Calcutta High Court (Appellete Side)
Sri Ashok Kumar Sarkar @ Asok Kumar ... vs The State Of West Bengal on 1 October, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
CRR 421 of 2022
Sri Ashok Kumar Sarkar @ Asok Kumar Sarkar
Vs.
The State of West Bengal
For the petitioner : Mr. Debasis Kar
For the State : Mr. Debasish Roy
Mr. Imran Ali
Ms. Debjani Sahu
Heard on : 26.09.2024
Judgement on : 01.10.2024
Ajoy Kumar Mukherjee, J.
1. This application for quashing has been preferred challenging the
impugned proceeding against petitioner herein, being G.R. Case no. 439 of
2020 arising out of Ketugram Police Station case no. 217 of 2020 dated
25.06.2020 under section 448/409/354/34 of the Indian Penal Code,
presently pending before learned Additional Chief Judicial Magistrate,
Katwa.
2. In the written complaint defacto complainant alleged that on
30.05.2020 at about 10.00a.m when she was engaged in households work,
all the accused persons came in front of complainant's house and started
abusing her with filthy language and when she raised her protest, all of
them trespassed into her house and assaulted her and also outraged her
modesty. The local people assembled at the spot and seeing them the
petitioner along with other accused persons fled away.
3. The petitioner obtained anticipatory bail from learned sessions judge
Purba Burdwan. The investigating authority after completion of investigation
have submitted charge sheet against all the five FIR named accused persons
including the present petitioner.
4. Mr. Kar learned counsel appearing on behalf of the petitioner submits
that present case is nothing but counter blast of the case in which the
petitioner herein is the complainant and the opposite party no.2
herein/complainant along with others are the accused persons. He further
submits that the petitioner has also filed a civil suit being T.S. 147 of 2018
concerning property dispute among the parties which is pending before
learned Civil Judge (Senior Division), Katwa but the FIR maker in the
written complaint has suppressed about the pendency of said proceeding.
He further submits that the present case has been initiated only for the
purpose of harassing the petitioner by somewhat means, knowing fully well
that the petitioners are residing far away from the alleged place of
occurrence. It has been further argued by the petitioner that the ingredients
of the offences alleged against the present petitioner are sadly missing in the
present case and complainant/O.P. no.2 has tried to use the criminal court
as the engine of oppression and her only motive is to entangle the innocent
petitioner with false criminal cases. He further submits that there exists
bonafide property dispute among the parties and as such the defacto
complainant cannot accuse the petitioners herein on the allegation of house
trespass.
5. He further submits that on careful perusal of the complaint as well as
materials available in the case diary, it appears that no specific allegation
has been attributed against the present petitioner either in connection with
house trespass or outraging modesty or about insulting the complainant
concerning her modesty. The allegations are omnibus in nature and the
proceeding is manifestly attended with malafide and with an ulterior motive
for wrecking vengeance on the petitioner with a view to spite him due to
private and personal grudge arising out of private and personal family
dispute.
6. Learned counsel appearing for the State placed the case diary and
submits that in the FIR the complainants allegation clearly constitute
cognizable offence and the investigation has also been culminated into a
charge-sheet and as such the prosecution should get an opportunity to
prove the case. Accordingly the present proceeding should not be quashed
without having a trial.
7. Opposite party No.2/complainant is not represented.
8. I have considered submissions made by both the parties.
9. From the case diary it appears that during investigation police has
recorded statement of four witnesses, who have made almost similar
statement and most importantly none of the said witnesses have attributed
any specific allegation against the present petitioner and omnibus
statements hardly constitute the offence as mentioned in the charge sheet.
Beside the aforesaid statement of four witnesses recorded under section 161
of the code of criminal procedure, I do not find any other incriminating
material in the case diary.
10. Having considered the materials available in the case diary as well as
in the background of dispute between the parties and taking the allegations
made against present petitioner at it's face value and as correct in their
entirety, I am unable to persuade myself to hold that the contents of the
materials available before me discloses the offences as alleged in the FIR
against present petitioner. Applying the law laid down in Bhajan Lal's Case
(AIR 1992 SC 604) to the instant case, it can safely be concluded that the
petitioner's case clearly falls within the ambit of first, third, fifth and seventh
category of para 108 of the said judgment. It has been held time and again
that the court must ensure that criminal prosecution is not used as an
instrument of harassment or for seeking private vendetta or with an ulterior
motive to pressurize the accused /petitioner.
11. In such view of the matter, I find that the continuance of further
proceeding against the present petitioner will be mere abuse of the process
of the court.
12. In such view of the matter the proceeding being CRR 421 of 2020 is
allowed. The impugned proceeding being G.R. 439 of 2020 presently pending
before additional chief judicial magistrate Katwa is hereby quashed qua the
petitioner Shri Ashok Kumar Sarkar @ Asok Kumar sarkar.
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.)
