Calcutta High Court (Appellete Side)
Kaberi Dey Alias Kaberi De vs The State Of West Bengal on 23 November, 2022
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Rai Chattopadhyay
C.R.R. 1395 of 2016
With
CRAN 9 of 2019 (Old No: CRAN 3798 of 2019)
With
CRAN 11 of 2021
Kaberi Dey alias Kaberi De
Versus
The State of West Bengal
For the petitioner : Mr. Tarique Quasimuddin,
Mr. Sanchita Chaudhuri,
For the State : Mr. Swapan Banerjee,
Ms. Purnima Ghosh.
Hearing concluded on : 09/11/2022
Judgment on: 23/11/2022
Rai Chattopadhyay, J. :
1.
In this revision the petitioner, being aggrieved of the criminal proceedings
initiated against her, challenged the same and had prayed for quashing of
the same.
2. The proceedings were initiated with lodging of FIR being Hare Street
Police Station Case No.516 of 2011 dated 28.07.2011 under Sections
341/353/506/34 of the IPC and Section 3 of The Scheduled Castes and
The Scheduled Tribes (Prevention of Atrocities) Act, 1989. The
corresponding G.R. Case No.2655 of 2011, pending in the court of the
Metropolitan Magistrate, 5th Court at Calcutta.
3. Fact leading to filing of the FIR and necessary for adjudication of this
revision may be narrated, as below.
4. Complainant's initial allegations are against employees of the department
namely, Mr. Barun Chakraborty, Mr.Bipradas Chatterjee, Mr. Sumit
Bhadra and Mr. Pradip Goswami. Allegedly while protesting certain
decision of the authorities these employees abuse the complainant,
particularly regarding and mentioning his status as a member of
schedule tribe community by hurling offensive and belittling language.
Consequently, the complainant sought redressal before the appropriate
office as to his grievance against Sri Barun Chakraborty and according to
the direction of the higher authority an in-house inquiry was conducted.
The complainant also made general diary before the Hare Street Police
Station concerning the incident. The in-house inquiry however did not
reach to its finality.
5. Subsequently and as a continuing offence, as alleged, the present
petitioner along with other employees, while attending a conciliation
meeting in the office of the complainant on 22 nd July, 2011 at 2.30 p.m.,
have turned hostile. Instead of a peaceful dialogue they have under taken
a violent attitude, threatened and intimidated the complainant. Allegedly
he was pushed resulting into his fall and also he was addressed abusively
and disdainfully and slanderously as a member of schedule caste
community.
6. All these facts have been informed by dint of the said FIR which was
registered as Hare Street Police Station Case No. 516 of 2011 dated
28.07.2011 under Sections 341/353/506/34 of the IPC and Section 3 of
The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
7. Petitioner has urged that the complaint as above has only frivolously and
maliciously been lodged against her and thus no proceedings on the basis
of the same could have been lawfully initiated against her.
8. Notice has been duly served upon all the opposite parties. However, no
one is representing of the opposite party no.2 in this case. It is learnt that
the complainant himself has now retired from service. The department is
not found to be represented in court at the time of hearing.
9. Ld. Advocate Mr. Swapan Banerjee along with Ms. Purnima Ghosh appear
for the state and submits that according to the materials collected during
investigation as available in CD, prima facie case is apparent on record
so far as the present petitioner is concerned. For the rest they have left
the matter at the discretion of the court. The CD is submitted in the
court.
10. The petitioner has been alleged of the offence under Section 341 IPC
which is providing for punishment for wrongful restraint, Section 353
IPC which makes provision for an offence of assault or criminal force to
deter public servant from discharge of his duty and Section 506 which
provides for punishment for criminal intimidation. Petitioner has also
been alleged of an offence under Section 3 of The Scheduled Castes and
The Scheduled Tribes (Prevention of Atrocities) Act, 1989, which provides
for the atrocities and punishment for offence of atrocities against the
person belonging to scheduled caste or scheduled tribe, committed by a
person not being of scheduled caste or scheduled tribe community.
11. Ld. Advocate for the petitioner has submitted by referring to the FIR that
the FIR is divided into three parts and his client's name appears only in
one part of the same. According to him, the allegations made against the
petitioner to be a part of group to enter the office of the complainant,
agitating there, exercising force, intimidation and threat against the
complainant and also using abusive, slanderous and belittling language
indicating about complainant's caste and demeaning his prestige within
public view - shall appear to be absent from the FIR itself. It is
submitted that the FIR, so far as the present petitioner is concerned, is
only vague and non-specific. According to him, the complainant has
never specified a role of the petitioner in the entire incident which could
have been implicated her being the prime facie material available against
her. During the course of argument Ld. Advocate has referred to the
relevant provision of The Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Act, 1989, to submit that the ingredients of
offence as would have been satisfied the requirement of the concerned
provisions of law to be applicable against his client, are not available
against her.
