Calcutta High Court (Appellete Side)
Avishek Biswas & Ors vs The State Of West Bengal & Anr on 6 August, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
CRR 4158 of 2022
With
IA No. CRAN 4 of 2023
Avishek Biswas & Ors.
Vs.
The State of West Bengal & Anr.
For the petitioners : Mr. Kumar Jyoti Tewari
Mr. Amrit Sinha
Mr. Aniruddha Tewari
For the opposite party no.1/State : Mr. Bidyut Kumar Roy
Ms. Sima Biswas
For the Opposite party no.2 : Mr. Kollol Mondal
Mr. Krishan Ray
Mr. Souvik Das
Heard on : 24.07.2024
Judgment on : 06.08.2024
Ajoy Kumar Mukherjee, J.
1. In the present application the petitioner sought for quashing the
criminal proceeding being G.R case no 709 of 2022 arising out of Jhargram
Police Station case no. 215 of 2022 dated 16.07.2022 under sections
498A/307/406/420/34 of Indian Penal Code and Section 3 and 4 of Dowry
Prohibition Act, 1961 presently pending before the court of learned Chief
Judicial Magistrate at Jhargram.
2. Petitioners' contention is that petitioner no.1 was married with the
defacto complainant/opposite party no. 2 on 22nd April 2015 and thereafter
started to live in Hyderabad. Due to some dispute and differences, they left
Hyderabad on 3rdFebruary 2022. However petitioner no.1 herein filed a suit
for restitution of conjugal rights. It is not in dispute that the petitioner no.1
and defacto complainant are living separately from 3rd February 2022.
3. Opposite party no. 2 herein thereafter filed one application before
Chief Judicial Magistrate at Jhargram on 13th January 2021 under section
156(3) of the code of criminal procedure, 1973 Cr.P.C with a prayer to send
the same to the local police station for investigation after treating the same
as First Information Report (in short FIR) Learned Magistrate by his order
dated 13thJanuary 2022 instead of allowing de facto complainant's prayer
made under section 156(3) of the Code, treated the same as a complaint
under section 200 of the Code and notice was issued to the petitioner herein
and after receipt of notice, petitioners obtained bail from learned Magistrate
on 14thJuly 2022.
4. Two days thereafter i.e. on 16th July 2022 the complainant/Opposite
Party no.2 herein lodged an FIR against the present petitioner. In the said
FIR there is no whisper about the pendency of the aforesaid complaint case
initiated by the FIR maker but concerned police, treating the de facto
complainant's statement as true started aforesaid Jhargram police station
case no 215 of 2022 dated 16thJuly 2022.
5. The main grievance ventilated by the petitioner in the present
application is that on the self-same allegation, there cannot be two criminal
cases and the present criminal proceeding had been initiated without
disclosing the fact that on the self-same allegation the complain case is
pending, where evidence is going on before the learned Magistrate.
Accordingly petitioner contended that the process of criminal law has been
abused at the hands of de facto complainant and any investigation in
connection with the aforesaid Jhargram police station case no 215 of 2022,
if allowed to be continued, would be an abuse of process of law. Infact in the
guise of investigation, Investigating Officer (IO) at the instance of the
opposite party no 2 and her relatives are harassing the petitioner. He further
submitted, since the allegation made in the FIR are the subject matter of the
aforesaid complain case, so the police case initiated by de facto complainant
on the self-same allegation are liable to be quashed. Moreover the allegation
made in the FIR do not prima facie constitute any offence or make out any
case against the petitioners as all the allegations are omnibus in nature and
entire family of the petitioner no. 1 have been implicated just to wreak
vengeance.
6. Mr. Mondal learned counsel appearing on behalf de facto complainant
/opposite party no. 2 argued that though the petitioner has prayed for
quashing the criminal proceeding on the ground that the subject matter of
both the proceeding are same but the FIR clearly reveals that the opposite
party no. 2 has categorically mentioned certain subsequent facts which
exclusively constitute offences, irrespective of fact canvassed in her earlier
complain case, pending before the learned jurisdictional court, being case
no. C.R case 1 of 2021. In the FIR, the opposite party no.2 herein as FIR
maker categorically stated with regard to the fact of entrustment of the car
documents along with its keys to the petitioner and as to how subsequently
the accused persons have refused to hand over the properties entrusted with
them by the petitioner which constitutes an offence of criminal breach of
trust in its individuality.
7. Mr. Mondal further submits that there is one more specific allegation
in the instant police case that the signature of the opposite party no. 2 has
been forged by the petitioner, in order to procure her bank statement and
the motive behind the said forgery of signature of the opposite party no.2 by
the petitioner is substantially clear as it was an attempt to substantiate
their claim before the learned jurisdictional court dealing with the
proceeding of awarding maintenance to the opposite party no.2 herein/wife.
