Calcutta High Court (Appellete Side)

Kishore Kumar Singh vs The State Of West Bengal & Ors on 21 September, 2023

                IN THE HIGH COURT AT CALCUTTA

                (Criminal Revisional Jurisdiction)

                          Appellate Side
Present:
Justice Bibhas Ranjan De


                       C.R.R. 1946 of 2015
                               With
                      IA No. CRAN 16 of 2023
                       Kishore Kumar Singh
                                Vs.
                 The State of West Bengal & Ors.


For the Petitioners       :Mr. Sandipan Ganguly, Sr. Adv.
                          Mr. A.K. Sil, Adv.
                           Mr. S.K. Dutt, Adv.
                          Ms. Manaswita Mukherjee


For the State           :Mr. Saswata Gopal Mukherjee , Ld. P.P.
                          Mr. Narayan Prasad Agarwal, Adv.
                          Mr. Aniket Mitra, Adv.
                          Mr. Pratick Bose. Adv.


Opposite party no.2        Mr. Satadru Lahiri. Adv.
                           Mr. Sujoy Sarkar, Adv.
                           Mr. Rahul Chachar, Adv
                                     2


Heard on                     :19.06.2023, 31.07.2023, 09.08.2023,
                             22.08.2023, 23.08.2023,12.09.2023
Judgment on                  : 21st September, 2023


Bibhas Ranjan De, J.

1. This revision application has been filed with a prayer for

quashing of the proceeding of G.R. Case no. 1645 of 2014

under Sections 506 & 509 of the Indian Penal Code

corresponding Hare Street Police Station Case No. 438/14

dated 25.07.2014.

Background facts:-

2. On 25.07.2014 opposite party no. 2 file one complaint before

the officer in-charge, Hare Street Police Station, alleging inter

alia, that she was an employee of Standard Chartered Bank,

Church Lane, Kolkata and her service was terminated illegally

for which she approached the Labour Court. She used to visit

to her advocate at New Secretariat Building, on Kiran Shankar

Roy Road, Kolkata accompanied by either of her parents. It

was further alleged that her Branch Manger i.e. petitioner of

this case threatened her by giving wrong signs and also

threatened them to withdraw the case against Standard

Chartered Bank, a big institution and can purchase

judgement. For that reason her father became hospitalized

and mother became ill. On receipt of the written complaint

Hare Street Police Station Case No. 438/14 dated 25.07.2014

was started and after investigation charge sheet was filed on

11.10.2014.

3. Ld. Senior Advocate, Mr. Sandipan Ganguly, appearing on

behalf of the petitioner has submitted that the criminal

proceeding was initiated at the instance of opposite party no. 2

as a counter blast of her termination of her employment at

standard chartered bank where petitioner was a Branch

Manager. In support of his contention Mr. Ganguly, referred to

the copies of statement of the employees of the bank recorded

under Section 161 of the Criminal Procedure Code and tried to

make this court understand that none of the employees

supported the case of the complainant / opposite party no. 2.

Mr. Ganguly emphasized on the fact of initiation of criminal

proceeding after termination of complainant giving rise to a

presumption of counter blast.

4. In support of his submission he relied on cases of :-

Abhijeet J.K. Vs. State of Kerala reported in 2020 SCC

OnLine Ker 703, Salib alias Shalu alias Salim Vs. State

of U.P. and others reported in 2023 SCC OnLine SC

947and Mohammad Wajid and another Vs. State of U.P.

and others reported in 2023 SCC OnLine SC 951.

5. In opposition to that Ld. Advocate, Mr. Satadru Lahiri,

appearing on behalf of the opposite party no. 2 has contended

that allegation of wrong sign and threat for withdrawing the

case has been ratified by statement of complainant recorded

under Section 164 of the Criminal Procedure Code(for short

CrPC) as well as the statement of her parents. Mr. Lahiri has

submitted that written complaint was prima facie corroborated

by the subsequent statement recorded under Section 161/164

of the CrPC and at this stage credibility of the evidence cannot

be looked into in exercising power under Article 482 of the

CrPC.

6. Mr. Lahiri relied on the following cases:-

State of Karnataka Vs. M. Devendrappa and another

reported in (2002) 3 Supreme Court Cases 89

Ghanshyam Sharma Vs. Surendra Kumar Sharma and

others reported in (2014) 13 Supreme Court Cases 401

Rupan Deol Bajaj (Mrs) and another Vs. Kanwar Pal Singh

Gill and another reported in (1995) 6 Supreme Court Cases

Kaptan Singh Vs. State of Uttar Pradesh and others

reported in (2021) 9 Supreme Court Cases 35

Jaideep Chatterjee and other Vs. State of West Bengal

and another reported in 2023 SCC OnLine Cal 1790

Central Bureau of Investigation Vs. Aryan Singh reported

in 2023 SCC OnLine SC 379

Decision:-

7. What I have discussed in the aforementioned paragraphs

reveal that opposite party no. 2 was an employee of standard

chartered bank of Church Lane Branch and her service was

terminated for which opposite party no. 2 approached before

the Labour Court presumably challenging the order of

termination.

