Calcutta High Court (Appellete Side)
Nirmal Kanti Deb vs Lakshi Debnath Nee Laxmi Debnath on 24 March, 2023
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present: - Hon'ble Mr. Justice Subhendu Samanta.
C.R.R. No. - 2773 of 2018
With
IA No. CRAN 6 of 2021 (not found)
IN THE MATTER OF
Nirmal Kanti Deb.
Vs.
Lakshi Debnath nee Laxmi Debnath.
For the petitioner : Mr. Subrata Goswami, Adv.,
Mr. Sumanta Ganguly, Adv.
Judgment on : 24.03.2023
The instant criminal revision has been preferred for quashing a
criminal proceeding being CR Case No. 43 of 2018 u/s 506/120B of the IPC
now pending before the Learned Judicial Magistrate at Nabadwip Nadia.
The brief fact of the petition of complaint filed by the present opposite
party before the Learned Magistrate can be described as follows-
After demise of the father of the opposite party she inherited a
premises being holding no. 109/2 situated at Ward no. 50 under Nabadwip
Municipality along with her two brothers and three sisters. It is further
contended that the opposite party got separated from her husband and she
is now residing at her father's house as mentioned above. Dispute between
the brothers cropped up in respect of the shares of the residential house and
civil case is pending before the court of Civil Judge Krishnanagar. It is the
further case of the O.P. that quite often she was assaulted and tortured by
her brothers. It is the case of the opposite party that the present petitioner is
an influential person in Nabadwip who threatened the opposite party to
leave the house otherwise she would be killed by her brothers. On the basis
of such threatening the instant complaint case was lodged.
After filing of that complaint case the opposite party and her daughter
was examined on S/A by the Magistrate and after recording of the S/A
Learned Magistrate issued the process against the present petitioner u/s
506/120B IPC.
Learned Advocate for the petitioner submits that impugned order of
issuance of process passed by the Learned Magistrate is illegal and improper
in the eye of law.
The process issued u/s 120B IPC reveals the non-application of
judicial mind by the Learned Magistrate. He also contended that the present
petitioner is no-way involved in the alleged commission of offence. He never
threatened the opposite party in any way. He is a councillor of Nabadwip
Municipality for which, he has been falsely implicated in this case.
It is the further case of the Learned Advocate for the petitioner that
ingredients of offence u/s 506 and 120B of IPC is missing in this case. So he
prayed for quashing.
Heard the Learned Advocate, perused the petition of complaint. It is
alleged in the petition of complaint that the present petitioner is the
influential person and on the day of incident he stated to the opposite party
to leave the house otherwise her brother may kill her. This appears to the
O.P to be an indirect threatening, thus she lodged the complaint.
I have perused the examination of the O.P and his daughter recorded
u/s 200 Cr.P.C. on S/A.
In the impugned order, after recording the S/A Learned Magistrate
was satisfied that there are sufficient ground for proceeding u/s
506(1)/120B of IPC. Admittedly section 120B of IPC deals with the
punishment of offence of criminal conspiracy.
Definition of Criminal conspiracy is laid down u/s 120 A of the IPC. It
enumerated as "Section- 120A when two or more persons agreed to do, or
caused to be done -......................................."
Thus to constitute an offence of criminal conspiracy there must be
two or more person. In this case only the present petitioner was arrayed as
an accused; it was not averted in the petition of complaint that the present
petitioner ever conspired with any person to commit such an offence. Thus
in my view the satisfaction of Learned Magistrate for proceeding against the
present petitioner u/s 120B IPC is baseless.
Section 506 IPC deals with punishment for offence of criminal
intimidation. The criminal intimidation was defined u/s 503 of IPC. To
constitute every offence mens ria is the essential ingredients. In this
particular case, the petition of complaint does not disclose about the mens
ria of the petitioner. It further appears that the complaint stated about the
alleged criminal intimidation against the present petitioner which is actually
his apprehension that the opposite party may be assaulted in future. The
act of an alleged criminal intimidation was not also witnessed by
independent witness except daughter of the OP (may be termed as interested
witness). If the entire fact of the petition of complaint along with the
statement of the sole witness is taken to be true then also it is highly
improbable for the Magistrate to prove the offence against the present
petitioner beyond reasonable doubt. No independent was cited as a witness
in this case; place of occurrence was not mentioned i.e. where she received
such alleged threatening from the present petitioner.
Considering the ratio of judgment of Hon'ble Apex Court in State of
Hariyana Vs. Bhajanlal (AIR 1992 Supreme Court 604); if the allegations
made in the complaint are taken at their face value, accepted in their
entirety; do not prima facie constitute an offence to make a case against the
accused.
Considering the facts and circumstances of this case and considering
the materials on record I find merits to entertain the instant revisional
application.
CRR is allowed.
The order of issuance of process passed by the Learned Magistrate
against the petitioner appear to be illegal and improper. Accordingly the
entire criminal proceeding against the present petitioner is hereby quashed.
CRR disposed of.
Any order of stay passed by this court during the continuation
of the instant criminal revision is also vacated.
Parties to act upon the server copy and urgent certified copy of
the judgment be received from the concerned Dept. on usual terms
and conditions.
(Subhendu Samanta, J.)
