Bithika Chakraborty & Ors vs Kamal Kanti Biswas
2023 Latest Caselaw 2750 Cal

                     IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL REVISIONAL JURISDICTION
                             (APPELLATE SIDE)


     Present:
     The Hon'ble Justice Rai Chattopadhyay


                           C.R.R No. 3857 of 2016
                                    With
                 CRAN 9 of 2019 (Old No: CRAN 5041 of 2019)


                           Bithika Chakraborty & Ors.
                                      Vs.
                               Kamal Kanti Biswas


     For the Petitioners                           : Mr. Sourav Chatterjee,
                                                   : Mr. Satadru Lahiri,
                                                  : Mr. Safdar Azam,



     For the Respondent                           : Mr. Debasis Kar,
                                                  : Mr. Arka Tilak Bhadra.


     Hearing concluded on: 13/04/2023

     Judgment on: 20/04/2023


     Rai Chattopadhyay, J.

1. The order dated 3.9.2016 passed by the Judicial Magistrate, 4th

court at Barrackpore, North 24 Parganas, in Complaint Case No. 19 of

2007, is under challenge in this revision, filed by the petitioner, under

section 482 of the CrPC. The present petitioner, that is, the accused

person in the said complaint case, filed in the trial Court, his prayer

for discharge, vide his application dated 22. 3. 2016. The same was

disposed of by the trial Court vide the impugned order dated 3.9.2016

for the reason inter alia that the materials on evidence as well as that

on record had disclosed sufficiently to proceed against the present

petitioner/accused person. Thus the petitioner was aggrieved and has

challenged the said impugned order in this revision.

2. In this case, while adjudicating to decide whether the

petitioner would have been entitled under the law, for an order of

discharge, this Court would delve upon the points, firstly, as to

whether the previous order of the Coordinate Bench rejecting

petitioner's prayer for quashing of the criminal proceeding against

him, should act as a debarring factor to go into the prayer of the

petitioner in this case, which is virtually the same as that in his

previous case. Then, whether there has been so compelling change in

circumstances, after the previous order of the Coordinate Bench

rejecting petitioner's prayer for quashing of the criminal proceeding, to

be taken into consideration, to assess his prayer in this case, which is

virtually similar to that in the previous case. The Court will see if the

nonproduction of any vital document/information, said to have

prompted the Coordinate Bench previously, to consider petitioner's

case, not in its proper perspective, and if the same should again be

considered in this case, to weigh if the petitioner would have been

eligible for an order of discharge as the evidence and materials would

not have made out a case against him. The court shall consider, if

petitioner's case is comprised with the questions of facts only, legible

to be decided in a trial.

3. Since this case is germane to an order of the trial Court

under section 245 of the CrPC, at the threshold the said provision

may be extracted:

"245.When accused shall be discharged.-

(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."

4. Therefore, the law is that the Magistrate shall apply his

mind and consider the evidence of the prosecution. The Magistrate

shall also give the prosecution/complainant, an opportunity of being

heard. He shall apply mind to all the materials as above and shall

come to a finding that no case against the accused has been made out

which, if unrebutted, would warrent his conviction. Law has further

mandated that the reasons so formulated by him to support his

decision should be recorded in writing. Only then an order of

discharge passed by him can be stated to be in terms of and

compliance with the statutory provision and not otherwise.