12. Furthermore, it has been submitted that to attract provisions under
Section 353 IPC, the complainant should have been in the process of
exercising his duty as a public servant when the alleged incident is said
to have happened, which is not a fact in the present case.
On the facts and circumstances as above he has prayed for
quashing of the proceeding initiated against the petitioner in the above
police case.
13. Heard submissions of the parties perusal material placed before the
court.
14. In view of the nature of allegations made against the petitioner, so far as
section 3 of The Scheduled Castes and The Scheduled Tribes (Prevention
of Atrocities) Act, 1989 is concerned, the same appears to fall within the
perview of Section 3(1)(r) and (s) of the said Act. The provisions may be
narrated down as follows :
3.(1)(r) intentionally insults or intimidates with intent to
humiliate a member of a Scheduled Caste or a Scheduled Tribe
in any place within public view;
3.(1)(s) abuses any member of a Scheduled Caste or a Scheduled
Tribe by caste name in any place within public view;
15. Ingredients of the said offence would be the act of insult or intimidation
by the accused person, such act of insult or intimidation would be with
the intent to humiliate and would be within public view and abuses by
the accused person by caste name of the victim, in any place within
public view.
16. Therefore FIR, which is the report of the alleged incident, by dint of
which the criminal justice system is set in motion, must express, at least
prima facie, the existence of such ingredients of offence against the
accused person.
This proposition has also been upheld by the Hon'ble Supreme
Court in its decision reported in 1992 Supp (1) SCC 335 (also AIR 1992
SC 604) (State of Haryana vs. Bhajan Lal)
17. In this case it is found that the name of the petitioner has been
mentioned in the FIR in a bunch, along with the other allegedly erring
employees, to have wrongfully entered into the office of the complainant,
caused violence, used force and threatened to drop all the charges
against Mr. Barun Chakraborty, another employee of the department,
physically hurt him and also abused him with filthy language including
comments relating to his caste. No doubt the FIR is non-specific
regarding the exact comment which was made and by whom it was
made. The complainant and the witnesses have merely made statement
that the accused persons including the present petitioner have subjected
the complainant with offending comment as to his cast.
18. When the court has consulted the CD, it is found that the witness had
though stated about involvement of all the FIR named accused persons in
commission of the alleged crime but has not specified role of any of them
in commission of the offence, particularly that alleged under The
Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act,
1989. Allegation of their having common intention to perpetrate the
offence as alleged is also found to be unsubstituted by any cogent
material.
19. One may profitably resort to a judgment of the Hon'ble Supreme Court
reported in (2011) 11 Supreme Court Cases 259 [Asmathunnisa vs.
State of Andhra Pradesh], wherein the Hon'ble Court has been pleased to
direct for quashing of the criminal proceedings initiated against the
accused person on the ground of non availability of any material showing
utterance of offending words by the petitioner. Mere statement that the
petitioner uttered offending words, was found insufficient to proceed
against her. The ratio squarily applies in this case.
20. In the same judgment, the Court has further been pleased to hold that in
case there is no material to justify common intention of the petitioner
with the other accused persons, application of section 34 IPC is also
vitiable.
21. Pursuant to the judicial pronouncement as discussed above and the ratio
being applied to the factual background in this case, this court should
hold that the prima facie material as regards the alleged offence
particularly that of The Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Act, 1989, is not available in this case against
the present petitioner, much less of any strong prima facie material to
proceed against her in a criminal trial. Therefore, in my considered
opinion the proceedings pursuant to Hare Street Police Station Case No.
516 of 2011 dated 28.07.2011 under Sections 341/353/506/34 of the
IPC and Section 3 of The Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Act, 1989, against the petitioner, would only be
an abuse of the process of court, if allowed to be taken forward and
should not be allowed to be proceeded with. That same is liable to be
quashed.
22. On the discussion as above the instant revision case being CRR 1395 of
2016 is allowed. The proceedings in connection with Hare Street Police
Station Case No. 516 of 2011 dated 28.07.2011 connected GR case G.R.
Case No.2655 of 2011 under Sections 341/353/506/34 of the IPC and
Section 3 of The Scheduled Castes and The Scheduled Tribes (Prevention
of Atrocities) Act, 1989, is hear by quashed and set aside.
23. Connected applications being CRAN 9 of 2019 (Old No: CRAN 3798 of
2019) with CRAN 11 of 2021 are disposed of. Case Diary be returned.
24. Urgent certified website copy of this judgment, if applied for, be supplied
to the parties upon usual undertaking.
( Rai Chattopadhyay, J. )
