Calcutta High Court (Appellete Side)
Nisar Ahmed @ Mohammad Nisar Ahmed vs State Of West Bengal & Anr on 11 April, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE UDAY KUMAR
CRR 3824 of 2022
Nisar Ahmed @ Mohammad Nisar Ahmed
-VS-
State of West Bengal & Anr.
For the Petitioner : Mr. Imtiaz Ahmed
Mrs. Ghazala Firdaus
Mr. Sk. Saidullah
Mr. Mithun Mondal
Mr. Md. Arsalan
For the State : Mr. Debasish Roy, P.P
Mr. Arijit Ganguly
Ms. Debjani Sahu
Hearing concluded on : 28.03.2023
Judgment on : 11.04.2025
UDAY KUMAR, J.: -
1.
The petitioner prayed for quashing of proceedings of G.R. Case No. 357 of
2020, arising out of Jorasanko Police Station Case No. 67 of 2020 dated
18th March 2020, the charge-sheet being No. 168/2020 dated 29th July,
2020 and all orders passed therein by Learned Metropolitan Magistrate,
15th Court, Calcutta, where the proceeding is pending.
2. Brief facts of this case are that opposite party no.2 Yusra Akhter lodged a
written complaint to the Officer-in-charge of Jorasanko Police Station at
around 15.55 hour on 18th March, 2020, that Nisar Ahmad obstructed
her way in front of Premises No. 16, Zakaria Street, Kolkata-700073.
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When she objected him from doing so, petitioner insulted her by slapping
and outraged her modesty by abusing in public view, out of anger.
3. The Officer-in-Charge of the police station started Jorasanko P.S. Case
No. 67/20 under Sections 341/509/354 of Indian Penal Code 1860,
against the petitioner, on 18th March, 2020, and he endorsed it to S.I.
Sabiruddin, for investigation. The investigation was culminated into
charge-sheet filed under Sections 341/509/354 of Indian Penal Code,
1860 on 29.07.2020, upon which Learned Metropolitan Magistrate, 17th
Court Calcutta taken cognizance of the offences under same sections.
4. Petitioner prayed for quashing of entire proceedings on the ground that
he was falsely implicated in this case out of grudge and enmity.
5. Mr. Imtiaz Ahmed, Learned Counsel for the petitioner contended that
petitioner was the private tutor of Yursra Akhter/opposite party no.2,
and had some outstanding tuition fee with her. He visited her earlier for
said money, but she refused. Their relation became bitter on this issue,
which triggered opposite party no.2, and Sajid Akhter, Firoz @ Guddu to
obstruct the way of petitioner near 6, Raj Mohan Street in the evening of
04th March, 2020, abused him in filthy language, and to assault him with
fist and blow, which caused him bleeding injuries. He visited hospital for
the treatment of said injuries. Petitioner informed the entire incident to
the Officer-in-Charge of Jorasanko Police Station at about 4.45 pm on 4th
March, 2020, upon which Jorasanko Police Station Case No. 357 of
2020, dated 4th March, 2020 was started against Yusra Akhter, Sajid
Akhter, Firoz @ Guddu under Sections 341/323/506 /114 of Indian
Penal Code, 1860, however investigation was culminated into final report.
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6. Mr. Ahmad further stated that instant case was initiated against
petitioner on the written complaint of the opposite party no.2 lodged to
the Officer-in-Charge of Jorasanko Police Station on 18th March, 2020,
out of vengeance. Since petitioner was falsely implicated in this
proceeding, it is liable to be quashed in the light of proposition of law
decided under Paragraph No. 12 of Akanksha Katiyar and others v. State
of U.P. and others (2024 SCC Online All 3141). The order of the
cognizance taken by the Learned Magistrate is based on the statements
recorded by investigating officer during faulty investigation, is also
deserved to be quashed in the light of observations made under
Paragraph No. 6 in Alauddin & Ors v. the State of Assam & Anr. (Criminal
Appeal No. 1637 of 2021).
7. At last, he relied on the grounds for quashing of a criminal proceeding
discussed under paragraph 102 of Bhajan Lal’s case, has been reiterate
under paragraph No. 11 of Mahmood Ali Ors. v. State of U.P. & Ors.
