Calcutta High Court (Appellete Side)
Anuj Sharma vs The State Of West Bengal & Anr on 18 September, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
CRR 3417 of 2022
Anuj Sharma
Vs.
The State of West Bengal & anr
For the petitioner : Ms. Manjit Singh
Mr. Biswajit Mal
Mr. Arkaprabho Roy
Mr. Soujanyo Pattanayak
Mr. Palash Mukherjee
For the state . Mr. Madhusudan Sur, Ld. APP
Mr. Dipankar Paramanick
Heard On 12.09.2024
Judgment on : 18.09.2024
Ajoy Kumar Mukherjee, J.
1. This application has been preferred challenging the order dated 22nd
August, 2022, by which the court below rejected the petitioner's prayer for
discharge filed under section 227 of the Code of Criminal Procedure in S.T
No. 108 of 2021.
2. The petitioner has been arraigned as accused person in connection
with Belur P.S. case no. 1 of 2020 dated 01.01.2020 under section 302/
120B/ 34 of the IPC. The FIR discloses that on 31.12.2019 at about 23.00
hrs some miscreants had attacked some of the neighbours of the
complainant in front of the gate of Rajendra Ispat Udyag. The complainant
and his nephew allegedly rushed to the spot and tried to stop them but the
miscreants suddenly started to beat them with bricks and stones and
accordingly they became senseless and later on the nephew of the
complainant died whom the miscreants hit on his head with a solid barrier
of cement. In the FIR complaint mentioned the name of 16 accused persons
including the present petitioner. After completion of investigation police
submitted charge sheet against all the 16 accused persons including the
present petitioner under sections 302/120B/34 of the Indian Penal Code.
3. Further contention of complaint is that, since no role of the present
petitioner has been ascribed and the witnesses had stated before the
investigating officer that petitioner was merely found present at the place of
the occurrence and petitioners name did not transpire in the statement of
the witnesses recorded under section 164 Cr.P.C, so the petitioner herein
has preferred the aforesaid application under section 227 of the Code
seeking discharge but learned Trial Court by the order impugned rejected
such prayer.
4. Being aggrieved by the said order Mr. Manjit Singh learned counsel
appearing on behalf of the petitioner argued that though this High Court
earlier rejected petitioner's application for quashing of the said proceeding
qua petitioner, but when the petitioner was served copies of materials
collected during investigation, he found that no incriminating material is
available in the case diary, which can implicate the petitioner either under
section 34 or under section 120 B of the IPC, petitioner made the aforesaid
prayer under section 227 of the Code. He further submits that the
investigation made by the police authorities clearly reveals that the
petitioner had no role in the commission of any offence and at best he was
merely onlooker to the commission of the offence. He further pointed out
that during investigation police has examined several eye-witnesses, out of
them only four witnesses have named the petitioner in their statements
recorded under section 161 of the Code. However, none of these four
statements ascribed any role to the petitioner in the commission of the
offence and they only named him as being present in a crowd of people.
Interestingly all these four witnesses were also examined before the
magistrate, but none of them have named the petitioner in their statement
recorded under section 164 of the Code.
5. Mr. Singh strenuously argued that it is settled law that charges
should not be framed until and unless materials placed before the court
discloses grave suspicion against the accused. The supreme Court held even
in a case, if two view are possible and the judge is satisfied that the evidence
produced before him give rise to some suspicions, but not grave suspicions
against the accused, the prayer made under section 227 is to be allowed.
The court below ought to have considered the broad probabilities of the
case, the total effect of the evidence and documents as well as basic
infirmities appearing in the case and the court is not supposed to act as a
mere post office or mouth piece of the prosecution. Learned counsel
appearing on behalf of the State tried to influence the court below by
submitting that section 149 of the IPC may attract in the present context,
though no charge sheet has been submitted for any offence allegedly
committed by the petitioner under section 149 of the IPC. Accordingly Mr.
Singh has prayed for quashing of the said proceeding quo petitioner herein
and in this context he relied upon
(a) State Vs. A. Arun Kumar and another reported in 2015 2 SCC
417.
(b) Sajjan Kumar Vs. CBI reported in 2010 9 SCC 368.
(c) Bindu and another Vs. State of NCT of Delhi 2019 reported in
SCC Online Delhi 8963.
