Punishment upheld for criminal force against women : High Court Of Calcutta

 IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION THE HON’BLE JUSTICE TIRTHANKAR GHOSH C.R.R. 8515 Ramesh Chand Singh & Ors. vs. The State of West Bengal & Anr. For the State For the Petitioners Mr. Sekhar Basu Sr. Adv. Mr. Shiladitya Banerjee Mr. Arijit Ganguly Mr. Sandip Chakraborty Heard on : 17.08.2021 01.09.2021 and 07.09.2021 Judgment on Tirthankar Ghosh J: The present revisional application has been preferred challenging the proceeding relating to Burrabazar Police Station case no. 8014 dated 22.12.2014 under Sections 354 114 of Indian Penal CodeOne fired tinted bullet head. 2) One empty cartridge having inscription ‘KF 765’ on its back. The Second seizure list which was prepared in reference to the same G.D.E. no on the same place referred the following items: “One improvised iron made pistol measuring about 7½ inches ii) One live cartidge loaded in the barrel of item no. i. iii) One magazine case. iv) Four live cartridges loaded in the magazine.” The investigating Agency on conclusion of investigation submitted charge sheet on 22nd January 2015 under Section 307 of the Indian Penal Code incorporating the said seizure items and relying upon 17 witnesses to prove its case. Subsequently the investigating authorities also submitted a supplementary charge sheet on 31.03.2015 and the same was after receiving FSL report and the sanction from the concerned authorities under Section 25(1B)(a) 27 of the Arms Act. The investigating Agency in course of investigation in connection with this case also relied upon materials regarding the previous conduct of the said Sandeep Upadhaya which reflected that earlier in connection with Asansole GRPS case no. 03 12 dated 14.01.12 one revolver and three rounds ammunitions were seized. The present case which is subject matter of challenge i.e. Burrabazar Police Station case no. 809 dated 22.12.2014 under Section 354 114 of the Indian Penal Code was in reference to General Diary entry no. 2142 at 20.10 hours and the date of occurrence refers to 18.10.2014 at 21.30 hours. The crux of the allegation in the complaint dated 22.12.2014 which was initiated by one Seema Upadhaya wife of the said Sandeep Upadhaya reference has been made to the incident of 18.12.2014 at about 09.30 PM and she alleged that Ramesh Chand Singh Santosh Singh and Umesh Singh along with four five associates used vulgar languages at her threw away her household articles and when objection was raised the above named persons tried to tear away her wearing apparels and also used physical force thereby assaulting her. The complainant also alleges of molestation by the present petitioners who had inappropriately touched her private parts and tried to disrobe her. It has further been alleged that she was thrown at the ground and when her mother in law came to her rescue the petitioners also used physical force upon her mother in law and molested her by using criminal force. The materials collected during the investigation also reflected that the statement under Section 164 of the Code of Criminal Procedure of Seema Upadhaya was recorded before the learned Magistrate. The contentions which are reflected in the statement are that the complainant reported to her husband that she was teased at the street when her husband went to the said persons he was assaulted and when the complainant and her mother in law tried to prevent such assault being inflicted upon her husband her mother in law was thrown away and she was removed by holding the tuft of her hair. There is a gulf of differences between the allegation wherein the complainant never alleged regarding outraging her modesty or her wearing apparels being torn or she was attempted to be disrobed by the accused persons. Mr. Basu learned Senior advocate by drawing the reference and analogy in respect of the time and place of occurrence as well as the involvement of the complainant and the petitioners emphasized that the present case being Burrabazar PS no. 809 2014 was registered pursuant to the complaint lodged by the wife of the accusedafter about 3 4 days of the incident. According to the learned Senior advocate the present case has been initiated in order to create circumstances for defence by the accused as the complainant along with his father and brother had been roped in the instant case with an ulterior motive for wreaking vengeance and for settling of her private and personal grudge. Mr. S. Chakraborty learned advocate appearing for the State opposes the contentions advanced by Mr. Basu and submitted that the allegations in the FIR taken as a whole makes out an offence thereby calling upon the accused persons to face trial in a Court of Law. Learned advocate for the State has also drawn the attention of this Court to the statement of the witnesses as also the statement of the complainant under Section 164 of the Code of Criminal Procedure which was stated before the learned Magistrate. I have taken into account the contentions advanced by both the parties and also considered the judgment of the Hon’ble Supreme Court in Vineet Kumar and Ors. Vs. State of Uttar Pradesh and Anr. reported in 13 SCC 369 and Ahmad Ali Quraishi and Anr. Vs. State of Uttar Pradesh and Anr. reported in 2020) 13 SCC 435. The learned Senior Advocate for the petitioners has also drawn the attention of this Court to an un reported judgment of this Court being Rajkumar Mondal @ Raja Vs. The State of West Bengal where by relying upon the aforesaid two judgments of Hon’ble Supreme Court proceedings were quashed. In