Nirmal Kumar Lunawat & Anr vs The State Of West Bengal & Anr
2022 Latest Caselaw 1294 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION

Before:

The Hon'ble Justice Ananda Kumar Mukherjee

                              C.R.R. 2209 of 2014
                          Nirmal Kumar Lunawat & Anr.

                                        -Vs-

                        The State of West Bengal & Anr.



For the Petitioners:                 Mr. Sanjoy Banerjee, Adv.
                                     Ms. Chandrani Das, Adv.
                                     Ms. Riti Basu, Adv


For the State:                       Mr. Madhusudan Sur, Ld.A.P.P.,
                                     Mr. Dipankar Pramanick, Adv.


For the Opposite Party No. 2:        Mr. Anil Kumar Gupta, Adv.

Heard on :                            16.02.2022

Judgment on:                          17.03 2022.



      Ananda Kumar Mukherjee, J. :-

1.

Petitioners being accused in G.R Case No.300 of 2012 have preferred this

revision under section 401 read with section 482 of the Code of Criminal

Procedure 1973, praying for quashing of proceedings in G.R. Case No. 300 of

2012, arising out of Hare Street Police Station Case No. 90 of 2012 dated

24.01.2012 under sections 186/353/114 of the Indian Penal Code, pending

before the Court of learned Chief Metropolitan Magistrate at Calcutta.

2. A brief profile of the case leading to this revision is that, on 24.01.2012

at about 10:A.M Mr. Sunil Kumar Agarwal, Deputy Director Income Tax

Investigation Unit 1(3) Aayakar Bhawan Kolkata along with Mr. Satyacharan

Naskar, ITO, Mr. Samir Kumar Shah, ITO and some other Inspectors went to

the petitioners' premises having their address as "Forum Builders Private

Limited" at 4/1, Red Cross Place, Kolkata-700001 to execute a search warrant

issued under Section 132 of the I.T. Act. The Income Tax Officials showed the

search warrant to Mr. N.K. Lunawat and tried to enter the premises but the

petitioner no.1 along with his staff members including Mr. Sudhakar Ayala

Somayajula abused the Income Tax Officials in filthy language and

manhandled them for the purpose of obstructing them from carrying out their

official duty.

3. A written complaint was lodged by Mr. Sunil Kumar Agarwal, D.D

Income Tax Investigation Unit on 24.01.2012, addressed to the Officer-in-

Charge Hare Street Police Station. On the basis of the written complaint, police

registered Hare Street Police Case No. 90 dated 24.01.2012 under sections

186/353/114 of the Indian Penal Code against the petitioners. After

completion of investigation police submitted charge sheet against the

petitioners on 10.12.2013 under sections 186/353 and 114 of the Indian Penal

Code. Learned Chief Metropolitan Magistrate took cognizance of the offence on

17.12.2013.

4. Being aggrieved and dissatisfied with the charge sheet and the

proceedings arising there from, the petitioners filed this application praying for

quashing of GR Case No. 300 of 2012 on the grounds inter alia that the

impugned proceeding is a glaring example of abuse of the process of court and

the same is liable to be set aside forthwith. That the petitioners and Opposite

Party No. 2 have arrived at a compromise and have mutually settled their

disputes and differences and the Opposite Party has communicated in writing

by his letter dated 06.02.2012 that the department does not wish to continue

the proceeding in view of an amicable settlement between the parties. It is

further urged that in exercise of the plenary and the inherent power vested in

this court, for achieving ends of justice, the impugned proceedings should be

quashed. According to the petitioners there are no satisfactory provisions

under the Code of Criminal Procedure which can affect the inherent power of

the Court under section 482 and even non-compoundable offences under

section 320(9) of Cr. P.C can also be quashed if the parties amicably settled the

dispute.

