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Court In The Case Of The State Of … vs Laxmi Narayan & Ors. In Criminal … on 19 March, 2019

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19.03.2019. C.R.R. No. 2625 of 2018
rc.

Mr. Milon Mukherjee
Mr. Anirban Banerjee ….for the petitioner

Mr. Soumyajit Das Mahapatra
Mr. S. Basu Roy Chowdhury …for the O.P.

Mr. Saryati Dutta …for the State

This is an application under Section 482 of the Code of Criminal

Procedure on behalf of the petitioner, Somenath Bhattyacharjee @ Bhattacharjee

who is a practicing advocate on regular basis at Alipore Judges Court as well as

Calcutta High Court and is a member of Calcutta High Court Bar Association and

the petitioner is the advisor to his client, Biswajit Karmakar who is a resident of

Bishnupur, Bankura and lives and work at Calcutta. The petitioners used to

advise his client in the matters relating to property disputes, inheritance issues as

well as assisting in matters relating to his client’s aged and infirm mother,

Shaktibala Karmakar.

According to the petitioner, his client’s father, Murari Mohan Karmakar had

three sons being Ashim (the eldest), Biswajit (the middle), Ashish (the youngest)

and one daughter, being Rita Mondal @ Karmakar, opposite party no. 2. After the

death of client’s father there were various property disputes as the brothers and

sisters of the of the client were attacking him with a view to getting control of the

property in question.

According to the petitioner, his client was all along looking after his aged

and infirm mother since the death of his father together with his elder brother
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Ashim, as she was abandoned by her other children. The client and his elder

brother are not well off, and somehow they were looking after their mother. In the

meanwhile the problem was created by the middle brother Ashish and the

husband of the O.P.No. 2, being Palash who were demanding that the mother

should sign off all the property in their names, after which they would look after

her and contribute financially to her maintenance and welfare.

So a lot of litigation has also been initiated by the parties. In this litigation

the petitioner had been advising the said Biswajit Karmakar, his elder brother,

Ashim Karmakar and their mother Shaktibala Karmakar. The petitioner has

appeared on several occasions for these clients as well and has all along dealt

with them professionally and in a transparent and clear manner respecting and

upholding all the best rules standards and traditions of the legal professions.

The petitioner had also advised his clients to initiate appropriate

proceedings under Section 125 of the Code of Criminal Procedure to ensure that

their mother was properly looked after and that the other brother Ashish and

sister Rita contributed to her welfare and maintenance. The said matter was duly

filed before the Court of the learned Additional Chief Judicial Magistrate,

Bishnupur, Bankura being Misc. Case No. 42/64 of 2018 filed on 11.07.2018 and

the same was fixed on 30.08.2018 when none appeared on behalf of the

opposite parties and date was fixed on 31.10.2018 for appearance as a last

chance.

Other civil proceedings being T.S.No. 28 of 2018 and T.S.No. 18 of 2018

and an application under Section 151 of the Code of Civil Procedure were filed
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which were adjudicated in favour of the petitioner’s client which is depicted from

the information slip of the interim order dated 07.02.2018 passed by the learned

Civil Judge, Junior Division, Bishnupur, Bankura in T.S.No. 18, 2018 and T.S.No.

28 of 2018. A complaint was registered being case no. 38C/2018 which was filed

by Ashis Karmakar before the learned Additional Chief Judicial Magistrate,

Bishnupur which is still pending.

Shaktibala Karmakar lodged an FIR on 22.07.2018 under Sections

341/323/325/448/427/379/507/34 of the Indian Penal Code against Asish

Karmakar, Baisakhi Karmakar and Sukumar Karmakar and as no steps were

taken therefore she lodged another complaint on 29.07.2018 before Sonamukhi

Police Station. This incident of physical and mental torture by sons and daughter

in law upon their mother was published in the most popular daily newspaper

namely Ananda Bazar Patrika on 30.07.2018. Thereafter as a counterblast a

false case was initiated by the O.P.No. 2 which was registered as Sonamukhi

Police Station Case No. 86 of 2018 dated 01.08.2018 under Sections

341/323/354/379/34 of the Indian Penal Code against Ashim Karmakar and

Laxmi Karmakar.

The petitioner’s client namely Biswajit along with his wife his mother and

elder brother were invited by his brother Ashish and brother in law Palash to

come over to Bishnupur to discuss matters in maintenance and property dispute.