Vineet Kumar the Hon’ble Supreme Court relied upon State of Karnataka Vs. L. Muniswamy and Ors. 2 SCC 699 and reminded the powers of the High Court vested under Section 482 Cr.P.C. by referring to paragraph 7 of the said judgment which is as follows: “7. … In the exercise of this wholesome power the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court s inherent powers both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case the veiled object behind a lame prosecution the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.” The Hon’ble Supreme Court also relied upon State of Haryana and Ors. Vs. Bhajan Lal and Ors. 1992 SCC426 and relied upon the categories of cases where power can be exercised under Section 482 of Cr.P.C. which is available in paragraph 102 of the said judgment and is as follows: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be 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. 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 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 Act concerned to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the Act concerned 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.” The Hon’ble Supreme Court also referred to State of Karnataka Vs. M. Devendrappa 3 SCC 89 and relied upon paragraph 6 and 8 of the said judgment which are as follows: “6. … All courts whether civil or criminal possess in the absence of any express provision as inherent in their constitution all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit concedere videtur et id sine quo res ipsae esse non potestSCC 335 : 1992 SCC Cri) 426] .” Before arriving at its conclusion the Hon’ble Supreme Court also relied upon Priya Vrat Singh and Ors. Vs. Shyam Ji Sahai 8 SCC 232 Janata Dal Vs. H.S. Chowdhary and Anr. 4 SCC 305 Dr. Raghubir Saran Vs. State of Bihar and Anr. AIR 1964 SC 1 and Minu Kumari and Anr Vs. State of Bihar and Ors. 4 SCC 359. Paragraph 41 of Vineet Kumarobserved as follows: “41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan LalSCC 335 : 1992 SCC 426] . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan LalSCC 335 : 1992 SCC Cri) 426] which is to the following effect :“102. 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.” Above Category 7 is clearly attracted in the facts of the present case. Although the High Court has noted judgment of State of Haryana v. Bhajan LalSCC 335 : 1992 SCC426] but did not advert to the relevant facts of the present case materials on which final report was submitted by the IO. We thus are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.” On an appreciation of the facts of the case and with reference to paragraph 102 category 7 of Bhajan Lal the Hon’ble Supreme Court was pleased to quash the proceeding in Vineet Kumarcase. In Ahmad Ali Quraishiby referring to Vineet Kumarcase and similar set of cases relied upon in Vineet Kumar case in paragraph 23 of the said judgment the Hon’ble Supreme Court observed as follows: “23. In the facts of present case we are fully satisfied that present is a case where criminal proceedings have been initiated by the complainant with an ulterior motive due to private and personal grudge. The High Court although noticed the judgment of this Court in State of Haryana v. Bhajan LalSCC 335 : 1992 SCC Cri) 426] in the impugned judgment but did not examine the facts of the case as to whether present is a case which falls in any of the category as enumerated in Bhajan Lal caseSCC 335 : 1992 SCC426] . The present case clearly falls in Category of Bhajan Lal caseSCC 335 : 1992 SCC 426] and the High Court failed to exercise jurisdiction under Section 482 CrPC in quashing the criminal proceeding initiated by the complaint.” This Court also in an un reported judgment of Rajkumar Mondal followed the dictum laid down by the Hon’ble Supreme Court in Vineet Kumar supra) and Ahmad Ali Quraishi case and in the factual backgrounds and circumstances of the said case quashed the proceedings. The present case involves three petitioners namely Ramesh Chand Singh Santosh Singh alias Vicky and Rohit Singh alias Ricky. The petitioner no.1 happens to be the father and the petitioner nos. 2 and 3 happen to be the two sons of Petitioner no.1. The factual matrix of the case reflects that the case was initiated when the husband of the complainant was taken into custody in connection Burrabazar P.S. case No. 792 dated 19.12.2014 under Section 307 of Indian Penal Code and Section 25 27 of the Arms Act the circumstances reflect that the case was instituted maliciously with an ulterior motive for wreaking vengeance on the accused petitioner and with the view to spite them because of private and personal grudge. The case therefore warrants invoking the powers of this Court under Section 482 of the Code of Criminal Procedure as the continuance of the same is an abuse of the process of law and is bound to cause miscarriage of justice. Thus all further proceeding relating to Burrabazar P.S. Case No. 809 14 dated 22.12.2014 under Section 354 114 of the Indian Penal Code pending before the learned Additional Chief Metropolitan Magistrate Calcutta so far as the present petitioners are concerned are hereby quashed. If the petitioners are on bail they must be discharged from their bail bonds. Accordingly CRR 8515 is allowed. Pending applications if any is consequently disposed of. Interim order is made absolute. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. Urgent photostat certified copy of this judgment if applied for be supplied to the parties upon compliance with all requisite formalities. 

