Dr. Amlendra Nath Mandal vs State Of Chhattisgarh

Ramesh Sinha, CJ

Since the facts and issue involved in Cr.M.P. No. 337/2021 and WPCr No. 698/2021 are inter-connected, they are being considered and decided by this common order.

Heard Mr. Sudeep Shrivastava, learned counsel {for the petitioner in Cr.M.P. No. 337/2021}, Ms. Madhunisha Singh, learned Deputy Advocate General {for the State/respondent No. 1 in Cr.M.P. No. 337/2021 and respondents No. 1 to 3 in WPCr No. 698/2021} and Mr. Abhishek Sinha, learned Senior Advocate with Mr. S.S.Marhas, learned counsel {for the petitioner in WPCr No. 698/2021 and respondent No. 2 in Cr.M.P. No. 337/2021}.

The petitioner, Dr. Amlendra Nath Mandal, in Cr.M.P. No. 337/2021 has filed this petition seeking quashing of criminal proceedings against the petitioner pending in the Court of Judicial Magistrate, First Class, Bilaspur, in Criminal Case No. 742/2021 under Sections 292(2)(a), 500 and 509 of IPC and also quashing of the FIR bearing Crime No. 42/2020 registered at Police Station Mahila Thana, Bilaspur, on 29.12.2020.

The petitioner, Smt. Indrajeet Kaur, in WPCr No. 698/2021 has filed this petition for the following reliefs:

“10.1 Call for entire case diary pertaining to the crime no. 42/2020 registered at Police Station Mahila Thana, Bilaspur, and

10.2 Issue appropriate direction to the Investigating Officer to conduct further investigation in the matter and file a supplementary charge sheet after collection of evidences before the Judicial Magistrate First Class, Bilaspur for offence under Information Technology Act and Section 509 B of Indian Penal Code in consonance with Section 173(8) of Code of Criminal Procedure, and

10.3 Issue appropriate direction to the Respondent No. 1 and 2 to take action against Respondent No. 3 for not discharging her duties in investigating the case in a fair, effective and just manner, and/or

10.4 Pass any other order/orders, direction/ directions in view of the facts and circumstances of the case, in favour of the petitioner.”

In Cr.M.P. No. 337/2021, the facts, as projected by the petitioner-Dr. Amlendra Nath Mandal is that he is a Medical Officer, having an impeccable service record, has been conferred with a certificate of appreciation for working as a Covid warrior by the Vice Chancellor of the University. The prosecution story here is that the complainant-Inderjeet Kaur alias Ranu made a written complaint on 29.12.2020 in the Mahila Thana, Civil Lines, Bilaspur against unknown persons in which she has stated that few of her relatives and acquaintances received envelope through simple post in July 2019, containing a photograph of nude women along with her photographs in which it was written, "Prostitute, Sex Worker Ranu Indrajeet Kaur" along with a letter in which false allegations were leveled upon her character. The first envelope was sent to the brother of the complainant namely Satpal Singh at his address and the same was repeated on subsequent dates but at the relevant time no report/complaint was lodged. Since there was no report lodged hence, the morale of the unknown accused persons got boosted and later on dated 26.12.2020 the same act was repeated and sent to hotel Silver Oak, Bilaspur and to the house of one Pradeep Shukla and Dr. Hemant Chatterjee who is also one of complainant's Doctor. In the alleged post, one picture of the complainant which was downloaded from face book along with a photo with a nude woman was attached in an edited manner on which her name was portrayed as a sex worker. The said documents also contained her mobile numbers describing her as sex worker Sunny Leone. This report was lodged by the complainant on 29.12.2020 in which occurrence of offence is mentioned as the period from 10.07.2019 to 29.12.2020. The FIR was lodged against unknown persons. The complainant had never named the petitioner in the FIR. Even in her first statement under CrPC 161 which was recorded on 29.12.2020, she has merely raised doubt on two persons firstly, on her estranged husband and subsequently, on the petitioner-Dr. Amlendra Nath Mandal. Though it is a fact that the petitioner is acquainted with the complainant since many years because of being a Doctor who used to be consulted by the complainant also. It is further pertinent to mention that the complainant and her family has been in the business of investment consultants and mostly looking after Post Office Saving Account Schemes, thus the petitioner has taken her services to manage some of his savings.

