.9.2018 under Sections 341 /447 / 323/ 324/ 354/ 354B/ 379/ 504/ 506/ 509/34 of the Indian Penal Code.

The plenary jurisdiction vested to Court under Section 482 of Cr.P.C. is exercisable when the complaint prima facie leaves materials to show that it is vexatious, out and out falls and mala fide one. The materials as revealed in course of investigation cannot be taken to have passed the tests, mentioned in Section 482 Cr.P.C. itself, i.e., to give effect to any order under the Code, or to prevent abuse of the process of the court, or otherwise to secure ends of justice as proposed by petitioner. The quashing is thus without the sanction of law.

Whether the instant prosecution against the petitioners is attributable to the act complained of for taking vengeance against the petitioners by the opposite party no.2 family members, out of their previous animosity arising out of property dispute, the same cannot be decided at this stage without entering into trial of both the cases, when there will be collection of evidence in both the cases, if any charge-sheet is at all submitted in connection with Singur Police Station Case No.350 of 2018 dated 19.9.2018.

That being the position, the Court is of the view that petitioners are not remediless at this moment and enough opportunities are left open to agitate the issue, favourable to the purpose of the petitioners after capitalizing the materials already collected against the petitioners. The quashing as proposed thus refused being without any merits.

The revisional application fails.

Petitioners are, however, given liberty to raise points favourable to their purpose at the time of consideration of charge and if any such point is raised, that shall be duly addressed to by the learned court below giving sufficient opportunities to either of the parties to this case without being untrammeled by the observation made in the body of this order.

With this observation/direction, the revisional application stands disposed of.

Urgent certified photostat copy of this judgement, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.