Abdul Halim Sardar & Anr vs State Of West Bengal & Anr
2023 Latest Caselaw 9 Cal

                                   1


              IN THE HIGH COURT AT CALCUTTA
                Criminal Appellate Jurisdiction
                        Appellate Side

Present: -       Hon'ble Mr. Justice Subhendu Samanta.
                          CRR 195 of 2018
                                With
                           CRAN 1 of 2021
                     Abdul Halim Sardar & Anr.
                                 Vs.
                     State of West Bengal & Anr.

     For the petitioners           :     Mr. Jayanta Narayan Chatterjee,
                                         Mr. Apalak Basu,
                                         Mr. Nazir Ahmed,
                                         Ms. S. Naskar,
                                         Ms. Jayashree Patra,
                                         Ms. Ritushree Benerjee,
                                         Ms. Dipanwita Das,
     For the State     :                 Mr. Saswata Gopal Mukherjee,
                                                                 P.P.,
                                         Mr. Arijit Ganguly,
                                         Ms. Manisha Sharma

     For the Opposite Party        :     Swapan Kumar Mallick,
                                         Ms. Priyanka Dutta,
                                         Ms. Sudeshna Das,

     Judgment on                   :     02-01 -2023

   Subhendu Samanta, J.

This is an application under Section 482 of read with 397/401 of

the Code of Criminal Procedure for quashing a proceedings in connection

with G.R. no.1267 of 2017 arising out of Domjur P.S. Case No.171 of

2017 dated 3.3.2017 under Section 420/406/381/409/120B of the

Indian Penal Code pending before the Learned Chief Judicial Magistrate,

Howrah(Sadar).

The brief fact of the case is that on the basis of a written complaint

of one Rohit Chowdhury, Director of T.C. Motors Private Limited Domjur

P.S. Case No.171 of 2017 was initiated against one Surajit Bej. The

statement of the complaint in a nutshell, that Surajit Bej is one of the

employees of the T.C. Motors Private Limited in the post of Insurance in-

charge, he had fraudulently siphoned of a sum of Rs.25,00,000/- and

mis-appropriated the said amount from the period of March 2016 till the

date of complaint. It was alleged in the complaint that Surajit Bej was

entrusted by the company to collect premium amount from the

customers for the company and deposit the same either to the Insurance

Company or to the complainant company. He collected the premium

amount from different customers and dishonestly mis-appropriated the

funds for personal used without being it deposited either to the

Insurance Company or the complainant company.

During the course of investigation the accused Surajit Bej was

arrested and during his police remand he made a confessional statement

that he has committed the crime in conspiracy with the present

petitioner nos.1 and 2. After conclusion of investigation the charge-sheet

has been submitted against the Surajit Bej and the present petitioners

showing the petitioners to be absconder.

It is the fact of the petitioners that the present petitioners were not

at all involved in the alleged offence. Actually, the petitioners had

informed the de facto complainant regarding mal-practice of Surajit Bej

for which the de facto complainant has lodged the complaint. The

principle accused Surajit Bej after having knowledge of such fact

committed the false statement before the police alleging the present

petitioners to be involved in the offence. Hence, the petitioners are before

this Court for quashing the proceeding.

Learned advocate for the petitioners submitted before this Court

that the police has submitted charge-sheet after conclusion of the

investigation against the Surajit Bej and the present petitioners. The

allegation of syphoning money by the present petitioners cannot be

proved by the prosecution as the police has failed to collect any material

regarding involvement of the present petitioners in the alleged offence.

During the course of investigation police has conducted search and

seizure but nothing has been seized from the possession of the present

petitioners to substantiate the alleged offence against them.

He further pointed out that only on the basis of confessional

statement made by the co-accused the present petitioners were charged.

By virtue of order of Hon'ble Supreme Court in Suresh Budharmal

Kalani Vs. State of Maharashtra reported in (1998)7SCC 337,

framing of charge against accused persons only on the basis of

confessional statement of co-accused is not proper.