Mr. Sudeep Shrivastava, learned counsel for the petitioner-Dr. Amlendra Nath Mandal, submits that the petitioner had never made any offer to marry the complainant. On the contrary, it was petitioner's hard-earned money of around Rs. 4,00,000/- which the complainant was not returning and that has led to ending their acquaintance around 3 years back. The petitioner accepted the situation as the fallout of an old acquaintanceship and did not pursue any action for recovery of the invested money as it would have made the relationship more bitter. On 12.01.2021, a Police Team claiming to be from Mahila Thana, Bilaspur, reached the house of the petitioner and without any prior notice as contemplated under the Cr.P.C. and without any search warrant forcefully entered the house and allegedly seized the items as detailed in paragraph 7 of the petition. A bare perusal of the aforesaid seizure note, it is apparent that except one photograph of a nude woman along with the complainant's photo and some description about her with phone numbers, nothing has been seized. Going by the complainant's own story the petitioner has been known as her acquaintance and similar photograph and material have been sent to many similarly placed persons.

Mr. Shrivastava further submits that on the same day the complainant recorded a supplementary statement under 161 Cr.P.C. in which now she first time said that the petitioner is the one who has spread and circulated all these obscene materials. The police even did not bother to record any statement of the estranged husband of the complainant with whom she was having sour relationship. The complainant has also recorded her statement under 164 Cr.P.C. on 19.01.2021 before the Magistrate in which she has not made any firm statement against the petitioner but has merely doubted that the petitioner has done the alleged crime. There were five occasions when a statement was made by the complainant in the instant proceedings i.e. firstly, A written Complaint, secondly, the FIR, thirdly, the first statement under Section 161 Cr.P.C., fourthly, the second statement under Section 161 Cr.P.C. and, lastly, the statement made under Section 164 Cr.P.C. In first two statements, the name of the petitioner was not taken, in third one, merely a doubt was casted along with her own husband, in the fourth one i.e. after the alleged seizure petitioner's name was taken and in statement recorded under Section 164 Cr.P.C. No investigation pertaining to the role of the husband has been done by the investigating agency. In fact, she has expressed her doubt primarily on her own estranged husband with whom she is not in cordial terms but with the petitioner, she herself has admitted that she has always been in good terms since last 28-30 years and during such long period there was no major dispute between the petitioner and the complainant. The complainant with her own husband has always been strained and doubtful and there is a prior complaint made against the husband of the complainant in which she herself is one of the signatory. This clearly manifests that there was previous enmity of the complainant with her husband namely Debashsish Banerjee. Even the prosecution vides seizure memo dated 29.12.2020 seized envelops from witness Pradeep Shukla and Dr. Hemant Chhaterjee also from Guddi alias Davindar Kaur (sister of the complainant) and from the Manager of Hotel Silver Oak. In the said envelop, no any detail of the sender has been revealed by any of the prosecution witness. The police has has recorded the statement of the complainant under Section 164 of Cr.P.C. which was recorded before the Judicial Magistrate, First Class, District Bilaspur in which in para 7 of the said statement the complainant has suspected two persons, one against the husband and second against the petitioner. Only on the basis of presumption, the petitioner has been made accused in this case. The prosecution has recorded the statement of complainant, her real sister Davindra Karu alias Guddi, real brother Satpal Singh alias Sonu, her son Devaditya Banerjee two independent witness Prof. Pradeep Shukla, Dr Hemant Chatterjee, Parmarth Sharan (Manager of Hotel Silver Oak). On going through the same, it prima facie appears that none of the witnesses have specifically alleged with regard to commission of any offence punishable under sections 292(2) (a), 500 and 509 of IPC. Hence it is the complainant alone who has levelled allegations on the petitioner which is nothing but an afterthought by concocting a story just in order to tamish the repute of petitioner.

Mr. Shrivastava further submits that from the above, it would be clear that by any stretch of imagination it cannot be said that the petitioner is a conspirator or has any intention to outrage the chastity and modesty of the woman. The allegations levelled against him being false in nature do not sustain in the eyes of law and therefore, the FIR No. 42/2020 dated 29.12.2020 registered against the petitioner for the offence under Sections 292(2)(a), 500 and 509 of IPC is liable to be set aside and proceedings drawn before the Court is also liable to be quashed. In support of his contentions, he would rely on the decision of the Supreme Court in State of Haryana Vs. Bhajan Lal & Others {(1992) Supp. 1 SCC 335}, Zandu Pharmaceuticals Works Ltd. Vs. Mohd. Shaiful Haque {(2005) 1 SCC 122}.