The petitioner’s client became afraid on the assertion that be would be

pressurized in some form and probably forced to sign some documents against

his wishes or that they would all be subjected to some form of torture or coercion,
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as had happened on several occasions before, therefore, he asked the petitioner

in his capacity as his acquaintance and lawyer to accompany his family to

Bishnupur in order to advise them on the spot and hoping that his presence

would deter the other relatives from taking any extreme steps during this visit.

Still the petitioner did not accept to go to Bishnupur but finally being

influenced by his client that he would show him their village house and the

ancient architectural tourist attractions of Bishnupur, he had gone along to be

present during the meeting. The petitioner took his own vehicle and together they

all left Kolkata about 9 P.M. on 18.08.2018 so as to spend the night at Bishnupur.

On 19.08.2018 in the night at around 01.00 A.M. they had their evening

meal and were going to sleep when suddenly the client’s younger brother Ashish

together with his wife Baishakhi younger sister, O.P.No.2 with her husband

Palash came to the house of his client and started abusing their mother

Shaktibala shouting about the case initiated by her for maintenance. Ashish

assaulted their mother with a stick mercilessly, and Palash had taken a bucket

and banged it on the back of her head. When she collapsed on the floor the sister

Rita had tried to strangulate her. Hearing her hue and cries the petitioner’s client

Biswajit, his elder brother Ashim ran downstairs and intervened to save her life.

The petitioner and his driver had also come downstairs and was aghast at seeing

the situation.

By that time the petitioner had reached downstairs, those attackers had

left the house, as his client had warned them that his lawyer was present, and

they would immediately take legal steps with the help of the lawyer as an
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independent witness. Ironically those persons held out that they would see the

lawyer as well as Biswajit and left the place.

The client’s mother was taken to the hospital.

Finally after getting the proper medical attention, they immediately went to

the Police Station but were receiving no cooperation. It was about 5 A.M. in the

morning and the police officers were not at all interest in taking a complaint but at

the insistence of the petitioner who disclosed his identity as an Advocate and his

threat to go to the Court over this matter for police inaction, the officer on duty

agreed got to get in touch with his superiors and ultimately the complaint was

taken by the police at the intervention of the petitioner which was registered as

Bishnupur Police Station Case No. 97 of 2018 dated 19.08.2018 at 05.05 hours

under Sections 448/323/325/307/506/427/34 of the Indian Penal Code against

the said Ashish Karmakar and his wife Baishakhi Karmakar and sister Rita

Mondal @ Karmakar.

The petitioner was shocked to find that he was arraigned as an accused

along with his client Biswajit in a case being Bishnupur Police Station Case No.

98 of 2018 dated 19.08.2018 at 07.45 A.M. under Section Sections

448/323/354A/354/376/511/120B of the Indian Penal Code registered on the

basis of a complaint lodged by the O.P.No.2 as a counter blast.

It is also evident that the Investigating Officer of the case completed the

investigation within six days of the initiation of the case and submitted charge

sheet before the court of the learned Additional Chief Judicial Magistrate,
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Bishnupur vide Charge Sheet No. 87 of 2018 dated 26.08.2018 under Sections

448/323/354A/354/376/ 511/ 120B of the Indian Penal Code.

In this background the petitioner has been falsely entangled in the instant

proceeding without any material basis whatsoever as it is crystal clear from the

scrutiny of the FIR and Charge Sheet that the petitioner was not at all involved in

any offences under Sections 448/323/354A/354/ 376/ 511/120B of the Indian

Penal Code.

Mr. Mukherjee submits that the petitioner as an advocate was conducting

cases on behalf of his client, Shaktibala Karmakar and Biswajit Karmakar who

had filed Title Suit No. 28 of 2018 through his junior in the court of the learned

Civil Judge, Jr. Divn., Bishnupur for permanent injunction against the defendants

including O.P.No. 2/ complainant, Smt. Rita Karmakar (Mondal) who happens to

be the daughter of plaintiff no. 1 Shaktibala Karmakar and sister of plaintiff no. 2

Biswajit Karmakar of the said suit. It is submitted that there is a land dispute by

and between the parties and it is peculiar to take note of the fact that the mother

of the Opposite Party No. 2 had lodged a case being Sonamukhi P.S.Case No.