Learned advocate appearing on behalf of the opposite party raised

strong objection and submitted before this Court that the charge has

been submitted against the present petitioners by showing the petitioners

to be absconder. The warrant of arrest was issued against them. They

did not appear before the police authority or before the trial court but

prefer this instant revision to avoid the process of the Court. They

adopted a mala fide practice by filing this instant quashing application,

they try to avoid the direction of the learned Court below. He further

argued that at this juncture sufficient materials are there in the Case

Diary. The materials lying in the case diary shall be taken to be true at

this juncture. This is not fit case to be quashed. He further argued that

the High Court should normally refrain from exercising the extraordinary

jurisdiction under Section 482 of the Code of Criminal Procedure for

quashing a proceeding at this stage. The prima facie case against the

present petitioners has been sufficiently made out by filing charge-sheet

against them. Holding mini trial of the High Court is not permissible

before the trial at the Court of Magistrate. He further argued that no

extraordinary facts and circumstances is raised by the petitioners in this

case for their entertainment by this Court. He prayed for rejection of the

instant revisional application. In support of his contention learned

advocate for the opposite party has cited some order passed by this High

Court in different proceeding. He also cited a decision of Hon'ble

Supreme Court reported in (2022) 2 SCC(Cri) 787 to show the term of

"abuse of process of Court" and its true meaning as defined under

Section 482 of the Code of Criminal Procedure. He also cited a decision

reported in (2009) 3 SCC(Cri) 996 regarding the duty of a Court at the

time of framing of charge and prima facie probative value of materials

submitted in the charge-sheet. On the same principle he also cited

another decision reported in (2007) 2 SCC(Cri) 514.

Learned advocate for the petitioner also cited some decision to

show the scope of High Court and its power to quash criminal proceeding

in exercising its power under Article 226 and 227 or Section 482 of the

Code of Criminal Procedure. He also cited a decision reported in (2016)

16 SCC 30 to show that there is no ban to exercise of inherent power of

High Court to prevent the abuse of the process of the Court. In any other

extraordinary situation which the High Court can think that its

extraordinary inherent power may be unaffected.

Heard the learned advocates perused the judgment advanced by

the learned advocates of either side.

Learned advocate on behalf of the State raised an objection and

submitted before this Court that the investigation has already been

concluded. There are sufficient materials to show that the present

petitioners are very well involved in the alleged offence. He submitted

that the petitioners may approach the learned Magistrate with a prayer

for discharge but at this juncture the prayer for quash cannot be

entertained. He submitted the case diary. Perused the case diary.

Let it be considered whether this High Court can exercise its

inherent power to quash the proceeding against the present petitioners.

On perusing the case diary, it appears that during the course of

investigation police made search at the different places through nothing

has been seized from the possession of the present petitioners. It further

appears that the petitioners were not at all available during the entire

course of investigation. So the charge sheet has been submitted citing the

present petitioners to be absconded. On thorough reading of the case

diary it appears that while the prime accused Surajit Bej was in police

remand. He made a confessional statement that he transferred the

amount to the petitioner. He also named two subordinate employees by

the help of whom the said amount was transferred to the petitioners.

The said two subordinate employees were not examined by the I.O. They

also stated the name of the petitioners. Considering the same, there are

prima facie materials against the petitioners to submit charge sheet

against them.

Let me consider the relevant law of confession of a co-accused.

Section 30 of the Evidence Act enumerated as follows:

"Section 30. Consideration of proved confession affecting person

making it and others jointly under trial for same offence.--- When more

persons than one are being tried jointly for the same offence, and a

confession made by one such persons affecting himself and some other of

such persons is proved, the Court may take into consideration such

confession as against such other person as well as against the person who

makes such confession."

Thus, under Section 30 of the evidence Act 1872, a confession of

an accused is relevant and admissible against a co-accused if both are

jointly facing trial for the same offence. In this present case, petitioners

and the accused Surajit Bej are facing the charge of the same case. So,

the confessional statement made by the Surajit Bej has its value in the

eye of law. The cited decision of Suresh Budharmal Kalani(supra)

Hon'ble Supreme Court is of a view that where an accused has been

discharged from the case and is not facing the trial with the co-accused;

his confession cannot be used against other co-accused. So, this cited

case is not at all applicable in the facts and circumstances of the case.

After considering the materials on record and after considering the

case diary, it appears that there are sufficient materials for proceeding

against the present petitioners. At this juncture, the criminal proceeding

pending against the present petitioners is not at all improper or liable to

be quashed.

I make it clear that the finding or observations made herein shall

not considered to be sacrosanct or precedent in deciding the proceeding

subsequently.

Thus, I find no merit to entertain the instant criminal revisional

application and it is liable to be dismissed.

The criminal revisional application is dismissed.

All connected pending applications, if any, are consequently

disposed of.

Any order of stay passed by this Court during the pendency of the

instant criminal revision is hereby also vacated.

Urgent Photostat certified copy of this order, if applied for, be given

to the parties, upon compliance of necessary formalities.

(Subhendu Samanta, J.)