Calcutta High Court (Appellete Side)
Sri Tamal Krishna Ghosh vs The State Of West Bengal & Another on 12 July, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Ajoy Kumar Mukherjee
CRR 3102 of 2019
Sri Tamal Krishna Ghosh
-vs-
The State of West Bengal & Another
For the petitioner : Mr. Animesh Paul
For the State Mr. Prasun Kumar Dutta
Md. Kutubuddin
Mr. Santanu Deb Roy
Heard On : 06.07.2022
Judgment On : 12.07.2022
Ajoy Kumar Mukherjee, J.
1. The present revisional application has been directed by the petitioner
with a prayer to quash proceeding being Basirhat Police Station Case No. 422
dated 05.05.2019 under Sections 341/323/325/354/506 of the Indian Penal
Code pending before learned additional Chief Judicial Magistrate, Basirhat,
North 24 Parganas.
2. It has been contended in the revisional application that the petitioner
got married with one Prama Ghosh (Dey), who is the daughter of de-facto
complainant/Opposite Party No.2 in the year 2010 and after solemnization of
the said marriage, the petitioner along with his wife started living as husband
and wife.
3. The petitioner's wife used to visit her paternal home on every interval of
2-3 days and at the instigation of the parents, petitioner's wife left her
matrimonial home on 05.04.2018 at her own volition and since thereafter she
had been residing at her parental home. The petitioner made several attempts
to get her back, but all were in vain.
4. The petitioner also filed a suit for restitution of conjugal rights but in
that suit the petitioner's wife appeared and prayed for decree of divorce by way
of counter claim. As a counterblast of said Matrimonial Suit the petitioner's
wife lodged complain on 28.07.2018 against the petitioner on the basis of
which one proceeding was initiated against petitioner u/s 498A/307/328/201
of Indian Penal Code. After completion of investigation, police submitted charge
sheet in the said case under Section 498A of the Indian Penal Code.
5. It is submitted on behalf of complainant that on 05.05.2019 at about
7.20 P.M., when the petitioner herein was going through the village namely
Asthana Road, where the Opposite Party No.2 / defacto complainant resides,
the opposite party No.2 along with his wife and daughter, on seeing the
petitioner, started to abuse him with filthy language and on protest, the
opposite party No.2 took an iron rod from his house and assaulted the
petitioner with the said iron rod. The petitioner's wife slapped the petitioner.
They also broke the spectacles of the petitioner and looted his personal
belongings. The opposite party No.2 continued assaulting the petitioner by the
said iron rod and when the petitioner felt down on the road, the opposite party
No.2 attempted to throttling petitioner.
6. The petitioner was merciless assaulted and petitioner sustained bleeding
injuries and was admitted to hospital. Thereafter, the mother of the petitioner
had lodged a written complain on 06.05.2019. However, no steps were taken in
that regard and for which the petitioner made an application under Section
156(3) of the Code of Criminal Procedure in the Court of learned additional
Chief Judicial Magistrate, Basirhat, North 24 Parganas.
7. Learned Magistrate was pleased to direct the I.C., Basirhat P.S. to
register an F.I.R. on the basis of the said complain.
8. Since the police authorities were not registering the FIR, petitioner's
mother, namely, Tripti Ghosh filed a Writ Petition before the Hon'ble High
Court, which was registered as W.P. No. 16400 (W) of 2019 and during
pendency of the said Writ Petition, a notice dated 29.08.2019 was served upon
the petitioner wherefrom he came to know that an FIR being Basirhat P.S. Case
No. 778 dated 06.08.2019 under Section 341/325/427/307/379/504/34 of
the Indian Penal Code has been registered on the basis of the said complain
dated 06.05.2019, lodged by the mother of the petitioner.
9. At the same time the opposite party No.2 has managed to lodge present
false complain against the petitioner herein in connection with self-same
incident, upon which present proceeding vide Basirhat P.S. Case No. 422
dated 05.05.2019 under Sections 341/323/325/354/506 of the Indian Penal
Code being G.R. Case No. 2723 of 2019 was started.
