Calcutta High Court (Appellete Side)
Suranjan Dasgupta vs State Of West Bengal & Anr on 24 August, 2023
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
PRESENT:
THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY
CRR 856 of 2023
SURANJAN DASGUPTA
VS.
STATE OF WEST BENGAL & ANR.
For the Petitioner : Mr. Milon Mukherjee, Sr. Adv.
Mr. Rana Mukherjee, Adv.
Mr. Suman De, Adv.
For the State : Mr. Madhusudan Sur, Adv.
Mr. Dipankar Paramanick, Adv.
Hearing concluded on : 18th August, 2023
Judgement on : 24th August, 2023
Siddhartha Roy Chowdhury, J.:
1.
This application under Section 401 read with Section 482 of the
Code of Criminal Procedure impeaches the order passed by the
learned Additional Sessions Judge, Fast Track, 1st Court, Bichar
Bhawan, Calcutta rejecting thereby the petition under Section 227 of
the Criminal Procedure Code filed with a prayer for discharge of the
accused petitioner, in connection with Hare Street Police Station Case
No. 677 of 2015 dated 17th November, 2015.
2. Heard Mr. Milon Mukherjee, learned Senior Counsel for the
petitioner; Mr. Madhusudan Sur, learned Counsel for the State.
Despite service of notice the victim did not attend the hearing.
3. Briefly stated, the victim lady, an advocate by profession, on 16th
November, 2015 informed the Officer-In-Charge, Hare Street Police
Station in writing stating, inter alia, that the victim and the accused
person came to know each other on 26th August, 2014. Both of them
are advocate by profession and practicing in the High Court at
Calcutta and gradually with the passage of time their acquaintance
developed into intimacy. The accused person and the victim started
meeting almost on everyday at High Court premises. They used to
share their sad events of life. The accused person depicted himself as
a mutually divorced person, having one son aged about 21 years who
was pursuing graduation from Calcutta St. Xaviers College. The
accused person produced photocopy of document evidencing the
mutual divorce to convince the victim. On 29th June, 2015 the
accused person expressed his mind to marry the victim and thus he
earned confidence of the victim, based on mutual faith upon each
other and indulged in physical union. She was taken to the residence
of the accused person where the victim came across one Ms.
Anuradha, who was introduced as widow cousin sister of the accused
person. The victim narrated how she and the accused person,
together spent their days in different places of Delhi and Bombay. On
2nd October, 2015 the accused person asked the victim over telephone
to clear all on-account post dated cheques issued by the victim lady
against the legal matters assigned to the accused person on behalf of
the law firm, she was associated with. Reminding the accused person
about the professional ethics, the victim requested the accused
person to submit itemized professional bills as against his
professional tips in favour of completion of work. On 10th of October,
2015 the accused and the victim went to Southern Park Café Cofee
Day where the accused person disclosed that his only son wanted his
parents to re-unite and his ex-wife expressing her willingness to
honour the desire of their son started staying in the flat. It was quite
shocking news to the victim lady. On 21st October, 2015, when again
they met at the same place to discuss the future plan and issues
relating to his ex-wife. On 23 of October, 2015 when they met at
Floatel, the accused person informed the victim lady that he was
reeling under huge pressure from his family and friends to get re-
united with his ex-wife and for that he was feeling unwell. She was
requested by the accused person not to call or text him. On 27th of
October, 2015 the accused person rang up and in course of
conversation over telephone one female voice started hurling abusive
language demanding money. The accused person ultimately declared
that he would never marry the victim lady.
4. On the basis of such information Hare Street P.S. Case No.
677/2015 was registered on 17th of November, 2015. Police took up
investigation which culminated into submission of charge sheet under
Sections 376/417/506 of the Indian Penal Code against the accused
person.
5. The victim lady, however, was not happy with the result of the
investigation and by filing an application before the learned Trial
Court, before whom the case was placed for trial following the
provision of Section 209 of the Criminal Procedure Code, the victim
stated that she was forced by the Officer-In-Charge of the concerned
police station to change her written information. The I.O. made her
change the version of the written information at least five times with
certain mala fide intention.
6. The accused person filed an application under Section 227 of the
Code of Criminal Procedure before the leaned Trial Court seeking an
order of discharge. The learned Trial Court, however, refused to
accept the prayer of the accused person by passing the order
impugned.
7. From the attending facts of the case, it is admitted that the victim
lady is an advocate by profession and as disclosed by herself, she was
37 years old when she lodged the complaint. It is not the case of the
victim that she was either forced or put under fear to surrender to the
lust of the accused person, rather she made it clear that it was an act
of free will of two adult persons who indulged into physical union. But
she was swayed by the promise made by the accused person to marry
her, soon after obtaining the certified copy of the decree for divorce.
