Calcutta High Court (Appellete Side)
Kawaljeet Kaur & Ors vs The State Of West Bengal And Another on 27 January, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
C.R.R. 1924 of 2018
with
I A No. CRAN 1 of 2019 (Old No. CRAN 5015 of 2019)
With
IA No. CRAN 2 of 2023
Kawaljeet Kaur & ors.
Vs.
The State of West Bengal and Another
For the Petitioner : Mr. Brojesh Jha
Mr. Neel Chakraborty
Ms. Prasupti Upadhya
Ms. Anushka Ghosh
Mr. Soumya Sarkar
For the Opposite Party No.2 : Mr. Sandipan Ganguly
Ms. Manaswita Mukeherjee
Mr. Loknath Chatterjee
Mr. Sukanta Ghosh
Heard on : 14.01.2025
Judgment on : 27.01.2025
Dr. Ajoy Kumar Mukherjee , J.:
1. The instant application has been directed by the petitioners seeking
quashing of the proceeding of Basirhat P.S. Case no. 256 dated 03.06.2018
under section 384/389/34 of the Indian Penal code. The FIR
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maker/opposite party no.2 alleged in the F.I.R about extortion by putting
her in fear of accusation of rape against her son.
2. On the basis of complaint aforesaid criminal proceeding was initiated
and thereafter on completion of investigation police submitted charge sheet
against the petitioners under section 384/389/34 of the Indian Penal Code
and learned Magistrate was pleased to take cognizance of the offence
alleged therein and further pleased to supply the copies to the accused
persons under section 207 of the Code and the instant case is presently
pending for framing of charges before the trial court.
3. Being aggrieved by the said proceeding, Mr. Jha learned Counsel
appearing on behalf of the petitioners submit that on the alleged date of
incident i.e. on 04.02.2018 the petitioner no.1 and the son of opposite
party no.2 were sharing a cordial and healthy relationship and till that
date, the proposal for marriage was not cancelled. The document revealed
that on 04.02.2018 they were exchanging photograph of their rooms to
finalize its decoration as appearing from the screenshot of chatting between
the son of opposite party no. 2 and the petitioner no.1, which are made as
annexure P2.
4. Thereafter relationship between the petitioner no.1 and the son of
opposite party no.2 detoriated and the son of opposite party no.2 stopped
all communication and denied to marry petitioner no.1. Petitioner no. 1
had made several attempts to contact the son of opposite party no. 2 but
could not make any communication. Finding no other alternative on May,
27, 2018 the petitioner no. 1 lodged complaint with the Deputy
Commissioner of Police New Delhi Interalia making allegation against the
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son of opposite party no. 2 under section 376/328/354/506/509 of the
Indian Penal code.
5. After getting intimation about the written complaint the son of
opposite party no. 2 immediately rushed to New Delhi and tried to
persuade the petitioner no.1 to withdraw the case, as appearing from
Whats App chats.
6. The brother of the opposite party no.2 also spoke with petitioner no.1
on May 27, 2018. It further transpires from the register of Hotel,
Cannaught Place, New Delhi, that on and after 25.05.2018 the son of
opposite party no. 2 went to New Delhi, which is immediately before and
after lodging of complaint by the petitioner no.1.
7. The specific alibi taken by the petitioners is that on the date of
alleged occurrence they were staying elsewhere as has been clearly
reflected in the investigation report in the form of the charge sheet, in
connection with Barakhmba P.S. case no. 58 dated 26.05.2018.
8. It reveals that the petitioner no. 1 along with her parents and
brother remained present whole day at Kailana Khas Gurudwara on the
alleged day i.e. on 04.02.2018 and discussed the Roka Ceremony with the
priest but no Roka Ceremony had taken place on that day. The tower
locations as well as the video recordings collected during investigation of
Barakhamba Police Station, clearly goes to show that the son of the
opposite party no. 2 met the petitioner no.1 between 25.05.2018 to
28.05.2018.
