Calcutta High Court (Appellete Side)
Prabir Roy vs Parag Mukherjee on 17 June, 2025
2025:CHC-AS:1041
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRR 1720 of 2017
With
IA No. CRAN 14 of 2025
Prabir Roy
Vs.
Parag Mukherjee
With
CRR 4316 of 2022
Prabir Roy
Vs.
Parag Mukherjee
For the petitioners : Mr. Moyukh Mukherjee
Mr. Pritam Roy
Ms. Sarmistha Basak
For the opposite party : Mr. Anand Keshri
Ms. Soumili Chaudhuri
Ms. Pubali Debnath
Heard on : 17.03.2025
Judgment on : 17.06.2025
Dr. Ajoy Kumar Mukherjee, J.
1. The present application being CRR 1720 of 2017 has been preferred
with a prayer for quashing of the proceeding being complaint case no.
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C/11369 of 2011, initiated under sections 219/500/34 of IPC presently
pending before learned 9th Judicial Magistrate Alipore.
2. It is submitted that during pendency of a civil dispute between the co-
sharers of the joint undivided paternal property, situated at 3, Sarat Bose
Colony, on 23rd January, 2017 and 13th February, 2007 paternal uncle of
the opposite party Prantosh Mukherjee and cousin brother of opposite party
Snehasish Mukherjee received two notices from the Sub-Divisional
Magistrate Alipore, which discloses that police officer of Kasba police
station filed two reports under Kasba P.S. PR. No. 864 of 2006 and 867 of
2006 dated 30.12.2006 and 2nd November, 2006 respectively and prayed for
issuance of process under section 107 of the Cr.P.C. against said Prantosh
and Snehasish. It is further case of the opposite party that curiously the
Sub Divisional Magistrate Alipore initiated a proceeding under section 107
of Cr.P.C. against the complainant herein Parag Mukherjee also on the basis
of a police report being Kasba P.R. No. 1005 of 2006 dated 28.12.2006.
Opposite party obtained a certified copy of said police report dated
28.12.2006, wherefrom it appears that without any specific allegation police
implicated the opposite party in the said case. Not only that in the said
police report complainant/opposite party Parag Mukherjee was described as
an accused and without any specific allegation against the petitioner, it was
written therein that the accused including the said Parag Mukherjee are
‘desperate and dangerous in nature’ and are liable to be prosecuted under
section 107 of the Code of Criminal Procedure. It is further case of the
opposite party that said Pranotosh and Snehasish moved a criminal revision
petition being CRR 867 of 2007 before this High Court and by an order
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dated 25 June, 2008, the said proceeding under section 107 of Cr.P.C. was
th
quashed. Further cases of the opposite party is that since the opposite party
herein acted as an Advocate of aforesaid Pranotosh Mukherjee and
Snehasish Mukherjee, the police submitted the said false report against the
opposite party herein to initiate the prosecution under section 107 of Cr.P.C.
and on the basis of said police report learned Magistrate issued notice
asking the opposite party to show cause as to why he should not be ordered
to execute a bond for maintaining peace and good behaviour in the locality
for a period of one year.
3. The grievance of the opposite party which prompted him to initiate
proceeding under section 219/500/34 is that the petitioner herein as police
officer defamed the opposite party/complainant, who is an Advocate, in the
eyes of the public as well as his clients. The intention of the police was to
ruin the professional career of the petitioner. His further case is that there is
no allegation against the opposite party herein but even then he was
described as a man of desperate and dangerous nature. Further grievance of
the opposite party/complainant is that such sort of remarks and/or
allegation against him caused serious damage to his reputation and
professional dignity and social prestige. Because of such proceeding
complainant had to appear before the High Court as an accused and
complainant’s clients and friends enquired him as to why police had filed
the said report against him. Many others have developed bad impression
about the complainant/opposite party because of the said false and
malicious report of the police. His further case is because of initiation of
proceeding under section 107 of the Code, two of the petitioners clients
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namely Smt. Ruma Chakraborty and Shri Pradip Das by writing letter dated
07.12.2009 and 13.03.2010 took back their briefs from the petitioner. When
the letter of Smt. Ruma Chakraborty was reached to the petitioners
chamber, at that time one of his colleague lawyer namely Santanu
Mukherjee and one of his relative namely Pradip Kumar Pandey and one of
his client Sri Sukhendu Mazumder were present in his chamber. On the
request of the complainant the said letter of Ruma Chakraborty containing
allegation against the petitioner was read over by said Advocate Santanu
Mukherjee. As such he prayed before magistrate for initiating proceeding
under section 209 and 500 of IPC and learned Magistrate took cognizance
and thereafter by an order dated 15.12.2011 observed as follows:-
“Complaint is received under section 200 Cr.P.C. Perused the order of Hon’ble
High Court being annexure 12. Considering order of Hon’ble High Court
process under section 209/500/34 IPC is issued. Issue summon to the
accused. Requisite at once. To 02.02.2012 for S/R and A/D.”