This constitutes the ingredient of offence under Section 463 of the Code
which states that whoever makes any false document with intent to support
any claim is said to have committed forgery. Infact said forgery was made to
substantiate the claim before the concerned jurisdictional court dealing with
the proceeding of maintenance. Though police may have abstained from
putting any section concerning the offence of forgery in the in the formal FIR
but that does not preclude the FIR maker to get justice in respect of the
complain lodged by her, since it is the fact which constitute the offence. The
investigation of the police case has not yet been concluded and therefore it
is quite obvious that unless the investigation concluded and the charge
sheet is submitted against the accused persons and the opposite party no. 2
is informed, in the event any final report is submitted, she will not be able to
ventilate her contention before the jurisdictional court in the form of a
petition under section 173 (8) of the Code. Accordingly in the event the
instant proceeding is quashed by this court it would preclude the opposite
party no. 2 from availing her legal rights as has been canvased in the code,
and the same will cause serious prejudice to the interest of the opposite
party no. 1 since the petition of complain and the FIR ventilates two
separate distinct offences. It cannot be said to be an identical petition of
complain replicating the earlier complaint case and accordingly the present
application is liable to be dismissed.
8. Mr. Bidyut Kumar Roy learned counsel appearing on behalf of the
state/opposite party No.1 herein, submits that this court by its order, noted
that there is allegation of forging the signature of the complainant by the
husband for acquiring the bank statement and that specimen signature of
both the parties have been collected by the investigating officer for
comparison by handwriting expert, and accordingly directed the state to
produce the report of the handwriting expert. Mr. Mondal today submitted a
report sent by IO which reveals that so far material collected from the
handwriting expert it reveals that some documents were made by the
accused by making signature of Tiyashi Mitro by someone else. Accordingly
Mr. Roy submits that during investigation a prima facie criminal offence has
been made out against other accused persons and that investigation is still
continuing and as such the question of quashing the criminal proceeding
which prima facie discloses about committing offence by the accused, does
not arise at all. Accordingly State also vehemently opposed the petitioners'
prayer for quashing the aforesaid proceeding.
9. I have considered submissions made by both the parties.
10. Form the content of written compliant and the FIR, it is not in dispute
that in the FIR, the FIR maker/ opposite party no.2 herein has made
additional allegations of attempt to murder and forgery with specific
allegation that her signature was forged to get access in her bank account.
11. A bear reading of Section 210 of Cr.P.C makes it clear that during an
enquiry or trial relating to a complain case, if it is brought to the notice of
the magistrate that an investigation by the police is in progress in respect of
the same offence, he shall stay the proceeding of the complainant case and
call for the record from the police officer conducting the investigation. It also
lays down the procedure to be followed when there is a complain case and
police investigation in respect of the same offence. However, though it
appears form Section 210 that the magistrate may try the two cases arising
out of a police report and a private complain together and it contemplate
situation where having taken cognizance of an offence in respect of an
accused in a complainant case in a separate police investigation such a
person is again made an accused then the magistrate may enquire into or
try together the complain case and the case arising out of police report as if
both the cases were instituted in a police report. However if the accused
person of both the cases are different in two separate proceedings the
situation infact arisen where prejudice in all possibility is likely to be caused
in a single trial where a person is both an accused and a witness in view of
two separate preceding, out of which the trial arises the thing may be
otherwise.
12. In Herjind Singh Vs. The state of Punjab reported in (1985) 1 SCC
422 it was held that the clubbing and consolidating the two cases one on a
police challan and the other on a complain and if the prosecution version in
the two cases are materially different contradictory and mutually exclusive
should not be consolidated and should be tried together with the evidence in
the two cases being recorded separately so that both the cases could be
disposed of simultaneously.
13. In Kapil Agarwal and others vs. Sanjoy sharma and other
,reported in (2021) 5 SCC 524 the Apex court observed that if a report is
made by the IO under section 173 Cr.P.C and on such report cognizance of
any offence is taken by the magistrate against any person who is an accused
in the complaint case, the magistrate shall enquire into or try together the
complain case and the case arising out of the police report as if both the
cases were instituted on a police report. However if the police report does
not relate to any accused in the complain case or if the magistrate does not
take cognizance of any offence on a police report, he shall proceed with the
enquiry or trial which was stayed by him in accordance with the provision of
Cr.P.C. Accordingly supreme court held that merely because on the same set
of facts with the same allegation and averments, earlier the complaint is
filed there is no bar to lodge the FIR with the police station with the same
allegation and averments. In the said judgment it was also observed that if
at the same time it is found that the subsequent FIR is an abuse of process
of law and the same has been lodged only to harass the accused the same
can be quashed in exercise of power under section 482 of the Cr.P.C or
under Article 226 of the constitution and in that case obviously the
complaint case only will proceed further in accordance with the provision of
the Cr.P.C.
14. Coming back to the present context as I have noted above that the
investigation about the police case has not yet been completed and the
report of hand writing expert collected by IO during investigation and other
materials in the record prima facie discloses criminal offence, and as such it
can not be said that the subsequent FIR, if allowed to proceed further would
be an abuse process of law nor it can be said that the FIR maker has
incorporated the said allegation in the FIR only to harass the accused.
15. In such view of the matter C.R.R 4158 of 2022 is dismissed having
no substance. Connected Application is also disposed of accordingly.
16. However, this dismissal order will not preclude the petitioner herein to
make prayer under section 210 of Cr.P.C before the court below in the
appropriate stage if situation demand and if any such prayer under section
210 or any other appropriate application of similar nature is preferred before
the court below, such prayer will be disposed of in accordance with law
without being influenced by any observation made herein.
Urgent photostat certified copy of this order, if applied for, be supplied to the
parties, on priority basis on compliance of all usual formalities.
(AJOY KUMAR MUKHERJEE, J.)
