Udit Prakash @ Bikash vs The State Of West Bengal & Anr
2022 Latest Caselaw 1659 Cal

30.03.2022                 IN THE HIGH COURT AT CALCUTTA
Item No.61                 CRIMINAL REVISIONAL JURISDICTION
Ct.No.34
   dc.
                                 C.R.R. 2429 of 2019

                                Udit Prakash @ Bikash
                                        versus
                              The State of West Bengal & Anr.

             In Re: An Application under Sections 401/397 read with
             Section 482 of the Code of Criminal Procedure, 1973 filed in
             connection with G.R. Case No. 1330 of 2016 arising out of
             Asansol GRPS Case No. 35 of 2016 dated 25.05.2016.

             Ms. Afreen Begum,
             Mr. Fahad Imam,
             Mr. Debanjan Mukherjee          ... For the Petitioner.

             Mr. Imran Ali,
             Ms. Manisha Sharma              ... For the State.

             Mr.   Satadru Lahiri,
             Mr.   Sourav Paul,
             Mr.   Safdar Azam,
             Mr.   Sirsho Dasgupta           ... For the Opposite Party No.2.



                     The present revisional application has been preferred

             challenging the continuance of the proceedings relating to

             Sessions Case No. 120 of 2018 arising out of Asansol GRPS

             Case No. 35 of 2016 dated 25.05.2016 including the order

             dated 05.08.2019 passed by learned Additional Sessions

             Judge, 2nd Court, Asansol wherein the learned trial court was

             pleased to reject the prayer for discharge of the petitioner

             from the instant case.

                     Learned advocate appearing for the petitioner submits

             that the petitioner viz. Udit Prakash @ Bikash happens to be

             the brother-in-law of the deceased and in the materials

             collected by the investigating agency substantial allegations

             are lacking so far as the petitioner is concerned. Accordingly,

             the petitioner preferred an application for discharge after
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submission of charge-sheet and receipt of documents and

papers under Section 207 of the Code of Criminal Procedure.

      Learned trial court considered the said application for

discharge under Section 227 of the Code of Criminal

Procedure and rejected the contentions so advanced on behalf

of the petitioner. Reason assigned by the learned trial court

for rejecting the said application, firstly, was regarding the

issue of the deceased being a psychiatric patient and she was

being taken for treatment which, according to the learned

court, was not acceptable to be tested at the stage of

consideration of discharge. Secondly, the learned trial court

considered the statements recorded under Section 161 of the

Code of Criminal Procedure and was of the opinion that

incriminating   materials    appeared    against    the   accused

persons and there is no scope for prejudging the issue.

      The learned advocate appearing for the petitioner has

relied upon a judgement of the Hon'ble Supreme Court in

Geeta Mehrotra and Another Vs. State of Uttar Pradesh and

Another reported in (2012) 10 Supreme Court Cases 741.

Learned advocate draws the attention of this Court to

paragraph 25 of the said judgement which is set out as

follows :


      "25. However, we deem it appropriate to add by way of

      caution that we may not be misunderstood so as to infer that

      even if there are allegations of overt act indicating the

      complicity of the members of the family named in the FIR in a

      given case, cognizance would be unjustified but what we

      wish to emphasise by highlighting is that, if the FIR as it
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      stands does not disclose specific allegation against the

      accused more so against the co-accused specially in a matter

      arising out of matrimonial bickering, it would be clear abuse

      of the legal and judicial process to mechanically send the

      named accused in the FIR to undergo the trial unless of

      course the FIR discloses specific allegations which would

      persuade the court to take cognizance of the offence alleged

      against the relatives of the main accused who are prima facie

      not found to have indulged in physical and mental torture of

      the complainant wife. It is the well-settled principle laid down

      in cases too numerous to mention, that if the FIR did not

      disclose the commission of an offence, the court would be

      justified in quashing the proceedings preventing the abuse of

      process of law. Simultaneously, the courts are expected to

      adopt a cautious approach in matters of quashing, especially

      in cases of matrimonial disputes whether the FIR in fact

      discloses commission of an offence by the relatives of the

      principal accused or the FIR prima facie discloses a case of

      overimplication by involving the entire family of the accused at

      the instance of the complainant, who is out to settle her scores

      arising out of the teething problem or skirmish of domestic

      bickering while settling down in her new matrimonial

      surrounding."


