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Davendra Nath Dubey vs The State Of West Bengal & Anr on 28 March, 2019

Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE

Present:

The Hon’ble Justice Asha Arora

C.R.R. 2283 of 2018

Davendra Nath Dubey.

-vs-

The State of West Bengal Anr.

For Petitioner : Mr. Rajdeep Majumdar,
Mr. Pritam Roy,
Ms. Shyanti Poddar

For the Opposite
Party No. 2 : Mr. Arun Singh,
Mr. Ranjit Singh

For the State : Ms. Sreeparna Das

Heard on : 28.03.2019

Judgement on : 28.03.2019

Asha Arora, J.:

By the instant application the petitioner has approached this Court

for quashing of the First Information Report and the proceedings arising out of

Sinthi P.S. Case No. 21 of 2018 dated 24.02.2018 under Sections

498A/323/376/511/316/406/34 of the Indian Penal Code and Section 3/4 of
the Dowry Prohibition Act being G.R. Case No. 515 of 2018 pending before the

learned Additional Chief Judicial Magistrate, Sealdah.

The facts in brief leading to the present application may be summarized as

follows :

The opposite party No. 2 herein/complainant lodged a written complaint at

Sinthi P.S. on 24.02.2018 stating that she was married to one Chandra Prakash

Dubey on 20th January, 2017 in accordance with Hindu rites and customs. As

demanded by the complainant’s husband and in-laws, her parents gave cash

and other articles at the time of her marriage. It is further contended that from

time to time cash was given by the complainant’s parents as demanded by her

husband and in-laws for construction of their house and for purchase of a car.

After a few days of marriage torture upon the complainant by her husband and

in-laws started. The petitioner herein is the uncle-in-law of the complainant. The

complainant has alleged commission of offences under Section

498A/376/511/316/406/34 of the Indian Penal Code against her father-in-law

and the offences under Section 498A/316/323/406/34 of the Indian Penal Code

against the present petitioner and the other accused persons. On the basis of

the aforesaid written complaint the proceeding was initiated and investigation

commenced.

Learned counsel for the petitioner submits that on the specific date as

mentioned in the petition of complaint that is, on 6th February, 2018 the

petitioner/uncle-in-law of the opposite party No. 2/complainant was not present

in the house. He is a school teacher and on that particular date he was in the

school. It is further canvassed that the ingredients of the offences alleged are not

disclosed qua this petitioner and the F.I.R. is a counter blast to a criminal

proceeding initiated against the parents and other relatives of the complainant.

Learned counsel for the petitioner sought to impress that there is a family feud

between the parties which has prompted the complainant to lodge this false

complaint.

Repudiating the above submissions, learned counsel for the State/opposite

party No. 1 pointed out that investigation has made some progress and the

contents of the F.I.R. find support in the materials collected during the

investigation including the medical evidence of the doctors who examined the

complainant.

It is well settled that if the factual foundation for the offences alleged has

been laid in the complaint/F.I.R., the Court should not hasten to quash a

criminal proceeding during the investigation stage. In State of Haryana versus

Bhajanlal reported in 1992 Supp. (1) SCC 335, the Supreme Court laid down

the premise on which the F.I.R. can be quashed in rare cases. It may be
beneficial to quote the relevant paragraph 103 of the aforesaid judgement of the

Supreme Court which is as follows : –

“103. We also give a note of caution to the effect that the power of

quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the court will

not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the

complaint and that the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the court to act according to its whim or caprice.”

In course of hearing learned counsel for the petitioner sought to set up a

defence case which cannot be considered by this Court while exercising power

under Section 482 Cr.P.C. Disputed questions of fact are matters to be decided

by the trial Court. The issues raised herein by the petitioner may be canvassed

before the trial Court at the appropriate stage of the proceeding. At this juncture

it may be useful to refer to paragraph 12 of the judgement of the Supreme Court

in Indian Oil Corporation versus NEPC India Limited and others reported in

(2006) 6 Supreme Court Cases 736 wherein the Supreme Court held as follows

:-

“12. The principle relating to exercise of jurisdiction under Section

482 of the Code of Criminal Procedure to quash complaints and criminal
proceedings have been stated and reiterated by this Court in several

decisions. To mention a few – Madhavrao Jiwajirao Scindia v. Sambhajirao

Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v.

Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro

Industries Ltd., State of Bihar v. Rajendra Agarwalla, Rajesh Bajaj v. State

NCT of Delhi, Medchl Chemicals Pharma (P) Ltd. v. Biological E. Ltd.,

Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh

and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque. The

principles, relevant to our purpose are :

i) 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.

For this purpose, the complaint has to be examined as a whole, but

without examining the merits of the allegations. Neither a detailed inquiry

nor a meticulous analysis of the material nor an assessment of the

reliability or genuineness of the allegations in the complaint, is warranted

while examining prayer for quashing of a complaint.

ii) A complaint may also be quashed where it is a clear abuse of

the process of the court, as when the criminal proceeding is
found to have been initiated with mala fides/malice for

wreaking vengeance or to cause harm, or where the

allegations are absurd and inherently improbable.

iii) The power to quash shall not, however, be used to stifle or

scuttle a legitimate prosecution. The power should be used

sparingly and with abundant caution.

iv) The complaint is not required to verbatim reproduce the legal

ingredients of the offence alleged. If the necessary factual

foundation is laid in the complaint, merely on the ground

that a few ingredients have not been stated in detail, the

proceedings should not be quashed. Quashing of the

complaint is warranted only where the complaint is so bereft

of even the basic facts which are absolutely necessary for

making out the offence.

v) A given set of facts may make out : (a) purely a civil wrong; or

(b) purely a criminal offence; (c) a civil wrong as also a

criminal offence. A commercial transaction or a contractual

dispute, apart from furnishing a cause of action for seeking

remedy in civil law, may also involve a criminal offence. As

the nature and scope of a civil proceeding are different from a
criminal proceeding, the mere fact that the complaint relates

to a commercial transaction or breach of contract, for which a

civil remedy is available or has been availed, is not by itself a

ground to quash the criminal proceedings. The test is whether

the allegations in the complaint disclose a criminal offence or

not.”

Reverting to the case in hand, the allegations made in the F.I.R. in my

considered opinion, clearly disclose a prima facie case against the petitioner

justifying registration of a criminal proceeding and investigation thereon. Upon

perusal of the petition of compliant in its entirety, it cannot be said that it is

bereft of even the basic facts which are absolutely necessary for constituting a

prima facie case for the offences alleged nor can it be said that the allegations

made in the complaint even if given face value and taken to be correct in its

entirety do not disclose an offence. This case certainly does not fall within any of

the categories of the cases calling for the exercise of the power of this Court

under Section 482 Cr.P.C. It appears that by seeking to quash the F.I.R. and the

criminal proceeding, the petitioner intends to stifle a legitimate prosecution.

For the reasons aforestated, the application being C.R.R. 2283 of 2018 is

devoid of merit and is accordingly dismissed.

Let the investigation of Sinthi P.S. Case No. 21 of 2018 dated 24.02.2018

under Section 498A/323/376/511/316/406/34 of the Indian Penal Code

proceed in accordance with law and the same be expedited.

Urgent photostat certified copy of this order, if applied for, be given to the

applicant upon compliance of requisite formalities.

(Asha Arora, J.)

P.M.

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