4. So far as the other proceeding in connection with CRR 4316 of 2022 is
concerned it pertains to the allegation that said accused Prabir Roy ex
inspector-in-charge of Kasba police station by describing the complainant as
man of desperate and dangerous in nature filed false report and thereby
caused serious damage to the complainant as his intention was to ruin the
professional career of the complainant. The said Prabir Roy and his
associates in collusion with each other submitted the false report with
criminal intention to cause huge loss to the opposite party herein for their
personal gain and as such present petitioner Prabir Roy and his associates
are also guilty of committing offence.
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5. Being aggrieved by the said proceedings Mr. Mukherjee leaned
Counsel appearing on behalf of petitioner Prabir Roy submits that even if
the story narrated by the opposite party in the complaint is accepted to be
the gospel truth then also the placements of facts singularly lacks either of
the ingredients of the offence alleged. He further submits that mere
mentioning of relevant sections and language of those sections is not
sufficient. Particulars of offence committed by each accused person and role
played by them in committing that offence needs to be stated. In the instant
case the incidents discloses in the petition of complaint do not make out any
contravention of the provisions of the IPC and as such no offence under the
said section can be said to have been made out. The proceeding has been
initiated just to harass the petitioner with malafide intentions and with
ulterior motive of wrecking vengeance on the other side.
6. He further argued that in the instant proceeding the order taking
cognizance of the cases do not reflect application of judicial mind. The order
issuing process itself states that complainant was examined and thereafter
only after perusing the order of the High Court which relates to order of
quashing of proceeding under section 107 of the Code dated 25.06.2008, the
process has been issued by the Magistrate in a whimsical manner, without
applying judicial mind as if High Court has asked him to initiated instant
proceeding. Infact before issuance of process learned Court below only
considered the statement of the complainant and the order of quashing of
proceeding under section 107 of the Cr.P.C. passed by the High Court. Such
consideration is bereft of any legal standing and is baseless because prime
consideration required while issuing summon is the satisfaction of the
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learned magistrate that the complainant prima facie satisfied the court that
a case has been made out and there are reasonable grounds to proceed
against the petitioner.
7. He further argued that the quashing of section 107 Cr.P.C proceeding
by the High Court has no relevance for consideration of issuance of process
in a criminal proceeding which has been initiated with malafide intention.
High Court no where suggested in his order dated 25.06.2008 to initiate any
such proceeding against petitioner which the court below failed to
understand and furthermore the order of quashing is no way related and
has no implication for initiating such proceeding. The malafide and
malicious intent of the opposite party is clearly reflected from the mere
perusal of the mode and manner, in which the instant case has been given a
shape and colour of criminal proceeding. Petition of complaint itself
discloses that the police authorities were discharging their official duties as
police officer and there is no specific allegation against the petitioner which
may constitute any such offence as alleged. In the said proceeding under
Section 107 Cr.P.C the petitioner herein was only discharging his duties and
as he was directed to submit report before the concerned magistrate, the
petitioner had only submitted what had surfaced during investigation. He
further said that the result of investigation if found against a person, the
same cannot be said to have made to defame the said person.
8. He further argued that under the amended sub section (1) of section
of 202 Cr.P.C., it is mandatory upon the Magistrate that before summoning
the accused residing beyond his jurisdiction, he shall enquire into the case
himself or direct the investigation to be made by a police officer or such
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other person as he thinks fit for finding out whether or not, there is
sufficient ground for proceeding against the accused. In the present case
such mandatory provision has also not been followed, while process was
issued under section 204 Cr.P.C., against all the accused persons. Petitioner
accordingly prayed for quashing of the impugned proceeding qua the
petitioner.
9. I have considered submission made by both the parties .
10. As held in Subrmanian Swamy Vs. Union of India, reported in
(2016) 7 SCC 221 to constitute the offence of defamation there has to be
imputation and it must have been made in the manner as provided in the
provision with the intention of causing harm or having reason to believe that
such imputation will harm the reputation of the person about whom it is
made. Therefore, causing harm to the reputation of a person is the basis on
which the offence is founded and mens rea is a condition precedent to
constitute the said offence. Moreover the complainant has to show that the
accused has intended or known or had reasons to believe that the
imputation made by him would harm the reputation of the complainant. The
criminal offence emphasizes the intention to harm and section 44 IPC
defines injury which denotes any harm whatever illegally caused to any
person in body, mind, reputation or property. Therefore the word injury
encapsulates harm caused to the reputation of complainant.
11. Here in the present case admittedly the petitioner herein was asked to
submit a report in a proceeding initiated under section 107 of Cr.P.C., where
in the course of official business as per direction of the Magistrate, petitioner
as police officer submitted his report. In such circumstances complainant
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was required to show that the petitioner herein had intended or had reason
to believe to cause harm the reputation of the complainant and thereby
injury caused to his reputation. The order taking cognizance of the offence
clearly shows that the magistrate in a typed order after striking “section 138
of the N.I. Act” put section 219/500/34 of the IPC and thereby took
cognizance. Moreover, the complainant had not examined any other witness
to show that it had actually caused injury or harm to his reputation. Though
some of the accused resides outside the jurisdiction of the court the
Magistrate also blatantly flouted to comply the mandatory provision of
section 202 of the Cr.P.C.