5. At this stage let the chronology of facts be stated in a

nutshell. The petitioners owned and possessed the property, some

portion of which, measuring 3 Cottahas 13 Chittaks 38 sqft, in

MoujaMulajore, R.S Dag No.790, Khatian No.1607, J.L.No. 18, Touji

No.655, was purchased by the complainant/opposite party. Date of

execution of the sale deed is 26.12.2005. Classification of the said

land is at the core of the dispute between the parties. The complainant

has alleged that he has been deceived by the petitioners, who

misrepresented intentionally and induced him about the classification

of the said property to be "danga" (land), whereas the property was

originally classified as "doba" (water body). He filed Complaint Case

No. 19/2007, in the court of ACJM, Barrackpore on 2.7.2007 against

the present petitioners under section 420 IPC. Thereafter, the

petitioners have moved this Court vide C.R.R. 2003 of 2012, with their

prayer for quashing of the criminal proceeding so started against

them. Coordinate Bench of this Hon'ble Court, vide order dated

26.11.2013, rejected such prayer of the petitioners for the reason inter

alia that prima facie there were allegations that the property was sold

by misrepresenting its description. Petitioners thereafter espoused

their prayer in the trial Court under section 245 of the CrPC, for

discharge. The same was also turned down by the trial Court by dint

of the impugned order dated 3.9.2016.

6. Mr. Chatterjee, who represents the petitioner, has first

mentioned in his arguments that while delivering the order as

impugned in this case, the Magistrate has not taken into

consideration and applied his mind to all the materials available with

him, which, he says that the Magistrate was duty bound under the

law, to do. As for instance, he has relied on a report of police,

submitted in the case, dated 10.6.2007. It is noted, as indicated, that

the report speaks of the finding of an enquiry pursuant to the court's

order, that the property concerned is a "doba" (water body) and the

complainant being a local resident, had knowledge of that and

purchased the same as it is. The report further indicates that after

execution of the deed, possession of the property was duly handed

over to the complainant/purchaser by the present petitioners, that is,

the vendors. According to the said report, the complainant has been in

possession of the concerned property since after purchase and that

his allegation against the present petitioners of not handing him over

the possession of the property, is only baseless. The said report has

further revealed that as the complainant made endeavours to fill up

the water body, he was restrained by the local residents in his illegal

pursuits touching the ecological balance of the locality. It is stated

that the water body was visibly existent within knowledge of everybody

at the locality and the complainant, being a local resident could not

deny its existence. Mr Chatterjee says that the report as above

contains very vital piece of information relating to the case and

bearing relevance and effect to its root, which the Magistrate has not

taken into consideration while adjudicating his client's prayer under

section 245 CrPC. He says that such inaction of the trial Court has in

one hand prejudiced the interests of his clients and in the other hand

has prompted the Court to arrive at an erroneous finding in the

impugned order, rejecting his client's prayer for discharge thereby,

which cannot be said to be based on available materials, as required

under law.

7. The other point Mr. Chatterjee has argued for the

petitioners is that, the previous order of the Coordinate Bench dated

26.11.2013, rejecting petitioner's prayer for quashing of the

proceeding that is the instant one, cannot act as res judicata with

respect to the present case, as there has been subsequent

development in the case by way of an application being filed by the

petitioners in the trial Court under section 245 CrPC, which has been

rejected by the trial Court. He relies on the judgment of the Hon'ble

Supreme Court reported in (2008) 8 SCC 673 [State represented by

DSP, SB CID, Chennai vs. K.V. Rajendran and Others], where the

Hon'ble Supreme Court has been pleased to hold that filing of a fresh

petition under section 482 CRPC is permissible in view of any

subsequent events that had taken place after the final order disposing

of the earlier criminal revision. On this, another judgment of the said

Court has been relied on, that is reported in (2009) 7 SCC 495

[Devendra vs State of Uttar Pradesh and Another], where the Hon'ble

Court finds and lays down that the principle of res judicata has no

application in a criminal proceeding. "The principles of res judicata as

adumbrated in section 11 of the Code of Civil Procedure or the general

principles thereof will have no manner of application in a proceeding

under section 482 of the CrPC" - the Hon'ble Court finds. Therefore,

he says that rejection of petitioner's prayer by this Court vide order

dated 26.11.2013 shall have no bearing as regards the maintainability

of the present case under section 482 of the CrPC, by the petitioners.

8. Mr. Chatterjee has mentioned about the previous civil suit

filed by the complainant in a competent court, where the complainant

has prayed for a decree of declaration to change the classification of

the concerned property "as 'Doba' instead of 'Danga". He says that

since the complainant has mentioned about this civil suit in his

evidence before the Magistrate, the same and its implication was

required due consideration of the trial Court while disposing of

petitioner's prayer under section 245 of the CrPC. He further says that

complainant's prayer in the said suit, would naturally imply that his

allegations against the petitioners regarding false representation of the

classification of land sold to him and that of deception are only

fabricated and concocted.