      The learned advocate for the petitioner has also relied

upon a judgement of the Hon'ble Supreme Court in Mirza

Iqbal alias Golu and Another Vs. State of Uttar Pradesh and

Another reported in 2021 SCC OnLine SC 1251. Learned

advocate draws the attention of this Court to paragraph 12 of

the said judgement which is set out as follows :
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     "12. From    a   perusal   of   the   complaint   filed   by   the

     2nd respondent and the final report filed by the police under

Section 173(2) of Cr.P.C., We are of the view that the

aforesaid judgment fully supports the case of the appellants.

Even in the counter affidavits filed on behalf of respondent

nos. 1 and 2, it is not disputed that the 1st appellant was

working in ICICI Bank at Khalilabad branch, but merely

stated that there was a possibility to reach Gorakhpur by 8

p.m. Though there is an allegation of causing injuries, there

are no other external injuries noticed in the postmortem

certificate, except the single ante-mortem injury i.e. ligature

mark around the neck, and the cause of death is shown as

asphyxia. Having regard to the case of the appellants and the

material placed on record, we are of the considered view that

except vague and bald allegations against the appellants,

there are no specific allegations disclosing the involvement of

the appellants to prosecute them for the offences alleged. In

view of the judgment of this Court in the case of Geeta

Mehrotra1, which squarely applies to the case of the

appellants, we are of the view that it is a fit case to quash the

proceedings."

Ms. Manisha Sharma, learned advocate appearing for

the State has produced the case diary as also report

submitted regarding the progress of the case. Let the said

report dated 21.02.2022 be kept on record.

The report reflects that the next date has been fixed for

evidence on 07.04.2022.

Mr. Lahiri, learned advocate appearing for the opposite

party no.2 resists the contentions advanced on behalf of the

petitioner.

I have considered the materials appearing in the case

diary particularly, the statements recorded under Section 161

of the Code of Criminal Procedure of Anil Kumar, Sunita

Burnwal, Sanjit Burnwal and Swami Dayal including the

statement recorded under Section 164 of the Code of

Criminal Procedure. Presently, the charge-sheet reflects that

there are allegation of mental and physical torture along with

offences under Section 306 of the Indian Penal Code. The

witnesses, which have been relied upon by the prosecution,

have consistently in their statements under Section 161 of

the Code of Criminal Procedure before the investigating officer

stated regarding the participation of the present accused

firstly for demand of further dowry and secondly, there is

allegation of involvement at the time of incident taking place.

At the stage of considering discharge application, the learned

court is to conjointly consider Section 227 of the Code of

Criminal Procedure as well as Section 228 of the Code of

Criminal Procedure. The provision of Section 228 of the Code

of Criminal Procedure incorporates that "the judge is of

opinion that there is ground for presuming that the accused

has committed an offence". At this stage, the primary

consideration of the court is not that whether an accused

would be convicted and the basic issue which would weigh

with the court is whether there is 'some suspicion' or 'grave

suspicion'.

The aforesaid view is also settled by the Hon'ble

Supreme Court in Chitresh Kumar Chopra Vs. State

(Government of NCT of Delhi) reported in (2009) 16 Supreme

Court Cases 605. The truth or falsity of the allegation, at this

stage, cannot be considered and the judgements of the

Hon'ble Supreme Court referred to above by the learned

advocate for the petitioner is restricted to the facts of the said

case which have no manner of application so far as the

facts/material appearing in the present case. As such, no

interference is required at this stage.

Accordingly, the revisional application being CRR 2429

of 2019 is dismissed.

Interim order, if any, is hereby vacated.

All pending connected applications, if any, are

consequently disposed of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

(Tirthankar Ghosh, J.)