Amit Kumar Ghosh & Ors vs The State Of West Bengal & Anr
2021 Latest Caselaw 4089 Cal

05.08.2021               IN THE HIGH COURT AT CALCUTTA
Item No.1                CRIMINAL REVISIONAL JURISDICTION
Ct.No.34
   dc.
                                   C.R.R. 2261 of 2018
                                   (Via Video Conference)

                               Amit Kumar Ghosh & Ors.
                                          versus
                            The State of West Bengal & Anr.

In Re: An Application under Section 482 of the Code of Criminal Procedure, 1973.

Mr. Ujjwal Datta, Mr. Bodhisatta Basu ... For the Petitioners.

             Mr. Abhra Mukherjee,
             Ms. Manisha Sharma,
             Mr. Dipankar Mahato               ... For the State.

             Mr. Supreem Naskar                ... For the Opposite Party No.2.

The present revisional application has been preferred

challenging the proceedings being B.G.R No. 4062 of 2017

arising out of Maheshtala Police Station Case No. 458 of 2017

dated 09.08.2017 under Sections 380/448/427/323/506 of

the Indian Penal Code.

It has been submitted that presently the proceedings

are before the learned Judicial Magistrate, 10th Court, Alipore

and next date is fixed on 11.11.2021 for appearance.

Learned advocate appearing for the petitioners submits

that the petitioners are aged, some of whom are senior

citizens and they have been falsely implicated in the instant

case, although they are residents of the Complex. The learned

advocate further submits that the police authorities after

conducting a perfunctory investigation, came to a finding that

offences under Sections 448/323/506/34 of the Indian Penal

Code have been made out. According to the learned advocate,

the said case was initiated as one of the petitioners filed a

civil suit before the jurisdictional court wherein interference

was made by the learned civil court.

Learned advocate appearing for the State produces the

case diary and draws the attention of this Court to the

statement of the witnesses, the medical report, the seizure list

and submits that, prima facie, offence has been made out for

continuation of the trial.

Learned advocate for the de facto complainant/opposite

party no.2 draws the attention of this Court to the allegations

made in the application under Section 156(3) of the Code of

Criminal Procedure which has been treated as FIR in the

instant case as also the statement of the witnesses recorded

under Section 161 of the Code of Criminal Procedure which

are made available as enclosure to this revisional application.

The learned advocate for the petitioners in order to

substantiate his contention relied upon a judgment of the

Hon'ble Supreme Court in Punjab National Bank Ltd. Vs. All

India Punjab National Bank Employees' Federation and

another reported in AIR 1960 Supreme Court 160. By

referring to paragraph 47 of the said judgment, it has been

interpreted that the residents having approached the office of

the Complex cannot be made liable for having committed

offence relating to trespass.

I have taken into account the observations made by the

Hon'ble Supreme Court and the judgment relied upon by the

learned advocate. I find that the case related to provisions of

Industrial Disputes Act wherein the learned court was called

upon to interpret trespass in respect of employees.

Having considered the aforesaid judgment, with due

respect, I am of the view that such observation at paragraph

47 of the said judgment was made for interpreting the term

'trespass' in respect of persons who are accused for alleged

violation of the provisions of the Industrial Disputes Act and

the same do not lay down a strait jacket formula for

interpreting circumstances as referred to in the present case.

The learned advocate for the petitioners also relied

upon a judgment of the Hon'ble Supreme Court in State of

U.P. Vs. Sahrunnisa & Anr. reported in AIR 2009 Supreme

Court 3182. The purpose of relying upon such judgment is

regarding the interpretation of common intention. It would

not be out of place to state that the issue of common

intention would come only when substantial offence referred

to is proved. The presence or absence of the accused is to be

proved at the stage of trial. There is no dispute regarding the

interpretation of common intention. However, the

applicability of the said judgment in the present facts of the

case is not relevant.

Other judgment which has been relied upon by the

learned advocate for the petitioners is Inder Mohan Goswami

& Anr. Vs. State of Uttaranchal & Ors. reported in AIR 2008

Supreme Court 251. In the said case, the facts related to

dispute arising out of cancellation of agreement for the

purpose of selling out the property and the Court was called

upon to adjudicate a dispute under Sections 420, 120B, 467

of the Indian Penal Code. Under those circumstances, it was

the opinion of the Hon'ble Apex Court that the criminal case,

which has been instituted, was with the purpose of

harassment.

I have taken into account the judgments so relied upon

by the learned advocate for the petitioners and I am of the

view that each and every 161 statement, which has been

recorded by the investigating officer, reflects that there was a

demand for the purpose of which the accused persons had

entered into the office. The tenor of 161 statement also

reflects that there was assault inflicted upon an individual.

Now issue over here is that whether the term 'demand', so

referred to in 161 statement, is supported by any material. To

that effect, I agree with the contention of the learned advocate

for the opposite party no.2/de facto complainant that the

same has been referred to in the FIR/application under

Section 156(3) of the Code of Criminal Procedure. It has also

been settled by the Hon'ble Supreme Court that if the facts

are hazy, the High Court while exercising its jurisdiction

under Section 482 of the Code of Criminal Procedure should

not ordinarily interfere. As such, the contentions regarding

the truthfulness or falsity of the statement or whether the

statement of the persons who entered into the office cannot

be appreciated at this stage of the case when the learned trial

court is in seisin at the stage of consideration of charge. The

sections for which offences have been alleged under the

relevant provisions of the Indian Penal Code may not be in

relation to heinous offences but they are offences and the

facts of the case do not rule out the possibility of such act on

behalf of the accused petitioners. It is only in trial the real

truth comes out and by way of effective cross-examination,

the petitioners would be able to rebut the prosecution case.

This Court has been informed by the learned advocate

for the petitioners that some of the accused persons are

senior citizens. Accordingly, if an application under Section

305 of the Code of Criminal Procedure or Section 205 of the

Code of Criminal Procedure is taken out by the petitioners

with proper affidavits, the learned Magistrate is granted

liberty to condone their absence in day to day proceedings

until and unless the proceedings cannot progress without

their physical presence.

With the aforesaid observations, CRR 2261 of 2018 is

dismissed.

Interim order, if any, is hereby vacated.

All pending applications, if any, are consequently

disposed of.

The investigating officer of the case is present in Court.

His further appearance is dispensed with from this case.

The status report dated 18.07.2021, so submitted by

the learned advocate for the State, be kept with the record.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

Urgent photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

(Tirthankar Ghosh, J.)