8. Subsequently, when opposite party no. 2 visited the court as

well as her advocates, petitioner used to treat her to withdraw

the case and also displayed wrong signals. As a result, her

parents became ill.

9. Complainant/ op no. 2 lodged written complaint before Hare

Street police Station and specific case was registered. During

investigation witness employees of the bank were examined by

the investigating officer and ultimately charge sheet was

submitted.

10. Now the question is whether allegation of threat of wrong

sign can be adjudicated as false one or with ulterior motive for

wreaking vengeance as opposite party no. 2 was terminated.

11. In Abhijeet J.K (supra) it was held as follows:-

" 10. There is distinction between an act of merely insulting a woman and an act of insulting the modesty of a woman. In order to attract Section 509 I.P.C, merely insulting a woman is not sufficient. Insult to the modesty of a woman is an essential ingredient of an offence punishable under Section 509 I.P.C. The crux of the offence is the intention to insult the modesty of a woman.

11. Section 509 I.P.C. criminalises a „word, gesture or act intended to insult the modesty of a woman‟ and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act (See Khushboo v. Kanniammal : (2010) 5 SCC 600 : AIR 2010 SC 3196).

12. The essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty (See State of Punjab v. Major Singh : AIR 1967 SC 63). Modesty is a virtue which attaches to a female owing to her sex (See Raju Pandurang Mahale v. State of Maharashtra : (2004) 4 SCC 371 : AIR 2004 SC 1677).

13. If the word uttered or the gesture made could be perceived as one which is capable of shocking the sense of decency of a woman, then

it can be found that it is an act of insult to the modesty of the woman (See Rupan Deol Bajaj v. K.P.S. Gill : (1995) 6 SCC 194 : AIR 1996 SC

309)."

12. In Abhijeet J.K. (supra) prosecution was conducted on

the allegation that petitioner/accused approached the

complainant and invited her to accompany him on the motor

cycle. Petitioner also made sexual gesture to her with his

hand.

13. In our case, I am not dealing with any act on the part of

the petitioner which did not cause any insult to the modesty of

the complainant/ opposite party no. 2. In this case, I am also

dealing with an allegation of threat.

14. In Salib (supra) Hon'ble Apex Court observed in

paragraph 28 as quoted below:-

"28. At this stage, we would like to observe something important.

Whenever an accused comes before the Court invoking either the

inherent powers under Section 482 of the Code of Criminal

Procedure (CrPC) or extraordinary jurisdiction under Article 226 of

the Constitution to get the FIR or the criminal proceedings quashed

essentially on the ground that such proceedings are manifestly frivolous

or vexatious or instituted with the ulterior motive for wreaking

vengeance, then in such circumstances the Court owes a duty to look

into the FIR with care and a little more closely. We say so because once

the complainant decides to proceed against the accused with an ulterior

motive for wreaking personal vengeance, etc., then he would ensure that

the FIR/complaint is very well drafted with all the necessary pleadings.

The complainant would ensure that the averments made in the

FIR/complaint are such that they disclose the necessary ingredients to

constitute the alleged offence. Therefore, it will not be just enough for the

Court to look into the averments made in the FIR/complaint alone for the

purpose of ascertaining whether the necessary ingredients to constitute

the alleged offence are disclosed or not. In frivolous or vexatious

proceedings, the Court owes a duty to look into many other attending

circumstances emerging from the record of the case over and above the

averments and, if need be, with due care and circumspection try to read

in between the lines. The Court while exercising its jurisdiction under

Section 482 of the CrPC or Article 226 of the Constitution need not

restrict itself only to the stage of a case but is empowered to take into

account the overall circumstances leading to the initiation/registration of

the case as well as the materials collected in the course of investigation.

Take for instance the case on hand. Multiple FIRs have been registered

over a period of time. It is in the background of such circumstances the

registration of multiple FIRs assumes importance, thereby attracting the

issue of wreaking vengeance out of private or personal grudge as

alleged."

15. Facts and circumstances of the case in Salib (supra) is

that the name of the accused was not mentioned in the FIR

and his name appeared in subsequent statement of the

informant recorded under Section 161 CrPC. In that case

threat to witness was also an issue. But in the case on hand

petitioner was not only named in the FIR but also appeared in

subsequent statement under Section 161 & 164 of the CrPC.

However, facts and circumstances of the case dealt with by the

Hon'ble Apex Court is not identical with that of ours.