12. Needless to repeat that the allegation of the complainant in connection
with the proceeding under section 107 of the Code, is that the petitioners
submitted a report where he stated that the complainant is a man of
dangerous and desperate in nature to public peace and tranquillity which
allegedly caused damage to the reputation of the complainant. Mere
mentioning in the report that the complainant is a dangerous and desperate
person is not per se defamatory. There must be some prima facie evidence
that in the estimation of the general public by such imputation, the
reputation of the complainant has been harmed or lowered down. In the
present case the complainant in support of his allegation only examined
himself and no other person was examined under section 200 of the Code of
Criminal Procedure. None of the persons mentioned in the complaint were
examined nor has made statement before the court, that due to such
mentioning in the report by the police, that the opposite party herein is a
dangerous and desperate person, the moral or intellectual character of the
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complainant has been lowered down in their estimation and thereby his
reputation has been harmed. In the absence of any such statement by the
alleged witnesses that due to such imputation the reputation of the
complaint has been lowered down in the estimation of the public it is of no
use to make out an offence of defamation. No such witness was examined in
whose estimation the reputation of the complainant has been lowered down
due to such alleged imputation made by the accused.
13. In Dipankar Bagchi Vs. State of West Bengal, reported in (2010) 1
CCR.L.R (Cal) 403 this court held that moral and intellectual character of
the complainant must be lowered down in the estimation of the witness and
only then his reputation may be treated to have been harmed. Explanation
(4) of section 499 of the IPC states that no imputation is said to harm a
person’s reputation, unless that reputation directly or indirectly, in the
estimation of others lowers the moral or intellectual character of that person
or lowers the character of that person in respect of his caste or of his calling
or lowers the credit of that person or causes it to be believed that the body of
that person is in a loathsome state or in a state generally considered as
disgraceful.
14. This court in M/S Nishka Properties (pvt). Ltd. & anr. Vs. State of
West Bengal reported in (2014) 1 AICLR 1018 held that defamation is a
species of which mens rea is the genesis. Any sort of allegation with a touch
of imputation against any person per se cannot be categorised as
defamation. There is nothing to show in the proceeding that the petitioner
has any mens rea for making any such imputation. The inference of the
complainant/opposite party that due to any such imputation, his reputation
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has been lowered down in the estimation of the public is of no use to make
out an offence of defamation, in the absence of examination of any such
witness and also in the absence of making inquiry by the learned
magistrate. Surprisingly the magistrate had also issued summon without
meeting the mandatory requirement of section 202 of Cr.P.C., though the
accused persons are residing outside his territorial jurisdiction. The
provisions of section 202 of Cr.P.C. was amended in 2005 making it
mandatory to postpone the issue of process where the accused resides in an
area beyond the territorial jurisdiction of the Magistrate concerned. The
same was found necessary in order to protect the innocent persons from
being harassed and making it obligatory upon the Magistrate to enquire into
the case himself or to direct investigation to be made by a police officer or by
such other person as he thinks fit for the purpose of finding out whether or
not there was sufficient ground for proceeding against the accused before
issuing summon in such cases.
15. There is also nothing to show that the petitioner herein in his report
has pronounced anything corruptly or maliciously or contrary to law
knowing it to be so. There is also nothing to show that the report has been
proved to be a false one causing huge loss to the complainant in order to
make any personal gain for the petitioner to continue any proceeding under
sections 193/196/199/200/209/211/120B of IPC to proceed under section
340 Cr.P.C.
16. Inherent power of High Court under section 482 Cr.P.C is to be
exercised with the purpose and object of advancement of justice. If it is
found that the process of the court is sought to be abused by a person with
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some oblique motive, the High Court has to interfere with the proceeding.
From the facts of the present case and materials placed before me I find that
there are sufficient reason to believe, in view of aforesaid discussion, for not
allowing the proceeding any further as in case of both the proceedings
category (1),(3),(7) of paragraph 102 of the salutary Judgement of State of
Haryana Vs. Bhajan Lal, reported in 1992 Supp (1) SCC 335, clearly
attracts.
17. In such view of the matter CRR 1720 of 2017 is allowed. The
impugned proceeding being complaint case no. C/11369/11 presently
pending before 9th Judicial Magistrate Alipore is hereby quashed qua the
petitioner Prabir Roy.
18. Accordingly CRR 4316 of 2022 is also allowed and thereby the
proceeding under section 340 of Cr.P.C. before Sub divisional Magistrate
Alipore being misc. Case no. 1 of 2015 is hereby quashed qua the petitioner
Prabir Roy.
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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