9. Mr. Jha strenuously argued that the statements/discussions/chats
as well as the conduct of the son of opposite party no.2 after lodging of the
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complaint at Barakhamba Police Station itself goes to show that the
present case is a false one and has been made out for wreaking vengeance
and is a counterblast when the petitioner no.1 did not withdraw the case at
New Delhi. He further submits that man may lie but the scientific
evidences collected during investigation in the said case cannot be
overlooked by the court. He further pointed out that the statements
recorded under section 164 of the Cr.P.C. made by the witnesses are
inconsistent with the FIR. Nowhere in the FIR it has been stated that the
FIR maker had handed over any money to the petitioner. He further argued
that the alleged date of occurrence is 04th February, 2018 but the
complaint was lodged on 3rd June, 2018 which is after a lapse of four
months and the delay itself shows the malafide intention of the opposite
party no. 2 Moreover, there are serious anomalies in the statements
recorded under section 161 and 164 of Cr.P.C with that of the FIR.
10. Mr. Jha further contended in reply to the opposite party’s contention
that prosecution/state has alleged that several notices were sent under
section 41 of the Code but from the order dated 18th February, 2018 passed
by the Apex Court, it appears that State could not show a single document
to establish that any notice was served upon the petitioners and that was
the reason why the Apex Court was pleased to direct the court below to
release the petitioner no. 2 and 3 immediately. Mr. Jha further argued that
there are recordings of CCTV Camera which show that the son of opposite
party no. 2 met the petitioner no. 1 between 25.05.2018 and 28.05.2018
and that the son of opposite party no. 2 and other family members met the
petitioner no.1 in New Delhi to withdraw the case lodged by her. Mr. Jha
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further argued while contradicting the argument raised by opposite party
no.2 that the evidences referred by the petitioner in the present application
are all scientific evidence/tower locations as well as transcription and as
such they are very much admissible at this stage for considering the
present application. Petitioners in this context relied upon the following
judgments.
(a) 1992 Supp (1) SCC 335, State of Haryana and others vs.
Bhajan Lal and others.
(b) 2023 SCC OnLine SC 947, Salib @ Shalu @ Salim V.s State of
U.P and others.
(c) (2020) 13 SCC 435, Ahmad Ali Quraishi and another Vs.
State of Uttar Pradesh and another.
(e) (2011) 3 SCC 351, Harshendra Kumar D Vs. Rebatilata Koley
and others.
11. Mr. Sandipan Gangully learned Counsel appearing on behalf of the
private opposite party no.2 argued that the contents of the FIR palpably
makes out a prima facie case under section 384 and 389 IPC against the
petitioners. The investigating agency after conducting thorough
investigation has submitted its report to the effect that the cognizable
offence alleged against the petitioner in the FIR have been prima facie
established and the accused persons have been sent up for trial.
12. Mr. Gangully further argued that though the petitioners in their
argument have heavily relied on their plea of alibi to the effect that at the
time of occurrence i.e. on 04.02.2018, they were at Rohtag in connection
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with Roka Ceremony and was never at the place of occurrence and to
substantiate the same they have relied upon the findings made in
Barkhamba Police Station case no. 58 dated 26.05.2018, but the plea of
alibi is an afterthought and has been specifically manufactured by the
petitioners after the initiation of the present proceeding.
13. Mr. Gangully further argued that the allegations made in the FIR of
the instant case, as well as the material collected during investigation if
taken at their face value and accepted in their entirety, prima facie
constitute offence against the accused. The petitioners at the stage of the
present proceeding for quashing cannot establish their case, placing
reliance on documents collected by a different investigating agency in a
different case i.e. Barkhamba Police Station Case no. 58 dated 26.05.2018.
14. Mr. Gangully further argued that though the petitioners specific case
is that the present case is a malicious prosecution, as the son of opposite
party no.2 is an accused in a criminal case, initiated by the petitioner no.1
but the documents sought to be relied by the petitioners to prove their
contention of malicious prosecution are not forming part of the prosecution
case and as such cannot be looked into. At this stage only the complaint
and the accompaniments can be looked into to identify whether a prima
facie case is made out or not. Similarly the contention of the petitioners
that the present case is a counterblast to the proceeding initiated by the
petitioner no.1 against the son of opposite party no.2 holds no water, as at
this stage of quashing it is not for the High Court to enter into factual
arena and decide whether the allegations are correct or whether the same
are the counterblast to any proceeding initiated by the petitioner no.1.
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Accordingly opposite party no.2 has prayed for dismissal of the present
application.
15. Mr. Nandy learned Counsel appearing on behalf of the State placed
the Case Diary and submitted that there are sufficient grounds for
proceeding against the accused persons, as appearing from the materials
collected during investigation and as such it is not a fit case to quash the
criminal proceeding invoking jurisdiction of this court under section 482 of
the Code of Criminal Procedure.