9. He has further relied on a judgment of the Apex Court

reported in (2019) 18 SCC 69 [Harish Dahiya @ Harish and Another vs

State of Punjab and Others] where the Court has held as follows :

"4. Be that as it may, we find that the order dated 26-10-2018 refusing to discharge the appellants suffers from abdication of jurisdiction. Merely because an earlier application to quash the entire prosecution under Section 482 CrPC may have been dismissed, the Additional Sessions Judge could not decline to consider the application for discharge on that ground. The grounds for quashing a criminal proceeding and the reasons for allowing or disallowing an application for discharge preferred by the accused are completely different. The grounds falling for consideration in the two jurisdictions are completely different."

10. He submits that thus the law is settled well that the order

of the High Court under section 482 of the CRPC should not bear any

relevance at the stage of consideration of prayer for discharge by the

accused person, in the trial Court.

11. The petitioners have prayed for setting aside the impugned

order dated 3.9.2016 of the trial Court and passing necessary order in

this case for the ends of justice.

12. The petitioner's contentions and prayer is vehemently

objected to, on behalf of the opposite party/complainant. Mr. Debasis

Kar appearing for the opposite party/ complainant would first submit

that at the stage of quashing / discharge and while exercising powers

under 482 of the CRPC, the High Court shall not conduct a 'mini trial'

but only look for the prima facie materials against the accused

persons to be available. On this he has relied on a recent unreported

judgment of the Hon'ble Apex Court, dated 10.4.2023 [ Criminal

Appeals No. 1025-1026 of 2023 CBI vs Aryan Singh], where the Bench

headed by the Hon'ble Justice M.R.Shah has been pleased to hold

that :

"4. Having gone through the impugned common judgment and order passed by the High Court quashing the criminal proceedings and discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings in exercise of the limited powers under Section 482 Cr.P.C. and/or in exercise of the powers under Article 226 of the Constitution of India.

4.1 From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of Criminal Appeal Nos. 1025-1026 of 2023 discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not

proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".

13. Mr. Kar has also relied on several other judgments, which

are mentioned as herein below:-

(i) 2022 Cri.L.R. (SC) 1296 (State of Uttar Pradesh & Anr. vs. Akhil

Sharda & ors.

Judgment of the Hon'ble Apex Court, dated 05.05.2022 in

(ii) Criminal Appeal No.741 of 2022 (Jagmohan Singh vs. Vimlesh

Kumar & Ors.)

"8. While exercising jurisdiction under Section 482 of the Cr.P.C., the High Court should not ordinarily embark upon an enquiry into whether there is reliable evidence or not. The jurisdiction has to be exercised sparingly, carefully and with caution only when such exercise is justified by the specific provisions of Section 482 Cr.P.C. itself.

9. The criminal proceedings can be said to be in abuse of the process of Court, to warrant intervention under Section 482 Cr.P.C., when the allegations in the FIR do not at all disclose any offence or there are materials on record from which the Court can reasonably arrive at a finding that the proceedings are in abuse of the process of the Court."

It is submitted that, the findings of the Hon'ble Coordinate

Bench being in place, vide order dated 3.9.2016, the situation

that the FIR has not disclosed any offence in this case is only

farfetched. In a situation otherwise, ratio of this judgment

squarely applies in this case.

(iii) (2021) 8 SCC 583 (Saranya vs. Bharathi & Anr.) This case has been

relied on to emphasize the proposition settled therein, i.e,:-

"Things High Court must keep in mind while exercising jurisdiction under Section 482 Cr.P.C. at stage of framing of charge - High Court is not required to appreciate the evidence to see whether person charged is likely to be convicted or not."

