Calcutta High Court (Appellete Side)

Rajkumar Mondal @ Raja vs The State Of West Bengal on 14 July, 2021

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                         APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH


                          C.R.R. 2917 of 2014
                                    with
           IA NO. CRAN 3 of 2015 (Old No. CRAN 3965 of 2015)

                          (Via Video Conference)

                      Rajkumar Mondal @ Raja
                                -vs.-
                      The State of West Bengal

For the Petitioner             :     Mr. Debasish Roy,
                                     Mr. Sourav Chatterjee,
                                     Mr. Soumya Nag

For the State                  :     Ranabir Roy Chowdhury,
                                     Mr. Ashok Das

Heard on                       :     08.07.2021 & 09.07.2021

Judgment on                    :     14.07.2021



Tirthankar Ghosh, J:-

      The revisional application has been preferred against the judgment

and order dated 14.08.2014 passed by the Learned Additional Sessions

Judge, Nabadwip, Nadia in connection with S.C. No. 4(6) of 2014 arising out

of Nabadwip Police Station case no. 280 of 2013 dated 23.05.2013 under

Sections 448/376/511/323/506 of the Indian Penal Code, wherein the

learned Sessions Court was pleased to reject the application of the petitioner
                                        2


under Section 227 of the Code of Criminal Procedure, thereby refusing to

discharge the petitioner from the case.


      The prosecution case in nutshell is to the effect that one Monika

Karmakar lodged a complaint with the Inspector-in-charge of Nabadwip

Police Station to the effect that she is a poor woman staying with her mother

at Tegharipara, Kalabagan, Bhatarpara P.O & P.S.- Nabadwip, District-

Nadia. She alleged that adjacent to her residence one Raja Mondal

(hereinafter referred to as "the petitioner") runs a factory and is very

influential in the area. The said Raja Mondal often with his associates

indulges in illegal activities including teasing her. However, because of social

embarrassment she could not divulge the same to anyone but lastly on

20.05.2013

at about 8.00 pm taking advantage of absence of her mother the

petitioner under the influence of alcohol entered her residence and touched

her private parts and attempted to rape her by throwing her on the ground.

Being afraid of the circumstances, the complainant raised hue and cry when

the petitioner threatened her with dire consequences of murdering her. The

complainant thereafter informed the incident to her neighbours and being

worried of the situation sent the complaint through Postal Authorities to the

police station.

On the basis of such complaint being received on 23.05.2013,

Nabadwip Police Station case No. 280 of 2013 was registered for

investigation under Section 448/354/376/511/323/307 of Indian Penal

Code. The Investigating Authorities on completion of investigation submitted

charge-sheet under Section 448/376/511/323/506 of Indian Penal Code.

The list of witnesses included the complainant Monika Karmakar and other

witnesses namely, Papita Karmakar, Mukti Sarkar, Samir Roy, Narayan

Biswas, Laxmi Bala, Goutam Mondal, Dr. Partha Sarathi Sarkar, ASI

Basudev Mondal and SI Tapas Kr. Ghosh.

Mr. Debasish Roy, learned advocate appearing for the petitioner drew

the attention of this Court to the general diary entry No.37 dated

01.03.2012 wherein it was alleged that one Deboprasad Bhattacharya

alleged that one Bangladeshi immigrant namely, Bhabotosh Biswas @

Karmakar has illegally encroached in the tin shade located on his land. The

said Deboprasad Bhattacharya subsequently sold the property to the

present petitioner one Raja Mondal by way of deed of conveyance of sale.

Learned Advocate also drew the attention of this Court to the copy of the FIR

relating to Nabadwip Police Station case no 646 of 2012 under Section

420/468/471 of IPC and Section 14 of the Foreigners Act and referred to the

accused persons namely, Bhabotosh Biswas @ Karmakar and Rupa Biswas

@ Karmakar who have been implicated in the said case because of entering

India on the basis of forged documents. Learned advocate also drew the

attention of this Court to the order dated 18.12.2013 passed by the Hon'ble

High Court, Calcutta in CRM 16309 of 2013 wherein it was held that the

epic card and the ration card were forged and as such the bail application of

Rupa Biswas was rejected. It has been submitted that the said Rupa Biswas

was subsequently granted default bail as the police authorities failed to

submit the charge within the statutory period. Learned Advocate thereafter,

draws the attention of this Court to a complaint lodged with the Member

Secretary, West Bengal Pollution Control Board, wherein the present

complainant was the first signatory and she alleged that because of the

factory being run at the area where she is residing the local residents are

suffering from pneumonia, allergy, headache, respiratory problems and

infection in the eyes. It has been further alleged in the said compliant that

the factory is creating pollution in the area and as a result of which the

agriculture as well as the total ambience of the area is destroyed.