8. Mr. Mukherjee, learned senior counsel makes me go through the
alleged certified copy of the decree as annexed by the victim to her
protest petition filed on 11th of April 2017. The document shows that
learned Judge granted a decree for judicial separation in a proceeding
under Section 13(B) of the Hindu Marriage Act, on 30th April, 2013
while the date under the signature of learned Judge appears to be
16th April, 2013 at least 14 days prior to the date of decree. This
document fails to inspire confidence of the Court particularly when it
is found that application in a proceeding under Section 13(B) of the
Hindu Marriage Act which is meant for dissolution of marriage on
mutual consent of the parties to the marriage, learned Judge passed
a decree for judicial separation. Even the address of the husband,
Suranjan Dasgupta is found to be different from that of his address
given in the written information by the victim lady.
9. Mr. Sur, learned counsel representing the State supports the order
impugned and submits the materials collected in course of evidence
justifies the order of learned Trial Court-I have the opportunity to go
through the Case Diary and the statement made by the victim lady
before the Metropolitan Magistrate, 19th Court, Calcutta on 30th
November, 2015. Upon perusal of the said document I find a
narrative, altogether different from the statement made by the de
facto complainant in her maiden statement before police which forms
the part of F.I.R. This statement under Section 164 of the Code of
Criminal Procedure unerringly demonstrates the knowledge of the
victim lady about Ms. Anuradha Dasgupta; about the content of
statement as no copy was served upon the accused person. Mr.
Mukherjee expresses his ignorance the copy of the statement of the
victim lady under Section 164 of the Code of Civil Procedure was not
given to the accused person in compliance with the provision of
Section 207 of the Criminal Procedure Code, it cannot be presumed
that prosecution does not want to rely upon the said document to
bring home charges. Other than victim lady there is no witness
having knowledge of the alleged incident. Even the materials collected
in course of investigation do not make out a case of 'rape' as defined
under Section 375 of the Indian Penal Code.
10. The statement under Section 164 of the Criminal Procedure Code
made by the victim lady, if examined in contradistinction with her
statement before the police in writing that set the criminal proceeding
into motion, it strikes at the root of the case of prosecution. It is
alleged that the accused person made the victim surrender to his lust
as he promised to marry the victim lady depicting himself as a
divorced person. But the statement before learned Metropolitan
Magistrate so made by the victim lady shows that on 27th October,
2015 she had the knowledge that Anuradha Dasgupta is the wife of
the accused person.
11. There is an indication in the FIR that the accused person
requested the victim to pay his professional fees and soon thereafter
rough weather invaded into their relationship. Even the wife of
accused person, as alleged by the victim lady, demanded money from
the victim lady due to her husband, while accused person was talking
to the victim lady over phone.
12. Learned trial court as I find from the impugned order took the
pains go through the case diary. It is not clear why the leaned trial
court failed to consider the statement made by the victim lady before
the learned Metropolitan Magistrate under Section 164 of the Code of
Criminal Procedure.
13. As I have pointed out earlier the statement of victim lady before
the learned Metropolitan Magistrate if is considered in
contradistinction with her statement before the police in writing,
which goaded the police to register the FIR, coupled with the
photocopy of so-called decree allegedly passed by the learned Judge
under the signature dated 16th of April, 2013, thereby granting a
decree for judicial separation on 30th April, 2013 in a proceeding
under Section 13(B) of the Hindu Marriage Act, it would lead any man
of ordinary prudence to hold that the victim lady was quite aware of
the fact that the accused person is a married man and not divorced
as depicted by the victim lady in her FIR.
14. This again sprouts the possibility of false implication as well. But
the attending facts rules out the possibility of mis-conception of fact
as laid down under Section 90 of the Indian Penal Code.
15. It is a settled principle of law when two views are possible and one
of the two views tilts in favour of the accused person, the benefit
should be extended to the accused person. The prosecution case as
made out hardly create suspicion and not grave suspicion which
learned trial court, in my humble opinion failed to appreciate, though
in the order impunged learned trial court relied upon the judgment of
Hon'ble Apex Court in Sajjan Kumar-vs-Central Bureau of
Investigation) reported in (2010) 9 SCC 368 wherein Hon'ble Apex
Court in no uncertain terms held:-
"(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage, he is not to see whether the trial will end in conviction or
acquittal."
16. In the aforesaid facts and circumstances of the case, I am of the
view that the order impugned suffers from serious infirmity.
17. Learned Trial Court committed jurisdictional error in passing the
order impugned.
18. It is rather a fit case to invoke of provision of Section 227 of the
Code of Criminal Procedure and to discharge the accused person,
which I accordingly do.
19. The accused person be discharged from the bail bond.
20. Let a copy of this order be sent down to the learned trial court for
information and necessary action.
21. Urgent photostat certified copy of this order be applied therefor, be
given to the parties upon compliance of requisite number of
formalities.
(SIDDHARTHA ROY CHOWDHURY, J.)