16. I have considered submissions made by all the parties.
17. On perusal of the written complaint it appears that the sum and
substance of the written complaint is that on 31.01.2018 at around 9:30
p.m. the opposite party no.2 received a phone call from the petitioners
where they threatened opposite party no.2 that if she would fail to hand
over Rs. 15 lakhs within 7 days they would lodge a false complaint of rape
against her son and that they would come on 04.02.2018 to the house of
the opposite party no.2 to obtain aforesaid Rs. 15 lakhs from her. The
complainant after receiving such phone call, inform the entire incident to
one Ratan Mondal who was the teacher of her son and she got frightened.
Thereafter on 04.02.2018 at about 2:30 p.m one person, appears to be
accused no. 3 illegally demanded said amount of money from her and she
was forced to sign a blank stamp paper and at the time of departure also
threatened her that the petitioner no. 1 would implicate her son with false
criminal cases. It is also alleged in the FIR that the incident of threatening
the opposite party no. 2 was witnessed by two of her neighbors who were
present at the scene. The opposite party no. 2 initially being fearful of their
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loss of prestige in the society did not reveal the incident, but subsequently
she lodged the written complaint.
18. Needless to say that in order to constitute an offence under section
384 of IPC the following ingredients are required to be established.
(i) The accused puts a person in fear of injury to such person or
any other person
(ii) The putting of a person in such fear must be intentional
(iii) The accused must thereby induce the person so put in fear to
deliver to any person any property, valuable security or
anything signed or sealed which may be converted into a
valuable security
(iv) Such inducement must be done dishonestly
19. On bare perusal of the contents of the FIR, it is clear that a prima
facie cognizable offence has been made out against the petitioners. The
investigating agency after conducting investigation has submitted its report
which also discloses that cognizable offence alleged against the petitioner
in the FIR have been established and the accused persons have been sent
up for trial.
20. Mr. Gangully learned Counsel appearing on behalf of the opposite
party no.2 has also streesed that in the charge sheet the investigating
agency has pointed out criminal antecedent of the petitioner no.1 about
commission of offence of extortion earlier.
21. It is true that though there are no limits of the power of the court
under section 482 of the Code but while dealing with such application, the
9court must apply the test as to whether the uncontroverted allegation as
made in the FIR and also the materials in the Case Diary, prima facie
establish cognizable offence against the accused person or not. In this
context court is also to consider certainly whether the allegations made in
the FIR or materials collected during investigation are absurd or inherently
improbable to constitute cognizable offence or not. As I have indicated
above that the allegations, the materials placed on record does not indicate
that the allegations made against the petitioners are so absurd and
inherently improbable that on the basis of which no prudent person can
even reach a just conclusion that there is no sufficient ground for
proceeding against the petitioners.
22. In a catena of decisions the Apex Court have cautioned that at this
stage the court cannot examine the fact evidenced and materials on record
to determine whether there is sufficient materials on the basis of which the
case would end in a conviction. On the contrary the court is concerned
primarily with the allegation taken as a whole whether they will constitute
an offence and whether continuance of the proceeding would be an abuse
of the process of the court leading to injustice.
23. In the present context the petitioners have attacked the impugned
proceeding contending that the petitioner no. 3 never came to West Bengal
at any time as he had no occasion to come and as the custom of Roka
ceremony was under way it was impediment on him to stay at home and as
such the question of extorting money is totally false and fabricated. In
order to substantiate such contention the petitioners heavily relied upon
the findings made during investigation of another case being Barkhamba
10Police Station Case no. 58 of 2018, which goes to show that on the alleged
date of incident i.e. 04.02.2018, the petitioner no.1 and the son of opposite
party no.2 were sharing cordial and healthy relationship. The petitioners
also heavily relied upon the finding made by the investigating officer in the
said case where investigation reveals that the petitioner no.1 along with her
parents and brother remain present whole day at Kailana Khas Gurudwara
on the alleged day i.e. 04.02.2018 and discussed the Roka Ceremony with
priest, though no Roka Ceremony had taken place on that day. The tower
locations as well as the video recording collected during investigation in
that Barkhamba Police Station case goes to show that the son of opposite
party no.2 met the petitioner no.1 between 25.05.2018 to 28.05.2018.
