Sri Susanta Ghosh vs State of West Bengal

Tarun Kumar Gupta, J.—This is an application u/s 482 of the Code of Criminal Procedure, 1973 (henceforth to be referred as Code of 1973) praying for quashing of the criminal proceedings being Anandapur police station case No. 36 of 2011 dated 6th June, 2011 u/s 147, 148, 149, 448, 326, 307, 302, 506, 201 and 120B of the Indian Penal Code (hereinafter referred to as I.P.C.) read with sections 25 and 27 of the Arms Act corresponding to Sessions Trial No. XIX of January, 2012 pending before the learned Additional Sessions Judge, 4th Court, Paschim Medinipore and the charge sheet, so submitted in connection therewith. The case of the petitioner accused may be summarized in short as follows:-

One Shyamal Acharya, son of late Ajoy Acharya lodged a written complaint dated 5th of June, 2011 alleging that on 22.09.2002 while his father along with some Trinamool Congress members came to his native house the present petitioner together with 39 other accused persons named therein belonging to the political party CPI(M) armed with fire arms, bombs and deadly weapons came to their house and started to assault his father and his companions and chased them up to Piyasala village and killed his father and his companions total seven in number in the farmyard of one Gobinda Maji. In said complaint it was further alleged that though after few days said incident was informed in writing to the Midnapur S.P. but Keshpur Police station received the written complaint only on 26th September, 2002 through the S.P. It was further alleged therein that after learning the incident of recovery of some human skeletons by police by digging earth on Dasherband, Keshpur he went there and identified the skeleton of his father by seeing his wearing apparels as well as his teeth. On the basis of said specific complaint of Shyamal Acharya Anandapur Police Station case No. 36 of 2011 dated 6th of June, 2011 was started which ended in filing charge sheet under sections 147, 148, 149, 341, 367, 449, 326, 307, 302, 201, 109, 114, 115, 117 and 120B.

Over the self-same incident Shyamal''s sister Chandana Acharya filed a complaint which was registered as Keshpur P.S. case No. 61 dated 26.09.2002. In said case charge sheet was submitted and after full-fledged trial the accused persons were acquitted. Neither in the FIR nor in the charge sheet nor during evidence the name of the present petitioner was disclosed as a co-accused in said Keshpur P.S. case No. 61 of 2002. Apart from said specific Keshpur P.S. case No. 61 of 2002, over the alleged incident of 22nd of September, 2002 three more cases being Keshpur P.S. case No. 58, Keshpur P.S. case No. 59 and Keshpur P.S. case No. 60 all of 2002 were initiated resulting filing of charge sheets. In none of those cases the present petitioner''s name appeared at any point of time as a person involved in any of the incidents held on 22nd of September, 2002. After long 9 years of the alleged incident a false complaint was filed to rope the present petitioner on account of political rivalry. The present FIR being Keshpur P.S. Case No. 36 dated 6th of June, 2011 has been filed with mala fide and malicious intention with ulterior motive for wreaking vengeance on the accused petitioner on account of political rivalry. The present petitioner at the relevant time was an elected Member of Legislative Assembly and also a Minister of State, Department of Labour, Government of West Bengal. The petitioner was an active member of the CPI(M) party and after the change of political scenario in West Bengal this false complaint was filed at the behest of the rival political party Trinamool Congress to malign as well as to harass the petitioner in a false case. The petitioner has accordingly prayed for quashing the pending criminal proceeding.

Mr. Sekhar Basu, learned senior counsel appearing for the O.P. State, submits that the instant petition is not maintainable as the petitioner may very well ventilate his grievances at the time of hearing on the point of framing of charge. According to him, if there is a specific provision in the Code of 1973 for ventilating the grievances then this Court should be reluctant to invoke the extraordinary power u/s 482 of the Code of 1973. According to him, as the sessions case is presently posted for hearing on the point of framing of charge this Court should not entertain the instant application and should reject the same being not maintainable.

At the prayer of Mr. Basu the hearing was made only on the point as to whether the instant application u/s 482 of the Code of Criminal Procedure is maintainable at this stage when the matter is posted for hearing on the point of framing of charge in the trial Court and particularly when the petitioner has already filed an application u/s 227 of the Code of 1973 praying for discharge.

In support of his contention Mr. Basu has referred para 8 of the case reported in Madhu Limaye Vs. The State of Maharashtra, .

In the case of Madhu Limaye (supra) it was held by the Hon''ble Apex Court as follows:-

At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions:-

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted if any other provision of the Code.

Mr. Basu has also referred to para 21 of the case law reported in Amit Kapoor Vs. Ramesh Chander and Another, . In Para 21 of the case of Amit Kapoor (supra) Hon''ble Apex Court compared the revisional powers of the High Court u/s 397 of the Code vis-a-vis the inherent power of the High Court u/s 482 of the Code. It was observed by the Hon Tale Court that the power u/s 482 is unlimited and can be exercised to prevent the abuse of the process of the Court and that the Court should impose self-restraint in the matter of invoking said extraordinary power u/s 482 of the Code.