Consequent to such complaint, Senior Environment Engineer directed for

necessary regulatory order and taking legal steps against the

unit/establishment. Accordingly, an inspection was directed to be carried

out. On completion of inspection an inspection report dated 09.01.2014 was

submitted in respect of the factory of the present petitioner and on

assessment of the same it was categorically observed in the Inspection

Report that "During inspection this type of activity was not observed and the

local residents also informed that they have not seen the any stone crushing

activity by the unit in this location. Old burnt tyres were also not observed at

the time of Inspection."

Learned Advocate has also submitted that the witnesses so relied

upon by the prosecution are some of the signatories to the complaint which

was lodged with the West Bengal Pollution Control Board and/or the

persons who are aiding the complainant and his relation to illegally occupy

or encroach a part of the land. It has been further pointed out that the

petitioner refused to undergo any medical examination which is revealed

from the statement of the doctor dated 05.06.2013 and most of the

witnesses have vaguely narrated the incident without any knowledge

regarding the same. Learned advocate emphasized that the present

complainant being the sister of the said Bhabotosh Biswas alias Karmakar

and sister-in-law of Rupa Biswas alias Karmakar who are illegal immigrants

from Bangladesh has mala fidely implicated the petitioner in the instant

case. As such the present proceedings are required to be quashed.

Mr. Ranabir Roy Chowdhury, learned Advocate appearing for the

State opposes the prayer of Mr. Roy and supports the order passed by the

learned Sessions Court. According to the learned Advocate the Court at the

time of consideration of charge cannot travel beyond the police papers and

the nature of the present case do not fall within the 'rarest of rare' case for

invoking the jurisdiction of this Court under Section 482 of the Code of

Criminal Procedure for quashing the same without a full fledged trial being

conducted.

I have perused the allegations in the FIR, charge-sheet as also the

documents relied upon by the prosecution under Section 207 of the Code of

Criminal Procedure as also the FIR of Nabadwip PS case no. 646 of 2012

along with the complaint addressed to the West Bengal Pollution Control

Board, as also the Inspection Report dated 09.01.2014.

In Vineet Kumar and Ors. -Vs. - State of Uttar Pradesh and Anr.

reported in (2017) 13 SCC 369 wherein the Hon'ble Supreme Court in

paragraph 41 was pleased to observe as follows:

"41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case

solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , which is to the following effect : (SCC p. 379, para 102) "102. (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." Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."

Relying upon the earlier judgment the Hon'ble Apex Court in Ahmed

Ali Quraishi and Anr. -Vs. - State of Uttar Pradesh and Anr. reported in

(2020) 13 SCC 435 was pleased to reiterate its earlier stand which is

reflected in paragraph 23 is as follows:

"23. In the facts of present case, we are fully satisfied that present is a case where criminal proceedings have been initiated by the complainant with an ulterior motive due to private and personal grudge. The High Court although noticed the judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] in the impugned judgment but did not examine the facts of the case as to whether present is a case which falls in any of the category as enumerated in Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . The present case clearly falls in Category (7) of Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and the High Court failed to exercise jurisdiction under Section 482 CrPC in quashing the criminal proceeding initiated by the complaint."

This Court while exercising its jurisdiction under Section 482 of the

Code of Criminal Procedure need not restrict itself only to the stage of the

case but is empowered to take into account the overall circumstances

leading to the initiation/registration of the case, as well as the materials

collected in course of investigation and it is in the background of such

circumstances the previous litigations assume importance, thereby

attracting the issue of wreaking vengeance due to private and personal

grudge. On an appreciation of the judgment referred to above along with the

circumstances presented before this Court so far as the instant case is

concerned, I am of the view that the petitioner has been able to successfully

bring its case within the ambit of Category-7 of Bhajan Lal's case (supra).

Accordingly, the further continuance of the proceeding including the