Summary: The present application has been preferred challenging the proceeding relating to Burrabazar Police Station case no. 809 of 2014 dated 22.12.2014 this was held in the judgement passed by a single bench judge comprising The Hon’ble Justice Tirthankar Ghosh, in the matter Ramesh Chand Singh &amp; Ors. -vs.- The State of West Bengal &amp; Anr [C.R.R. 850 of 2015]. Mr Sekhar Basu, learned Senior Advocate appearing for the petitioners submitted that before the initiation of the present case another case was registered at the same police station being Burrabazar Police Station Case No. 792/14 dated 19.12.2014 under Section 307 of the Indian Penal Code read with Section 25/27 of the Arms Act, He mentioned these because it is the foundation of which was based on the statement of the complainant namely, Santosh Kumar Singh (the present petitioner no.2), The complainant admittedly is Santosh Kumar Singh son of Ramesh Chand Singh. This case was registered based on the statement of Santosh Kumar Singh. The record of this case also reflected that there are two seizure lists the first seizure list which was prepared is concerning Burrabazar P.S. G.D.E. No. 1754 dated 18.12.2014 in between 23.20 hours at the common passage of 2nd floor of 167, Netaji Subhash Road, Jakarta, PS.- Burrabazar, Kolkata-700007 and the following articles were seized: Later, the investigating Agency after the investigation submitted a charge sheet on 22nd January 2015. Meanwhile, we got to know that the complainant also alleges molestation by the present petitioners who have inappropriately touched her private parts and tried to disrobe her, also  It has further alleged that she was thrown at the ground and when her mother-in-law came to her rescue, the petitioners also used physical force upon her mother-in-law and molested her by using criminal force. Mr Basu learned Senior advocate the complaint was registered by the wife of the accused (in Burrabazar PS [ Case no. 792 dated 19.12.2014], Sandeep Upadhaya) after about 3/4 days of the incident.  Mr S. Chakraborty, a learned advocate appearing for the State opposes the contentions advanced by Mr Basu and submitted that the allegations in the FIR taken as a whole make out an offence thereby calling upon the accused persons to face trial in a Court of Law. Court also took into account the contentions advanced by both the parties and also considered the judgment of the Hon’ble Supreme Court in: Vineet Kumar and Ors. –Vs. – State of Uttar Pradesh and Anr., reported in (2017) 13 SCC 369 and Ahmad Ali Quraishi and Anr. –Vs. – State of Uttar Pradesh and Anr., reported in (2020) 13 SCC 435. Also, The Hon’ble Supreme Court referred to the State of Karnataka –Vs. – M. Devendrappa, (2002) 3 SCC 89 The Hon’ble High Court perused the facts and the arguments presented, and thereby, opined that “The case, therefore, warrants invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, as the continuance of the same is an abuse of the process of law and is bound to cause a miscarriage of justice. Thus, all further proceedings relating to Burrabazar P.S. Case No. 809/14 dated 22.12.2014 under Section 354/114 of the Indian Penal Code pending before the learned Additional Chief Metropolitan Magistrate, Calcutta, so far as the present petitioners are concerned are hereby quashed. If the petitioners are on bail they must be discharged from their bail bonds. Accordingly, CRR 850 of 2015 is allowed”.