82/18 dated 22.07.2018 against the Ashim Karmakar Ors. The present

Opposite Party No. 2 Rita Karmakar (Mondal) lodged a case being Sonamukhi

P.S.Case No. 86/18 dated 01.08.2018 against Asish Karmakar. On 19.08.2018

Biswajit Karmakar had lodged a case being Sonamukhi P.S.Case No. 97/18

against Asish Karmakar and ors. including Rita Karmakar (Mondal). Thereafter

the said Rita Karmakar (Mondal), the opposite party no. 2 lodged a counter case

being Sonamukhi Police Station Case No. 98 of 2018 dated 19.08.2018 against
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her own brother, Biswajit Karmakar and his lawyer, Mr. Somenath Bhattyacharjee

@ Bhattacharjee alleging attempt to commit rape and molestation on her by

criminal trespass to her premises.

There appears, personal ire between the parties. It is curious to note that

the conducting lawyer is implicated by a private party in such a counter case in

which the complainant, opposite party no. 2 has implicated his own brother for

commission of attempt to commit rape and molestation upon her.

Accordingly the petitioner has filed the instant revisional application for

quashing of the proceeding under reference.

On November 12, 2018 when this revisional application was moved before

this court, this court stayed of all further proceedings in the case under reference

qua the petitioner pending before the Learned Magistrate Court for a period of six

weeks from date.

It would appear from the order dated 26.02.2019 that the de facto

complainant OP 2 herein was present before this Court who candidly submitted

that she was compelled to put her signature on the FIR as directed by the Police

and she does not want to proceed with the case and she prayed for quashing of

the criminal case allegedly lodged by her. She expressed in open court that there

was no such case lodged by her. Rather she was asked to put her signature of

the FIR. The opposite party no. 2 has also submitted an affidavit by contending

that she is well aware of the circumstances leading to filing of this supplementary

affidavit in connection with the instant criminal revisional application.
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The OP No. 2 voluntarily filed the supplementary affidavit to submit before

this Court that she had filed this criminal case as because she was pressurized

by the police only with an intention to harass the accused persons including the

petitioner.

She has no objection if the prosecution under reference being G.R.Case

No. 500 of 2018 arising out of Sonamukhi Police Station Case No. 98 of 2018

dated 19.08.2018 for alleged offence punishable under Sections

448/323/354(A)/354/376/511/120B of the Indian Penal Code and the Charge

Sheet being No. 87 of 2018 dated 26.08.2018 submitted after investigation

pending before the court of Learned Additional Chief Judicial Magistrate,

Bishnupur, Bankura is quashed and set aside by this Court.

In the context above, on hearing Mr. Milon Mukherjee, learned advocate for the petitioner

Mr. Soumyajit Das Mahapatra learned advocate for the O.P. 2 and Mr. Saryati Dutta, learned

advocate for the State OP1 and in consideration of the principle laid down by the Hon’ble Apex

Court in the case of the State of Madhya Pradesh Vs. Laxmi Narayan Ors. in Criminal Appeal

No. 349 and 350 of 2019 and in case of State of Maharashtra Vs. Vikram Anantrai Doshi

reported in (2014) 15 SCC 29 that the Court’s principal duty while exercising the powers under

Sections 482 of the Code of Criminal Procedure to quash the criminal proceedings should scan

the entire facts to find out the thrust of the allegations and the crux of the settlement as it is the

experience of the Judge that comes to his aid and the said experience should be used with care,

caution and after having scrutinised the factual aspects of the case as alleged this court hereby

quash the proceeding under reference being G.R.Case No. 500 of 2018 arising out of

Sonamukhi Police Station Case No. 98 of 2018 dated 19.08.2018 for alleged offence punishable

under Sections 448/323/354(A)/354/376/511/120B of the Indian Penal Code including the Charge

Sheet being No. 87 of 2018 dated 26.08.2018 under Sections 448/323/354(A)/354/376/511/120B
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of the Indian Penal Code pending before the court of Learned Additional Chief Judicial

Magistrate, Bishnupur, Bankura qua the petitioner.

Thus, CRR No. 2625 of 2018 is disposed of.

Urgent photostat certified copies of this order, if applied for, be made

available to the parties upon compliance of the requisite formalities.

(Shivakant Prasad, J.)

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