On the other hand, Ms. Madhunisha Singh, learned Deputy Advocate General appearing for the respondent No. 1 would submit that after a detailed investigation and after collecting evidences and after recording of the statement of the complainant and other witnesses, prima facie a case under Section 292(2)(a), 500 and 509 of the IPC is made out and accordingly, charge-sheet/final report has been filed before the learned Judicial Magistrate First Class Bilaspur on 27.01.2021. Subsequent to filing of charge-sheet, the learned trial Court has taken cognizance in the matter and has registered the case being Criminal Case No. 742/2021, which is pending consideration before the Court below. Ms. Singh further submits that the petitioner has a remedy to prefer an application under Section 239 of the Cr.P.C. for his discharge from the criminal case, however, the said remedy has not been availed by the petitioner who has rushed to this Court directly. The petitioner has ample opportunity of putting forth evidence before the learned Trial Court. There are enough material available on record to prosecute the petitioner. Further, even if the remedy available under Section 239 of the Cr.P.C. fails, the petitioner has further remedy of filing a revision under Section 397 of the Cr.P.C. before the Court of Sessions. Hence, this petition under Section 482 of the Cr.P.C. is not made out. She further submits that none of conditions as enumerated by the Supreme Court in Bhajan Lal (supra) is made out, hence, the said judgment has no applicable to the case in hand. She wold rely on the decision of the Supreme Court in State of Telangana v. Habib Abdullah Jeelani & Others, {(2017) 2 SCC 779}.

While accepting what has been stated by the learned State Counsel above, Mr. Abhishek Sinha, learned Senior Advocate appearing for the respondent-Complainant would further add that the after making a complaint, the prosecution has conducted the investigation. The complainant has merely raised suspicion on the petitioner in light of the relationship which the petitioner and the complainant had which later deteriorated. She had also expressed her suspicion on her husband. It is the investigating agency i.e. the police which is prosecuting the petitioner and during the course of investigation, the Investigating Officer (for short, the IO) has added offences under Section 292(2) and 500 IPC and submitted the final report before the Court of JMFC, Bilaspur. He would rely on the decision of the Hon’ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra {(2021) SCC OnLine SC 315}.

So far as WPCr No. 698/2021 is concerned, the petitioner, namely Smt. Indrajeet Kaur, who is the complainant of FIR bearing Crime No. 42/2020 dated 29.12.2020, which is the subject matter of the above Cr.M.P., the grievance of the petitioner is that the FIR was registered on 29.12.2020 and her statement under Section 161 Cr.P.C. was also recorded on the same date where she had expressed her suspicion against Dr. Amlendra Nath Mandal and also against her estranged husband-Debashish Banerjee. A supplementary statement of the petitioner/complainant under Section 161 of the Cr.P.C. was also recorded. On the basis of suspicion made by the complainant, the statement of servant of the accused namely Basant Kumar has also been recorded by the investigation officer and after recording his statement, a search has been conducted in the house of the accused. To the best of knowledge of the complainant/petitioner in the statement, Basant Kumar had stated that the accused-Dr. Amlendra Nath Mandal has circulated the pamphlet to different persons after getting print out from his computer but the prosecution/I.O. has not made that statement as a part of the final report for the reasons best known to the I.O., the fact can be verified from the case diary. The Police has also not seized computer and mobile of the accused which is the source of origin of the pamphlets. The Respondent No. 3 deliberately did not investigated the matter effectively and is also inferred that the I.O. has not been able to discharge it's functions fairly, meaningfully as per the allegations made by the petitioner in the written complainant, statement under Section 161 Cr.P.C. and statement under Section 164 Cr.PC to procure the evidences by seizing the electronic equipment available to the accused and made any attempt to verify whether the incriminating material was originated from his electronic equipment or not and also exclude the statement and other documents which were collected during the investigation as a part of the charge sheet to shield the accused rendering the investigation a faulty one and unjust. Petitioner has several times met the I.O. respondent no. 3 and requested her to investigate the offence in a just, fair, impartial and effective manner in relation to the origination of the envelope. The I.O. has not seized the electronic equipment available with the accused especially when the incriminating material was seized from the house of the accused from his bedroom which was circulated to the other persons to ascertain the origination of the pamphlets and photographs rendering the investigation ineffective. The I.O. has failed to register any offence under the Information Technology Act and Section 509 B of Indian Penal Code since there is a specific allegation in the statements under Section 161 and 164 Cr.P.C. that the photographs of the petitioner is downloaded from Facebook and placed a nude photograph in the same frame creating a picture by using electronic mode and circulated the same to different persons along with the phone numbers of the petitioner posing her a sex worker which amounts to sexual harassment to the petitioner. The I.O. has deliberately not made a part of charge sheet, the evidence collected during the investigation which raises a strong suspicion in the mind of the petitioner that Respondent No. 3 has deliberately concealed the evidence to shield the accused and weaken the case of prosecution.