Mr. Kapoor, learned senior counsel appearing for the petitioner, on the other hand, submits that merely because an accused has a right to plead at the time of framing of charge or has a right to pray discharge is no ground to debar him to approach the High Court even at an earlier point of time for quashing the criminal proceeding u/s 482 of the Code of 1973 if it can be shown that continuation of the criminal proceeding will be nothing but an abuse of the process of the Court.

In support of his contention Mr. Kapoor refers a case law reported in Ashok Chaturvedi and Others Vs. Shitulh Chanchani and Another, wherein it was held as follows:-

Merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in section 245 of the Code, he is not debarred from approaching the Court even at an earlier point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. Power u/s 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of Court, and therefore, there cannot be any dispute that in such case power u/s 482 of the Code can be exercised.

Mr. Kapoor also refers a case law reported in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, wherein it was held as follows:-

No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court u/s 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.

Mr. Kapoor next refers a case law reported in G. Sagar Suri and Another Vs. State of U.P. and Others, wherein Hon''ble Apex Court held as follows:-

The Supreme Court has laid certain principles on the basis of which-the High Court is to exercise its jurisdiction u/s 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Merely because the accused persons had already filed an application in the Court of Additional Judicial Magistrate for their discharge, it cannot be urged that the High Court cannot exercise its jurisdiction u/s 482 of the Code. Though the Magistrate trying a case has jurisdiction to discharge the accused at any state of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court u/s 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.

In this connection Mr. Kapoor also refers a case law reported in (2003) 4 SCC 675 para 8 to impress upon this Court that Madhu Limaye case (supra) referred by learned counsel for the O.P. State did not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in section 482 of the Code. In said case Hon''ble Apex Court held "We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power."

Mr. Kapoor next submits that the power to be exercised by the learned Trial Court u/s 227 of the Criminal Procedure Code is limited. According to him, charges can also be framed on the basis of strong suspicion and that at the time of hearing u/s 227 of the Code of Criminal Procedure considering the prayer for discharge of the accused person or at the time of framing of charge u/s 228 of the Code of Criminal Procedure marshalling or appreciation of evidence is not in the domain of the Court at that point of time. Accordingly, he submits that pendency of the criminal trial for hearing on the point of framing of charge or for considering the prayer for discharge of the accused is no ground for considering the application u/s 482 of the Code of 1973 filed by the accused petitioner to be not maintainable.

Admittedly, the present petitioner has filed an application in the learned Trial Court praying for discharge u/s 227 of the Code of 1973. The matter was also posted-for hearing on the point of framing of charge. In the case of Amit Kapoor (supra) Hon''ble Apex Court laid down the nature of power to be exercised by Court of Sessions u/s 227 as well as 228 of the Code of 1973 as follows:-

Framing of a charge is an exercise of jurisdiction by the Trial Court in terms of section 228 of the Code, unless the accused is discharged u/s 227 of the Code. Under both these provisions, the Court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the Court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of sections 227 and 228 of the Code of 1973, section 227 is the expression of a definite opinion and judgment of the Court while section 228 is tentative.

In R.S. Raghunath Vs. State of Karnataka and another, the Hon''ble Apex Court stated that though it my not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power u/s 482 of the Code for quashing of an FIR should be exercised, there are circumstances where the Court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; where there is an expressed legal bar engrafted in any of the provisions of the Code; and 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 person grudge.

Mr. Basu tried to distinguish the case laws referred by Mr. Kapoor by saving that those cases related to offences triable by a Magistrate under warrant procedure. Unfortunately, I am unable to appreciate said submission of Mr. Basu. In the case laws referred by Mr. Kapoor it was specifically stated that the power of the Trial Court during hearing the prayer for discharge of the accused and/or the charges to be framed the scope of examination was limited. It was further held therein that the scope of examination of the claim of the accused petitioner for quashing of the proceeding u/s 482 of the Code of 1973 is much wider. It was also specifically held that pendency of an application filed by the accused petitioner praying for discharge in Trial Court is also no ground for disallowing him to file and press an application u/s 482 of the Code of 1973 praying for quashing of the criminal proceeding.

It is thus apparent that an application u/s 482 of the Code of 1973 praying for quashing of the criminal proceeding is quite maintainable even when the matter is posted in the learned Trial Court for considering the prayer for discharge of the accused petitioner u/s 227 and/or for hearing on the point of framing of charge u/s 228 of the Code of 1973. Fix 24th of June, 2013 for hearing of this case as a "Specially Fixed Matter" to be taken up at 3 p.m.

Urgent photostat certified copy of this order be supplied to the learned counsels of the parties, if applied for.

Tarun Kumar Gupta, J.