10. The allegation levelled in the FIR of present proceeding is that on
05.05.2019 at about 7.30 p.m., the opposite party No.2 at the time of leaving
his house saw that the petitioner herein was passing therefrom and the
petitioner abused opposite party no. 2 with filthy languages and showed his
legs to the opposite party No.2. On query for such behavior, the petitioner
rushed on the opposite party No.2 and then the younger daughter of the
opposite party No.2 came outside to protest, when the petitioner herein rushed
to her and tried to kill her by a brick and also injured her. The opposite party
No.2 when tried to save his daughter, the petitioner herein assaulted the
opposite party No.2 also with fists and blows and kicks and also by brick and
thereafter the local people helped them to save their lives.
11. After completion of investigation, charge sheet has already been
submitted in the present Basirhat Police Station Case No. 422 dated
05.05.2019 under Sections 341/ 323/ 325/ 354/ 506 of the Indian Penal Code
against the petitioner.
12. Learned Counsel for the petitioner, Mr. Animesh Paul submitted that it
would appear from the allegation that there has been a matrimonial dispute
between the petitioner and his wife which resulted in registering the present
complain against the petitioner. Police has submitted charge sheet under
Sections 341/323/325/354/506 of the Indian Penal Code. But the allegation
levelled against the petitioner is absolutely false. On the contrary, the truth is
that the opposite party No.2 along with his wife and daughter had brutally
assaulted petitioner on that day i.e. on 05.05.2019. He further submits that
police without making proper investigation has submitted charge-sheet against
present petitioner, without having cogent material/evidence and as such the
proceeding is liable to be quashed.
13. Perused the petitioner's complaint and the materials available in the
Case Diary. In the written complaint, it has been specifically alleged that on
05.05.2019 at about 7.30 p.m. Present petitioner assaulted defacto
complainant and her daughter with fists and blows, kicks and also by brick bat
and for which they had sustained injuries. It is further alleged that the defacto
complainant and her daughter were hospitalized and got treatment from
Basirhat Hospital.
14. During investigation, it appears that police has collected the injury report
of Pranga Dey (daughter of the defacto complainant) and also injury report of
the defacto complainant, which discloses that petitioner has assaulted
daughter of defacto complainant by brick as recorded by concerned medical
officer, towards history of assault.
15. Police has recorded statement of witnesses under Section 161 Cr.P.C.
during investigation and they have also supported the version of the defacto
complainant in connection with the alleged assault made by the petitioner
upon the defacto complainant and her daughter.
16. In view of the Judgement passed in Bhajanlal Vs. State of Haryana,
reported in AIR 1992 SC 604 and also in view of subsequent line of Judicial
precedents, settled position of law is that it is only when the petition of
complaint does not disclose a prima facie cognizable offence or when the
allegations in the petition of complaint or the FIR are inherently improbable or
absurd or when the petition of complaint or the FIR is malafide one intended
to harass the opponent or when no evidence of legal character is available or
when there is legal bar to the entertainability of the application, the criminal
proceedings should be quashed.
17. In the present case as stated above, contents of the complaint and the
evidence collected in support of the same during investigation as available in
the Case Diary which includes statements recorded under Section 161 Cr.P.C.
and the injury report, discloses prima facie cognizable offence against the
petitioner, and in the absence of any apparent malafideness in lodging
complain, I am of the view that this is not a fit case where the proceeding can
be quashed invoking power under Section 482 Cr.P.C.
18. Accordingly, CRR 3102 of 2019 is dismissed.
19. However it appears that learned Trial court has fixed next date for
framing of charge on 08.03.2023. As such liberty is given to the parties to pray
for preponing of the date and in the event such prayer is made, learned Trial
Court shall make every endeavour to dispose of the case at the earliest,
preferably within a period of one year from this order.
Urgent photostat certified copies of this judgment, if applied for, be supplied to
the parties subject to compliance of all requisite formalities.
( AJOY KUMAR MUKHERJEE, J. )