Another judgment, on the similar point has been relied on, that is,

(iv) (2021) 9 SCC 35 (Kaptan Singh vs. The State of Uttar Pradesh &

Ors).

The next point of argument, on behalf of the opposite party

would be that, in this case, disputed questions of facts are

involved relating to the issues of classification of the concerned

land, alleged suppression and misrepresentation of the

material fact at the time of transaction of property, claim in

counter to such allegations like the vendee/opposite party were

made aware about the land classification etc. In view of

involvement of several questions of fact involved in this case,

Mr. Kar submits, that those are only to be determined by the

trial Court, on evidence and this would not be an appropriate

stage to embark upon those questions of fact. On this he has

relied on a judgment of the Supreme Court reported in

(v) 2014 Cr.L.R. (SC) 186 (Ashfaq Ahmed Quereshi & Anr. vs.

Namrata Chopra & Ors.), where the Hon'be Court has held that

where disputed questions of fact are involved, quashing of the

proceedings under Section 482 Cr.P.C, is not possible.

It is submitted, that after this Court's order dated 3.9.2016,

there was sufficient reason for the Magistrate to pass an order

for framing of charge in this case. The reason being that for

framing of charge, the Court is required to form an opinion that

there is ground for presuming that accused has committed the

offence. He says that the law, settled as above, would render

the impugned order as flawless. On this he has relied on a

judgment reported in

(vi) 2007 (sup) (SC) 1873 (Lalu Prasad @ Lalu Prasad Yadav vs. State

of Bihar Through CBI (AHD) Patna).

By referring to the judgment reported in

(vii) 2009 AIR (SC) 2646 (The State of Andhra Pradesh vs. Vangaveeti

Nagaiah), it has been mentioned that allegations of mala fide, as has

been lodged in this case by the petitioner against the opposite

party/complainant shall have no bearing as regards quashing of a

proceeding, and that meticulous scrutiny of evidence would not be a

requirement at this stage.

(viii) 2018 (2) Cal Cri LR 198 (Vipul Raj vs. The Central Bureau of

Investigation) is the other Coordinate Bench judgment relied on by the

opposite party to emphasize the point that :- If it appears to the Court

prima facie that the allegation is more or less acceptable and it

constitutes an offence, then question exercising jurisdiction under

section 482 of Cr.P.C, 1973 would not lie and if the High Court

becomes fully satisfied that the material produced or relied by the

accused leads to a question that there is defence based on sound

reasons only then High Court shall interfere.

14. The petitioner has primarily relied on the grounds that

consideration of the available materials and evidence before it, was

imperative for the Magistrate while adjudicating petitioner's prayer

under Section 245 (1) Cr.P.C. That the Magistrate failed to comply

with such bounden statutory duty, in so far as the police report dated

10.06.2007 has not been considered by him, while delivering the

impugned order. Petitioner's other point is that an order of this

Court, passed under Section 482 Cr.P.C declining his prayer for

quashing of the proceedings, does not overshadow petitioner's right

under Section 245 Cr.P.C, nor it takes away any of the statutory

duties cast upon the Magistrate as envisaged under the said

provision, while disposing of petitioner's prayer under Section 245

Cr.P.C. The judgments relied on by the opposite party are

controverted on the point that, those are the compendium of

propositions, which are settled as regards applicability of discretionary

power of the Court, under Section 482 of the Cr.P.C, for quashing of

the proceedings. Those are said to be not applicable in this case. So

far as petitioner's point regarding maintainability of this case, that res

judicata would not be applicable in a criminal proceeding and

judgments of Devendra (supra) , K.V.Rajendran (supra) and Harish

Dahiya (supra) are concerned, there has been no serious challenge to

the same, by the opposite party. The opposite party practically relies

on the order dated 3.9.2016 of the Coordinate Bench, to submit that

there are prima facie material against the accused available on record

and the case involves disputed questions of fact to be determined in

trial. The findings of the Court, being as above, it is argued that, the

Magistrate has done no wrong in the impugned order, by directing

framing of charge against the petitioner, in the case.

