Sidharth Gupta vs The State of West Bengal and Others

Kalidas Mukherjee, J.—This is an application under Sections 397, 401 read with Section 482 of the Code of Criminal Procedure assailing the order dated July 10, 2008 passed by learned Chief Judge, City Sessions Court, Calcutta in Criminal Revision No. 148 of 2007 whereby and whereunder the Revisional Application was allowed setting aside the order dated 16.11.2007 in G.R. 2411 of 2000 passed by learned M.M.8th Court, Calcutta. The learned Judge allowed the petition u/s 239 Cr PC and discharged the accused persons.

The case of the Petitioner/defacto complainant, in short, is that he was appointed one of the trustees to the estate of Smt. Sibraji Gupta by virtue of a registered deed of trust dated 21.7.1989 executed by Smt. Sibraji Gupta being the erstwhile and the sole owner of the premises No. 4, Sarkar Lane, Kolkata comprised in holding No. 145, Calcutta. By the said deed of trust Sibraji Gupta appointed Sidharth Gupta and Biswabandhu Gupta as Trustees of the said Trust estate. The Trust Deed is irrevocable. The accused No. 2 & 3 by practising fraud and suppressing the material facts and making false declaration committed forgery in order to cheat the complanant and managed to create a forged deed of gift through Smt. Sibraji Gupta by exercising undue influence and coercion upon her. Thereafter the accused Nos. 2 & 3 set up the accused No. 1 as a fictitious licensee in respect of one room of the said premises No. 4 Sarkar Lane, Kolkata and filed a proceeding u/s 41 of Presidency Small Causes Act, in the Court of Presidency Small Causes Court, Calcutta being Case No. 406 of 1999. In the said proceeding the accused Nos. 2 & 3 made false statement deliberately in respect of gift. They got an order of eviction in respect of one room of the said premises. The accused No. 1 was never in possession of any room or any portion of 4, Sarkar Lane nor was the licensee thereof. With the intention of wrongful gain the accused No. 1 joined the accused Nos. 2 & 3 and accordingly accused No. 1 granted consent before the Small Causes Court, Calcutta for getting the order of eviction. By fraudulently obtaining the order of eviction, the accused Nos. 2 & 3 all on a sudden arrived with police at 4, Sarkar Lane on May, 20 of 2000 and asked the complainant and his brother to leave the suit premises. The complainant raised protest against such activities. The accused Nos. 2 & 3 forcibly took wrongful possession of the same by dispossessing the complaint by adopting the criminal force, made trespass and misappropriated goods worth Rs. 4,00,000/-. Under the circumstances, the complainant filed the case before the learned Court below.

The case was sent to the P.S. u/s 156(3) Cr PC. After completion of investigation charge sheet was submitted. The accused persons at the time of framing of charge filed a petition u/s 239 Cr PC praying for discharge.

The learned Magistrate upon hearing both sides rejected the petition u/s 239 Cr PC holding that prosecution was able to establish the prima facie case and without trial it was not possible to come to a final decision as to whether the alleged offences were committed or not. Being aggrieved by the said order passed by the learned Magistrate the accused persons filed a Revisional Application before the learned Chief Judge, City Sessions Court, Calcutta.

The learned Chief Judge after hearing both sides allowed the Revisional Application and set aside the order passed by the learned Magistrate and the accused persons were discharged. It has been held by the learned Judge that the parties are co-sharers and they are in possession of the property by an order of the Court and, as such, there could not be any case of extortion against the accused persons as alleged by the defacto-complainant. The learned Judge held that there was no existence of the essential ingredients u/s 384 IPC against the accused persons for framing charge.

The learned Judge further held that as per the ingredients of Section 207 IPC the prosecution was to prove that the property in question or interest therein had become or was likely to become liable to be taken as forfeiture for such fine, or taken in execution of such decree or order and the accused received such property or delivered such property or interest therein intending thereby to prevent such property from being taken. The learned Judge further held that on the basis of materials on C.D. the prosecution could not prove that there was any such case of fraudulent claim of property. The learned Judge held that the charge was groundless and passed the order impugned.

Mr. Moitra appearing on behalf of the Petitioner submits that charge sheet was submitted and the the parties may be co-sharers, but, that does not rule out the case of forgery and extortion. Mr. Moitra contends that when the learned Magistrate decides to frame charge, no reason is required to be assigned and in case when the learned Magistrate finds that there is no material for the framing of charge, the reasons are to be assigned. It is contended that Smt. Sibraji Gupta has stated u/s 161 Cr PC that in the year 1999 she was taken to Court and asked to sign on a paper; when she refused to sign, Somdeb Gupta and his two sons Dr. Subhranshu Gupta and Dr. Anish Gupta compelled her to sign on the paper. She has also stated that subsequently she came to learn that the premises No. 4, Sarkar Lane, Kolkata was managed to have been included in the purported deed of gift fraudulently. She has stated that Somdeb Gupta got an order from the Court and took possession of the said premises. She has also stated that Somedeb Gupta and his sons committed cheating and got the said property transferred in the names of his sons fraudulently.

Mr. Moitra submits that at the time of framing of charge the Court has to consider the prima facie case only and evidentiary value should be assessed all the time of trial. Mr. Moitra has referred to and cited the decisions reported in 1989 SCC (Cri. ) 285 [Shree Atyachar Virodhi Parishad v. Dilip Nathumal Clordia]; Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, ; Kanti Bhadra Shah and Another Vs. The State of West Bengal, Judgment Today 2000 (Suppl. 2) SC 635 [State of Delhi v. Gyan Devi and Ors.].