Accordingly the petitioners have taken the specific plea of alibi and
contended that on 04.02.2018, the question of extortion by the petitioners
at the scene is not sustainable.
24. The other part of the petitioners argument is that son of opposite
party no.2 and the petitioner no.1 met at Delhi on January 27, 2018 and
the son of the opposite party no.2 forcefully had sex with petitioner no.1 by
intoxicating her and thereafter refused to marry and for which the
petitioner no. 1 lodged a complaint alleging offences under section
376/328/506/509 of the IPC which was registered as aforesaid
Barkhamba Police Station case no. 58 dated 26.05.2018 and that out of
malice, the opposite party no.2 has initiated the present proceeding by
lodging the malafide complaint.
25. During the course of argument also the petitioner heavily relied upon
the aforesaid plea of their alibi to the effect that at the time of occurrence of
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the alleged offence i.e. on 04.02.2018 they were at different place in order
to discuss the Roka Ceremony of the petitioner no.1 with the son of
opposite party no.2. In this context Mr. Gangully learned counsel appearing
on behalf of the opposite party no.2 submits that it transpires from the
contents of second supplementary charge-sheet that on 08.06.2018 the
statement of the petitioner was recorded under section 164 Cr.P.C. wherein
she has stated that their Roka Ceremony was schedule to be held on
20.02.2018 and he further pointed out from the second supplementary
charge sheet that the petitioner no.1 subsequently deviated from her earlier
statement and repeatedly alleged in her subsequent complaints dated
12.08.2019 and 16.08.2019 that her Roka Ceremony schedule to have
taken place on 04.02.2018 at Rohtag, Haryana where her brothers and her
parents were all present and accordingly Mr. Gangully argued that the plea
of alibi have been created a year later in the Barkhamba Police station case
to made it a defence.
26. Needless to say that the plea of alibi taken by the petitioners and
heavily relied upon during hearing, is undoubtedly a pure question of fact.
Under the evidence Act the burden of that particular fact lies on the
petitioners who wishes the court to believe its existence, unless it is proved
by any law that the proof of that fact lies on any particular person. In this
context illustration B to section 103 of the Evidence Act may be quoted
which reads as follows:
“B wishes the court to believe that at the time in question, he was
elsewhere. He must prove it”.
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27. In such view of the matter, if the petitioners want to rely the plea of
alibi taken by them quoting from the investigation report in connection
with a different case, they can very well do so by leading evidence before
the trial court and in that case, prosecution will also have an opportunity
to cross examine the witness in order to unearth the truth. As stated
above, the allegations made in the FIR of the instant case as well as the
materials collected during investigation, if taken at their face value and
accepted in their entirety, it cannot be said that no prima facie cognizable
offence has been disclosed or it does not make out any case against the
petitioners. In fact while arguing their case for quashing the proceeding
invoking jurisdiction under section 482 of the Code, petitioners have placed
their defence case to be considered, in order to establish their case. They
have placed reliance on documents collected by a different investigating
agency in a different case that is Barakhamba Police Station case no. 58
dated 26.05.2018.
28. In a petition under section 482 Cr.P.C the High Court is not
supposed to examine the findings on several disputed facts and thereby to
allow the petition. The defence of the accused is to be tested after
appreciating the evidence during trial and at this stage High Court is not
required to go into the minute details on the allegations made by the
petitioners. In Rajiv Kourav Vs. Baisahab and others reported in (2020)
3 SCC 317 the Apex Court made significant observation in this context in
para 8 which may be reproduced below :-
8. It is no more res integra that exercise of power under Section 482
CrPC to quash a criminal proceeding is only when an allegation made in
the FIR or the charge-sheet constitutes the ingredients of the
offence/offences alleged. Interference by the High Court under Section
13482 CrPC is to prevent the abuse of process of any court or otherwise to
secure the ends of justice. It is settled law that the evidence produced by
the accused in his defence cannot be looked into by the court, except in
very exceptional circumstances, at the initial stage of the criminal
proceedings. It is trite law that the High Court cannot embark upon the
appreciation of evidence while considering the petition filed under Section
482 CrPC for quashing criminal proceedings. It is clear from the law laid
down by this Court that if a prima facie case is made out disclosing the
ingredients of the offence alleged against the accused, the Court cannot
quash a criminal proceeding.