16. Mohammad Wajid (supra) laid down the following

principle:-

"34. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation.

Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the

issue of wreaking vengeance out of private or personal grudge as alleged.

35. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:--

"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal

evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....."

17. In Mohammad Wajid (supra) Hon'ble Apex Court dealt

with an incident of land dispute between parties and also

abnormal delay in lodging FIR containing neither any specific

date or time of the alleged incident.

18. In catena of decisions Hon'ble Apex Court as well as

various High Courts held that power under Section 482 CrPC

must be exercised sparingly, with circumspection and in

rarest of rare case. Exercise of inherent power under Section

482 of the CrPC is not the rule but it is an exception. The

exception is applied only when it is brought to the notice of the

court. That grave miscarriage of justice would be committed if

the trial is allowed to proceed where the accused would be

harassed unnecessarily if the trial is allowed to linger when

prima facie it appears to Court that the trial would likely to be

ended in acquittal.

19. On the other hand, Hon'ble Apex Court in Jaideep

Chatterjee (supra) held in paragraph 29 as quoted below:-

" 29. This, does not, however mean that no incident took place on 28th July,

2022 that the petitioner No. 3 Asmaat Zaheer used to stare at the defacto

complainant disgracefully and made remarks regarding her sitting posture etc.

are undoubtedly an act of making sexually coloured remarks. The defacto

complainant also stated that on 28th July, 2022 she was harassed by the

petitioners when they abused her making sexually coloured statements. This

allegation found place in her complaint made before the POSH Committee on

the date of occurrence itself. She made the same complaint subsequently to the

administrator of the company on 19th September, 2022. She also made the

allegation of sexual harassment in her letter dated 13th October, 2022 to one

Ms. Suparna Mukherjee, Adv, Ms. Leena Panja, Ms. Susmita Banerjee, Sr.

Manager, SREI and Mr. Shayan Sachin Basu, Adv. Same allegation is depicted

in the complaint dated 18th October, 2022."

20. Rupan Deol Bajaj (supra) deals with a detailed

allegation of outrage of modesty unlike our case where

allegation was threat to withdraw case and wrong sign.

21. In M. Devendrappan (supra) Hon'ble Apex Court laid

down a principle in paragraph 9 as quoted below:-

"9. 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."

22. In Aryan Singh (supra) Hon'ble Apex Court observed as

paragraph 9 & 10 as follows:-

" 9. 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.

10. 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 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".

23. Kaptan Singh (supra) held in paragraph 9.1 as follows:-

9.1. At the outset, it is required to be noted that in the present case

the High Court in exercise of powers under Section 482 CrPC has

quashed the criminal proceedings for the offences under Sections

147, 148, 149, 406, 329 and 386 IPC. It is required to be noted

that when the High Court in exercise of powers under Section 482

CrPC quashed the criminal proceedings, by the time the

investigating officer after recording the statement of the witnesses,

statement of the complainant and collecting the evidence from the

incident place and after taking statement of the independent

witnesses and even statement of the accused persons, has filed

the charge-sheet before the learned Magistrate for the offences

under Sections 147, 148, 149, 406, 329 and 386 IPC and even the

learned Magistrate also took the cognizance. From the impugned

judgment and order [Radhey Shyam Gupta v. State of U.P., 2020

SCC OnLine All 914] passed by the High Court, it does not appear

that the High Court took into consideration the material collected

during the investigation/inquiry and even the statements recorded.

If the petition under Section 482 CrPC was at the stage of FIR in

that case the allegations in the FIR/complaint only are required to

be considered and whether a cognizable offence is disclosed or not

is required to be considered. However, thereafter when the

statements are recorded, evidence is collected and the charge-

sheet is filed after conclusion of the investigation/inquiry the

matter stands on different footing and the Court is required to

consider the material/evidence collected during the investigation.

Even at this stage also, as observed and held by this Court in a

catena of decisions, the High Court is not required to go into the

merits of the allegations and/or enter into the merits of the case as

if the High Court is exercising the appellate jurisdiction and/or

conducting the trial. As held by this Court in Dineshbhai

Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of

Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to

examine as to whether factual contents of FIR disclose any

cognizable offence or not, the High Court cannot act like the

investigating agency nor can exercise the powers like an appellate

court. It is further observed and held that that question is required

to be examined keeping in view, the contents of FIR and prima

facie material, if any, requiring no proof. At such stage, the High

Court cannot appreciate evidence nor can it draw its own

inferences from contents of FIR and material relied on. It is further

observed it is more so, when the material relied on is disputed. It is

further observed that in such a situation, it becomes the job of the

investigating authority at such stage to probe and then of the court

to examine questions once the charge-sheet is filed along with such

material as to how far and to what extent reliance can be placed

on such material."