(Criminal Appeal No. 2341 of 2023).
8. Therefore, Mr. Ahmad prayed for quashing of impugned proceeding
initiated on the false allegations of opposite party no.2 against the
petitioner with intention to harass him, out of vengeance.
9. Mr. Debasish Roy, Learned P.P. submitted that the petitioner and
opposite party no.2 had a relationship of teacher-pupil. Subsequentially
their relationship turned hostile, over demand of outstanding tuition fee.
Consequently, petitioner lodged a case against opposite party no.2 on
04.03.2020, while opposite party no.2 lodged her case against petitioner
on 18.04.2020 and case counter-case may be a good ground to draw a
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presumption of false implication, but it cannot held in simpliciter, merely
on the basis of the facts on record, without passing through the process
of trial. Prima facie, sufficient material is available on record. The
disputed question facts are involved in this case which should be decided
by the Trial Court on the basis of the evidences adduced by the
witnesses.
10. He further submitted that power of quashing should be used sparingly,
only to discharge complete and substantial justice. As such he prayed for
dismissal of this application, as sufficient material is available on record
against the petitioner.
11. The main question involve in this case for determination is that how far a
previous prosecution, or case-counter case or prevailing strenuous
relationship between the party, would affect the sanctity of a proceeding?
12. Admittedly, petitioner was the private tutor of opposite party no.2. The
dent appeared in their relationship on the claim of outstanding tuition fee
left with opposite party no.2 and she avoided to pay the same even after
repeated claim.
13. On this issue, opposite party no.2, restrained the way of petitioner,
abused him and assaulted him with fist and blow on 04.03.2020, which
was registered as Jorasanko Police Station Case No. 357 of 2020, against
Yusra Akhter, Sajid Akhter, Firoz @ Guddu under Sections 341/323/506
/114 of Indian Penal Code, 1860, but final form was submitted by I.O.
after investigation.
14. After gap of 14 days impugned case was registered with the same police
station on the complaint of opposite party no.2 against the petitioner that
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he restrained her way, slapped her and abused her publically to outrage
of modesty. As per petitioner, she filed her complaint out of vengeance to
harass him by implicating him falsely in this matter.
15. Opposite party no.2 stated in her statement recorded by I.O. under
Section 161 of Code of Criminal Procedure, 1973, that when she was
walking along the Zakaria Street, her ex-tutor Nisar Ahmed came in front
of her, obstructed her path, pushed her back, twisted her hand and when
she requested him to let her go, he slapped her in left chin, abused her
and threatened her to kill at the date, time and place of occurrence.
Then, she raised alarm. Hearing her alarm Abdul Quddus, Md. Farhar,
Md. Khalid Khan gathered. They took her to police station. Petitioner
harassed her earlier as well.
16. The witnesses Abdul Quddus, and Md. Farhar stated to the I.O that on
18.3.2020 at around 3.55 pm they were standing at 16, Zakaria Street,
and Yusra Akhter was walking along Jakaria Street. Suddenly petitioner
obstructed her way, abused her with filthy language, slapped her when
she protested and outraged her modesty. Similarly, Md. Khalid Khan
stated that at that time he was taking tea on footpath when petitioner
suddenly came in front of Yusra Akhter who was walking along the
Jakaria Street and obstructed her way, started abusing her with filthy
language and when she protested, the person slapped her thereby her
modesty was outraged.
17. Prima-facie, sufficient material appears from the written complaint and
the statement of witness recorded under Section 161 of Code of Criminal
Procedure, 1973. The element of veracity of allegations or false
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implication could only be ascertained, on the basis of the evidences
adduced by witness on oath before the Trial court.
18. Referring the ratio expressed under paragraph 12 of Akanksha Katiyar
case (supra) wherein, criminal proceeding was quashed on the basis
proven unfriendly relationship between spouses, for the quashing of this
proceeding as it has also been initiated out enmity inculcated between
the parties.
19. But the ratio is not applicable for any relationship except the relationship
of spouses, where retaining cordial relationship between the parties are
general presumption. If spouse fails to maintain cordial relationship that
should be considered for quashing of proceeding pending between them
out of said strenuous relationship between them. In view of uncordial
relationship persisted between the spouses, the proceeding initiated out
of such relationship was rightly quashed. But the parties of this
proceeding are not spouses nor they were related to each other in any
manner, except the formal relationship of tutor-pupil. So, cordiality in
their relationship was not a factor which may attract the ratio of the
above cited case.