In response to the averments made by the petitioner/complainant-Smt. Indrajeet Kaur, Ms. Madhunisha Singh, learned Deputy Advocate General appearing for the respondents would submit that after receiving the complaint, the police has not acted to please anyone but they has proceeded strictly in accordance with law. In the consequential investigations and inquiries, there is nothing irregular or illegal, which has caused any prejudiced to the rights of the petitioner. The police did not find any computers, laptops etc, and the allegation made by the complainant about the statement of servant Basant Kumar about circulating the pamphlet is absolutely false because there is no such statement given or recorded by the investigation in the entire case. A bare perusal of the entire proceedings of the respondents Police authorities, prima facie, would demonstrate that the action of the police authorities are strictly in accordance with law. The petitioner has not taken any specific ground warranting interference of this Hon'ble Court under Article 226 of the Constitution of India. The petitioner has absolutely failed to demonstrate any ill-intention or personal grudge of any official against the petitioner, therefore, the instant petition is vague and baseless and thus, liable to be dismissed at the threshold. The action taken by the police authorities are are proper, legal, within the jurisdiction and strictly in accordance with law and therefore, there is no infirmity or illegality in the same, thus, the present petition is devoid of any merit and substance and thus, deserves to be dismissed.

We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.

From perusal of the entire material available on record, it is evident that on the complaint filed by the complainant-Smt. Indrajeet Kaur, FIR bearing Crime No. 42/2020 was registered on 29.12.2020 at 20:30 hours at Police Station Mahila Thana, Bilaspur for the offence punishable under Section 509 of the IPC which was against some unknown person. However, during the course of investigation, the complainant raised suspicion against her estranged husband Debashish Banerjee and the petitioner-Dr. Amlendra Nath Mandal. The police investigated the matter and when search was made in the residence of the petitioner-Dr. Amlendra Nath Mandal, one photograph of a nude woman along with the complainant's photo and some description about her with phone numbers, were seized. Accordingly, while filing final report, Section 292(2)(a), 500 and 509 of the IPC were added. The accused-Dr. Amlendra Nath Mandal has not take recourse to the remedy available to him by filing an application under Section 239 of the Cr.P.C. for his discharge from the criminal case. The relief as prayed for by the accused for quashing of the FIR as well as the entire criminal proceedings cannot be granted at this stage as incriminating evidences have been recovered from his house which prima facie makes out a case against him. In the instant case, from the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. The present petition does not fall in any of such category, wherein, this Court can exercise its powers to quash the impugned FIR.

So far as the grievance of the complainant-Smt. Indrajeet Kaur is concerned, she has utterly failed to substantiate her allegation that any undue favour is being shown to the accused. From perusal of the final report, it is evident that initially only one Section i.e. 509 of IPC was registered against the unknown person. However, during the course of investigation, when search was made in the house of the accused, further Sections of the IPC as stated above has been added in the final report. The Court has also taken cognizance of the matter and the criminal case is pending against the accused. As per the return filed by the State, it is evident that no statement of the servant of the accused namely Basant has ever been recorded by the police nor the police has found any computer or laptop in the residence of the accused which could have seized. If the complainant is aggrieved by any action/inaction of the police authorities, she may take recourse to law by leading evidence before the learned Trial Court in support of her case.

The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C.

In a well-celebrated judgment reported in Bhajan Lal & Others (supra), the Apex Court held that those guidelines should be exercised sparingly and that too in the rarest of rare cases. The guidelines are as follows:

“(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety to do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 156(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not onstitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

In Neeharika Infrastructure Pvt. Ltd. (supra), the Apex Court has observed that the power of quashing should be exercised sparingly with circumspection in the rarest of rare cases. While examining an F.I.R./complaint, quashing of which is sought, the Court cannot inquire about the reliability, genuineness, or otherwise of the allegations made in the F.I.R./complaint. The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the Court to be cautious. The Apex Court has emphasized that though the Court has the power to quash the F.I.R. in suitable cases, the Court, when it exercises power under Section 482 Cr.P.C., only has to consider whether or not the allegations of F.I.R. disclose the commission of a cognizable offence and is not required to consider the case on merit.

In view of the aforementioned facts and circumstances and in light of decisions of the rendered by the Supreme Court in the cases as aforesaid, we are of the considered opinion that both the petition i.e. one filed by the accused and the other filed by the complainant, deserve to be and are accordingly dismissed.