Mr. Roy Chowdhury appearing on behalf of the State submits that there is no allegation of coercion or threat u/s 384/207 IPC and the learned Magistrate did not go through the materials in the C.D. in detail.

Mr. Singh appearing on behalf of the O.P. Nos. 2 & 3 submits that no document was seized by the police during investigation. It is contended that in the statement of Smt. Sibraji Gupta u/s 161 Cr PC there was no element to show that she was put into fear. It is submitted that the dispute is purely civil in nature. Mr. Singh submits that there is no material in support of the ingredient of the offence u/s 384 IPC. It is submitted that the learned Magistrate did not record a reason while rejecting the petition u/s 239 Cr PC and the learned Sessions Judge very rightly came to the opinion the the learned Magistrate was wrong in rejecting the petition u/s 239 Cr PC. Mr. Singh has referred to and cited the decisions reported in 1999 Cri LJ 2179 Raj [Sarveshwar Singh v. State and others]; 1977 SCC (Cri) 404 para 10[State of Kamatakav. L. Muniswamy and others; R.S. Nayak Vs. A.R. Antulay and Another,

In the case of Sarveshwar Singh v. State and Ors. (supra) it has been held that a private party has no locus standi to invoke revisional jurisdiction In case proceeded on police report to challenge the order of discharge. It has further been held that however, u/s 397 Cr PC. High Court suo mou can call for and examine the record of a Criminal Court for the purpose of satisfying itself as to the correctness, legality, propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings.

In case of R. S. Nayakv. A. R. Antulay (supra) it has been held that where there is no fear or threat there cannot be any case of extortion.

In the case of State ofKamataka v. L. Muniswamy and Ors. (supra) it has been held that or purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses a comparatively wider discretion in the exercise which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.

In the case reported in ShreeAtyacharVirodhiParishadv. Dilip Natumal Chordia and Anr. (supra) it has been held by the Apex Court that when the Trial Court, finding a primafacie case and prefers to frame charges against the accused, High Court should not interfere by probing into sufficiency of grounds for conviction of the accused and ordering his discharge.

In the case of Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others it has been held by the Apex Court that where there are materials on record capable of inferring strong suspicion about commission of the offence, it would be sufficient for framing of charge. The observation of the Apex Court in para 18 runs thus:

It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar Vs. Ramesh Singh, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.

In the case reported in JT 2000 (Suppl. 2) SC 635 (supra) it has been held that at the stage of framing of charge the Court is to examine the materials only with the view to be satisfied that a prima facie case of commission of an alleged offence has been made out.

In case of Kanti Bhadra Shah and Anr. v. State of West Bengal (supra) it has been held that no reasons are required to be recorded when charges are to be framed against an accused and reasons are to be recorded only when accused is to be discharged. In the instant case the complaint was filed before the learned Magistrate and thereafeter it was sent to the P.S. u/s 156(3) Cr PC. In view of the decision in the case of Kanti Bhadra Shah and Anr. v. State of West Bengal (supra) I find that the instant revisional application is maintainable.

It is the case of the complainant that a Deed of Gift was managed to have been executed by Smt. Sibraji Gupta in favour of accused Nos. 2 & 3. It is the further allegation of the complainant that acting on that Deed a suit was instituted for eviction fraudulently citing accused No. 1 as a licensee in one room of the disputed premises. It is alleged that in collusion with accused No. 1 a decree was fraudulently obtained and possession was taken forcibly. The learned Magistrate on perusal of the materials appearing in the C.D. was pleased to hold that a prima facie case was there and, as such, rejected the petition for discharge u/s 239 Cr PC filed by the accused persons. The learned Sessions Judge reversed the order of the learned Magistrate holding that amongst the co-sharers there could not be any extortion u/s 384 IPC and as to the allegation u/s 207 IPC it was held that there was no such case of fraudulent claim of property.

Mr. Moitra has drawn my attention to the statement of Sibraji Gupta recorded u/s 161 Cr PC. On perusal of tne statement I find that Sibraji Gupta has alleged that she was taken to the Court and asked to sign a paper and when she refused to sign she was compelled to sign. Having regard to the totality of the statement u/s 161 Cr PC it is clear that Sibraji Gupta was aggrieved in the way she was compelled to put signature on the paper. She has alleged that the purported Deed of Gift was managed to have been executed by her. This compulsion, prima facie, signifies the application of force. I laving regard to the circumstances stated by Sibraji Gupta in her statement u/s 161 Cr PC and the allegations raised by the defacto-complainant I find that the learned Chief Judge, City Sessions Court viewed the matter in a wrong angle of vision. The finding of the learned Judge that in case of co-sharers there could not be any case of extortion is not tenable. I find that the learned Magistrate was right in rejecting the application u/s 239 Cr PC. The learned Judge committed material irregularity which resulted in failure of justice.

The impugned order passed by the learned Chief Judge, City Sessions Court is set aside and the order dated 16.11.2007 passed by the learned M.M. 8th Court, Calcutta is restored. The learned Magistrate will proceed to hear the case according to law. The application under Sections 397, 401 read with Section 482 of the Code of Criminal Procedure is allowed.

Let a copy of this judgment be sent down to the learned Court below immediately.

Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.