20. The statements of witnesses recorded under Section 161, 162 and 164 of
Code of Criminal Procedure, 1973, written complaint, seizure lists etc.
are important material on record shall be used for determination of any
question, prima facie, at pre-trial stage, and they can be used for the
purpose of corroboration and contradiction of facts as per Section 145 of
the Indian Evidence Act, 1872 (1 of 1872).
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21. Therefore, the evidentiary value of Section 161 and 162 of Code of
Criminal Procedure, 1973 has been discussed in Alauddin & Ors (Supra)
would not be applicable here as is not in dispute. It was rightly
considered by Learned Metropolitan Magistrate 17th court for taking
cognizance. Such statements are at pretrial stage for these purposes.
Therefore, I do not find any relevancy of the proposition laid down in this
case, at this stage.
22. In paragraph No. 11 of Mahmood Ali Ors. v. State of U.P. & Ors.
(Criminal Appeal No. 2341 of 2023) the parameters for quashing of an
FIR have been discussed. It is represented as follows:-
“11. The entire case put up by the first informant on the face of it appears
to be concocted and fabricated. At this stage, we may refer to the State of
Haryana v. Bhajan Lal, AIR 1992 SC 604. The parameters are:
“(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information report and other materials,
if any, accompanying the FIR do not disclose a cognizable offence.
justifying an investigation by police officers under Section 156(1) of the
Code except under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever
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reach a just conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of
the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite
him due to private and personal grudge.”
23. The parameters enumerated in State of Haryana v. Bhajan Lal, AIR 1992
SC 604, would be applicable only in the case where it appears on the face
of complaint that it is concocted and fabricated one. A complaint can be
quashed where the allegations made in the complaint, even if they are
taken at their face value and accepted in their entirety, do not prima facie
constitute any offence or make out the case alleged against the accused,
or where a clear abuse of the process of the Court, or when the criminal
proceeding is found to have been initiated with malafide intention or
malice for wreaking vengeance or to cause harm, or where the allegations
are absurd and inherently improbable, and where the complaint is bereft
of basic facts which are necessary for making out the offence.
24. High Court empowers to quash a proceeding only to give effect to any
order under this Code, or to prevent abuse of the process of any Court, or
to secure the ends of justice, but this power should not be used to stifle a
legitimate prosecution, rather it should be used sparingly and with
abundant caution.
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25. For this purpose, I examined the complaint as a whole, and considered
on the statements of the witness recorded under Section 161 of Code of
Criminal Procedure, 1973 to gauge whether complaint, prima facie
constitutes any offence or make out the case alleged against the
petitioner or not. The complaint discloses as to the existence of strenuous
relationship between the parties. Filing of case and counter case,
definitely, does not show a healthy relationship between them. Defence
as to the existence of previous prosecution, or case-counter case or
prevailing strenuous relationship between the party or enmity cuts both
ways. It totally depends on the material available on the records. When it
appears from the material on record that prima facie, there is sufficient
proof available in support of the allegation, the case shall not be quashed
and should be decided by the trial court. In addition to that, investigating
officer submitted charge sheet on the basis of the proofs collected against
petitioner, is also sufficient to negate the prayer of petitioner.
26. In view of the above deliberations, I can conclude that mere plea of
previous prosecution, or case-counter case or prevailing strenuous
relationship between the party, would not affect the sanctity of a
proceeding. Everything would depend on the content of the complaint.
27. Moreover, the abuse of process of court, could not be held ipso facto,
mere on the plea of false implication. In such situation, it would always
be preferrable to let the matter decided by Trial Court.
28. Therefore, I do not find any merit in this revisional application.
29. Accordingly, the C.R.R 3824 of 2022 is dismissed.
30. There is no order as to the cost.
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31. Interim order, if any, stands vacated.
32. Urgent Photostat certified copy of this order, if applied for, be given to the
parties, as expeditiously as possible, upon compliance with the necessary
formalities in this regard.
(Uday Kumar, J.)