(d) Union of India Vs. Prafulla Kumar Shyamal and another
reported in 1979 3 SCC 4.
(e) Chandi Puliya State of West Bengal reported in 2022 SCC
Online SC 1710.
(f) Jasdip Singh Vs. State of Punjab, reported in 2022 2 SCC 545 .
6. Mr. Madhusudan Sur learned counsel appearing on behalf of the state
placed the case diary and he submits that from the averments it is clear that
this court earlier rejected petitioners prayer seeking quashment and as such
present prayer made by the petitioner on the self same ground is frivolous
and an attempt to abuse the process of the court. That apart, the materials
collected by the investigating agency during investigation transpires the
name of the petitioner and he was not a mere bystander at the place of
occurrence. Whether the offence was committed is furtherance of the
common intention, and/or whether such murder is an outcome of deep-
routed conspiracy, can only be adjudicated after trial and merely on the
basis of suspicion that the petitioner might not be convicted at the end of
trial, is not sufficient ground to discharge the petitioner. Accordingly he
submits that the order impugned does not call for interference.
7. Opposite party no.2 is not represented.
8. I have considered submissions made by both the parties.
9. It appears from the order dated 21.01.2021 passed by this court in
CRR 1926 of 2020 that this petitioner made an application for quashing of
the instant proceeding qua petitioner on the ground that he has been falsely
implicated and mere presence of the petitioner at the scene of the crime
cannot be determinative to rope the accused persons in the instant case and
there is no material suggestive of implication of the petitioner in the instant
case. Learned counsel appeared on behalf of the State opposed such prayer
taking support of the materials already collected during investigation.
However, this court while adjudicating said proceeding, seeking proposed
quashement, took note of the fact that the charge sheet have already been
submitted and warrant of arrest is pending against the present petitioner
and thereby this court rejected present petitioners aforesaid prayer for
quashement with the following observation
"Having considered the submission of both sides and bearing in mind the
materials already collected in the CD transpiring the name of the petitioner as
one of the perpetrators to the crime, it would neither be advisable nor feasible
to accede to the proposed quashment ignoring the materials already collected
against the petitioner. By reasons of the proposed quashment, there is chance
of rendering the prosecution case to go frustrated even after undertaking a
successful investigation, which already ended in charge-sheet. The extra-
ordinary power under section 482 Cr.P.C. is not appropriate to be exercised in
the facts and circumstances of the case. The prayer for quashing is , thus,
refused."
10. It is very much clear from the observation made by this court in
aforesaid CRR 1926 of 2020 preferred by the present petitioner that said
observation was made by this court after filing of the charge sheet and after
considering all the materials collected by the investigating agency during
investigation. Since then no new circumstance or ground has been put forth
before this Court to reconsider or revisit the said observation passed in CRR
1926 of 2020, except the submission made on behalf of the petitioner that
when said application was preferred the petitioner was not equipped with
the materials which was served upon them under section 207 of the Code.
But that ground has got no substance in view of the fact that, even if it is
presumed that the said application was preferred by the petitioner without
going through the materials that were collected during investigation, even
then this court while passed the said order on 21.01.2021 had the
opportunity to peruse all the materials collected during investigation and
this Court passed the order "bearing in mind the materials already collected
in the CD".
11. In Rajib Thapar Vs. Madan Lal Kapoor, reported in (2013) 3 SCC
330, the Supreme Court has clearly held that this is not a stage of
evaluating the truthfulness or other wise of the allegations levelled by the
complainant against the petitioner nor it is the stage for determining how
weighty the defences raised on behalf of the petitioner are. Even if the
accused is successful in showing some suspicion or doubt from the annexed
documents, it would be impermissible to discharge the petitioner before trial
because it would result in giving finality to the acquisitions levelled by the
prosecution without allowing the prosecution to adduce evidence to
substantiate the same. It was further held in the judgment that the converse
is however not true, because even if trial is proceeded with, the accused is
not subjected to any irreparable consequences, the petitioner/accused
herein would still be in a position to succeed by establishing his defence by
producing evidence in accordance with law.
12. In such view of the matter I do not find any illegality or impropriety in
the order impugned, which calls for interference by this court invoking
jurisdiction under section 482 of the Code.
13. CRR 3417 of 2022 thus stands dismissed.
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.)