5. Learned advocate for the petitioner argued that there was some

misunderstanding between the petitioners and the Opposite Party No. 2 when

the Income Tax Officials reached their premises on 24.01.2012. Due to

misunderstanding and some altercation which took place, opposite party no. 2

lodged a complaint against the petitioners but subsequently on 27.03.2012

opposite party no.2 issued a letter in his official capacity address to the Officer-

in-Charge Hare Street Police Station informing that the dispute and differences

between him and the petitioners have been resolved and the department is not

willing to pursue the aforesaid complain anymore. Laying stress upon this

amicable settlement learned advocate for the petitioners urged that after a

compromise has been arrived at between the alleged aggrieved party and the

petitioners, there is no point in proceeding with the case as it would amount to

an abuse of the process of court. Petitioners therefore prayed for quashing of

the proceedings in GR Case No. 300 of 2012 pending before the Court of

learned Chief Metropolitan Magistrate.

6. Heard learned advocate for the State and Opposite Party No. 2. Both

have opposed the prayer for quashing. It is argued on behalf of the State that

investigation has culminated to a charge sheet and the matter which has been

contended by learned advocate for the petitioner is a question of fact to be

established in course of trial and such issues cannot be decided at the stage of

considering an application under section 482 of Cr. P.C. It is submitted that

matter relating to alleged offence and plea of misunderstanding can be

entertained only at the stage when evidence is adduced by the parties and

witnesses stand the test of cross examination.

7. Learned advocate for Opposite Party No. 2, the Deputy Director,

Directorate of Income Tax submitted that the department is not aware about

any application submitted by Mr. Sunil Kumar Agarwal disclosing that the

dispute has been compromised. Furthermore, the offence of obstructing public

servant and obstructing them from discharging official duties is not a

compoundable offence.

8. I have considered the arguments advanced by learned advocate for the

petitioners and Opposite Party No. 1 and 2. The offence disclosed in the

complaint is that the Income Tax Officials were obstructed, abused and

manhandled by the petitioners when they went to the office of petitioner no. 1

at 4/1 Red Cross Place, Kolkata for the purpose of executing a search warrant

under section 132 of the Income Tax Act. Prima facie the allegation of

obstructing officials in discharging the duties appears to be a severe offence.

The averment made on behalf of the petitioners that the dispute between the de

facto complainant and the petitioners have been amicably resolved is a

question of fact and the same has to be established by way of evidence. The

person claiming such compromise shall have to stand the test of cross

examination. A letter purported to have been written by the de facto

complainant address to Hare Street Police Station has been produced by the

petitioners. Learned advocate for Opposite Party No. 2 could not inform the

genuinity of document. On a perusal of a Xerox copy of the letter it appears

that on the top of the Xerox copy of the letter the date has been mentioned as

06.02.2012 but the letter appears to have been signed on 27.03.2012. In the

said document it has been stated that the department is not willing to pursue

the aforesaid complaint anymore and the same may be treated as withdrawn.

However, the learned advocate for Opposite Party No. 2 submitted that he has

no instruction from the department regarding any resolution for withdrawing

the compliant. The petitioners have not disclosed the custody of the latter.

From the copy of the Case Diary produced by learned advocate for the State it

appears that Satyacharan Naskar and Sunil Kumar Agarwal have been

examined by police and both of them have disclosed that the petitioners

abused them and manhandled them when they were on official duties and tried

to execute the warrant under section 132 of the Income Tax Act.

9. Therefore, the statements recorded under Section 161 Cr. P.C cannot be

reconciled with the contents of the purported letter of Sunil Kumar Agarwal. In

view of the contradictions which surface in respect of the material in charge

sheet and the story of petitioners of reaching at a compromise, I am of the

considered view that such question of facts are in the realm of appreciation of

evidence, which cannot be sorted out while considering this application under

section 482 of Cr. P.C. I therefore hold that there is no merit in the application

filed by the petitioners and there is no ground for quashing the impugned

proceeding in GR Case No. 300 of 2012 pending before learned Chief

Metropolitan Magistrate, Calcutta. The revisional application is thus dismissed

on contest. Copy of the Case Diary be return to the learned advocate for the

State.

10. Interim order in connection with this case stands vacated. All connected

applications are also disposed of.

11. Let a copy of this judgment be sent to learned Chief Metropolitan

Magistrate, Calcutta for information with a direction to expedite the trial of the

case in accordance with law.

12. Urgent Photostat certified copy of this order may be supplied to the

parties expeditiously if applied for, maintaining all formalities.

(Ananda Kumar Mukherjee, J.)