15. Chapter XIX of the Cr.P.C where provisions for trial of

warrant cases by Magistrate, has been laid down, one would find

under heading 'B,- Cases instituted other than police report', Section

245, as extracted above, to provide as to when the accused shall be

discharged.

16. The law as to when an accused shall be discharged by the

Court is enumerated in Section 245 (1) Cr.P.C, 1973, that the

Magistrate shall have to form an opinion that no case against the

accused has been made out and he shall have to put down such

reasons on record, while ordering for discharge of him. Such opinion

of the Magistrate shall be based on all the evidence as referred to in

Section 244 of the said Code.

17. Therefore it is required that Section 244 of the Cr.P.C, be

also looked into, to see what kind of evidence has been enumerated

therein, for the Magistrate to take into consideration while delivering

an order under Section 245 (1).

"244. Evidence for prosecution.

(1) When, in any warrant- case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."

18. Therefore Section 244 Cr.P.C has mandated the Magistrate

to take all such evidence as may be produced in support of the

prosecution. This provision has not however fettered the discretionary

power of the Magistrate to take into consideration the materials

produced before it, excepting otherwise than by prosecution but

pursuant to the order of the Court itself. The purpose is to find out

any element of falsehood into the complaint against the accused

person or not. This is a discretionary power to govern the Magistrate,

when he considers if the accused is to be discharged. The Magistrate

for the sake of fairness shall embark on to the available materials

before it to formulate opinion as to the existence of the case being

made out in the complaint against the accused person and put the

same in writing on record, in his order passed under Section 245 (1)

Cr.P.C. Therefore while exercising discretion and power under Section

245 (1) of the Cr.P.C. the Magistrate shall have to apply mind as to the

evidence on record to a greater extent and depth than just only to find

any prima facie materials available on the face of the complaint to

make out a case against the accused. Unless it is shown that the

order by the Magistrate under Section 245 (1) of the Code is passed in

confirmation with the provisions under Section 244 of the Code, such

an order can be said to be improper, being not in compliance with the

statutory provision.

19. In this case, in the impugned order dated 03.09.2016, the

Court has recorded perusal and consideration of the materials on

evidence as well as on record, to find sufficient of those to proceed

against the present petitioner. This order of the Magistrate is

definitely devoid of any reason as to why, if any document has been

left outside the purview of his consideration, while deciding a prayer of

the petitioner under Section 245 (1) of the Code. In my humble

opinion the 'reasons to be recorded' as envisaged under Section 245

(1) of the said Code, clearly encompass specific reasons for not taking

into consideration any evidence/document, which was there on

record before the Magistrate at the time of considering petitioner's

prayer under Section 245 (1) of the Code. The report of police dated

10.06.2007 which has been filed pursuant to the Court's order, is one

of such material on record, as also the pending civil suit in connection

with the concerned property which the witness speaks of, which are

apparent to have not been considered by the Magistrate while

delivering the impugned order and for which he has not recorded any

reasons what so ever in the impugned order.

20. This is a gross irregularity in the impugned order for which

the present case is found to be a fit one to be remanded back to the

Magistrate for fresh consideration of petitioner's prayer under Section

245 (1) of the Code. Needless to say that the Magistrate shall comply

with the mandates of law and shall pass an expeditious order as

regards the same. Therefore the impugned order dated 13.09.2007

passed by Ld. Judicial Magistrate, 1st Class, 4th Court, Barrackpore, is

set aside.

21. This revision is disposed of with the direction that the case

be remanded back to the Ld. Judicial Magistrate, 1st Class, 4th Court,

Barrackpore, North 24 Parganas, for fresh consideration of petitioner's

prayer under Section 245 (1) Cr.P.C and disposal of the same in

accordance with law and with adequate promptitude.

22. Connected application being CRAN 9 of 2019 (Old No:

CRAN 5041 of 2019) is disposed of.

23. Urgent photostat certified copy of this judgment, if applied

for, be supplied to the parties upon compliance with all requisite

formalities.

(Rai Chattopadhyay, J.)