29. In the said judgment the Apex Court further held that statements of
witnesses recorded under section 161 Cr.P.C. being wholly inadmissible in
evidence would not be taken into consideration by the court while
adjudicating a petition filed under section 482 of the Cr.P.C. It was held in
that judgment that the High Court committed error in quashing the
proceedings by assessing the statements recorded under section 161
Cr.P.C.
30. In Chandan Dhawan Vs. Jaharlal reported in (1992) 3 SCC 317 it
was observed by the Apex Court that when the materials relied upon by a
party are required to be proved, no inference can be drawn on the basis of
those materials to conclude the complaint to be unacceptable. The court
should not act while dealing with Application under section 482 Cr.P.C on
annexures which cannot be termed as evidence without being tested and
proved.
31. Therefore, on reading of FIR and the materials that are available in
two voluminous case diary, it cannot be said that no case is made out
against the petitioners, so as to quash the entire proceeding.
32. The other part of the allegation levelled by the petitioner, that the
statements/discussions/whats app chats as well as the conduct of the son
of the opposite party no.2 as well as the opposite party no.2 herself after
14lodging of the complaint at Barkhamba Police Station, itself goes to show
that the present case is a false one and has been made out for wrecking
vengeance upon petitioners and is a counterblast as the petitioner no.1 did
not withdraw the Barkhamba Police Station case.
33. In Jhandu Pharmaceutical Works Ltd. and Othes Vs. Md. Safiul
Haque reported in (2005) 1 SCC 122 the ratio laid down by Apex Court is
that the complaint has to be read as a whole and if it appears that on
consideration of allegations in the light of the statement made on oath by
the complainant, that the ingredients of the offence are disclosed and there
is no materials to show that the complaint is malafide, frivolous or vexous,
in that event there would be no justification for interference by the High
Court. It was further held when an information is lodged at the police
station and offence is registered, then the malafides of the informant would
be of secondary importance. It is the material collected during the
investigation and evidence laid in court which decides the fate of the
accused persons. The allegations of malafide against the informant are of
no consequence and cannot by themselves be the basis for quashing the
proceeding.
34. In the present case, it is true that there are serious allegations made
against the son of the complainant by the opposite parties and they have
been repeated with vehemence during the hearing but I am not supposed
to examine them on merit. Though the whole attitude in registering an
offence and directing investigation into the offence has been questioned by
the petitioners but I must point out that as the information lodged in the
police station and as materials available in the case diary during
15investigation prima facie discloses cognizable offence against the
petitioners, the malafide of the informant, if any shall be considered by
Trial Court at the appropriate stage. In fact the documents sought to be
relied on by the petitioners to prove their contention of malicious
prosecution are personal in nature and the private documents are required
to be tested during trial. Those documents are also not certified copy of
public documents under section 76 of the evidence Act and are not part of
the prosecution case by which court can come to a finding regarding the
allegation of malicious prosecution.
35. It is settled law that at this stage only the complaint and the
accompaniments are to be looked into, to come to conclusion whether a
prima facie case of cognizable offence has been made out or not. The court
is not supposed to conduct mini trial at this stage to evaluate the
evidentiary value of those documents which is the duty casted upon the
trial judge. For the limited purpose the court can evaluate materials and
documents available in record but the court cannot appreciate the
evidence, to conclude the complaint to be unacceptable. Accordingly
though the contention of the petitioner is that the present case is a
counterblast to the proceeding initiated by the petitioner no.1 against the
son of opposite party no.2, but the court is not supposed to enter into that
factual arena and decide whether the allegations are correct or not.
36. In view of aforesaid discussion I find nothing to conclude that the
prosecution has been failed to make out any case against the petitioners to
quash the entire proceeding.
37. CRR 1924 of 2018 thus stands dismissed.
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38. However, while rejecting the contention of the petitioners so far
quashing of the proceeding is concerned I give them liberty to raise all their
defence as may be available to them in accordance with law at the time of
framing of charge and at that stage the court shall consider the materials
on record as also the contention raised by the petitioner in proper
perspective and decide the matter in accordance with law. I also make it
clear that the observation made herein would not be in any way shall be
construed as the view of the High Court with regard to the merit of the case
or the defence of the petitioners.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(Dr. AJOY KUMAR MUKHERJEE, J.)
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