ABIRA MUKHERJEE & Ors. v. THE STATE OF WEST BENGAL

charge sheet has been furnished which prima facie established the allegations against the petitioner and hence he should face the trial. Analysis

#12. Heard the submission. It can be gathered from the record that the suit filed by the petitioner no 2 in the year 2023 against the opposite party was for declaration that the defendant is a stranger trespasser in the suit premises and for permanent injunction to restrain him from creating third party interest and also not to alienating or changing the nature and character. The Opposite Party no. 2 also filed a suit for declaration against both the petitioners that he is a tenant in respect of the suit plot and prayed for permanent injunction restraining the petitioners from entering into the suit property with force and from dispossessing him without due process of law. Both the suits are pending before the court of civil judge ,Senior Division at Alipore .In the suit filed by the opposite party no 2 obtained an order of interim injunction restraining the petitioners to dispossess him without due process of law till 10.8.2023. From the record it further transpires that a Suit for Defamation was also filed by the opposite party no 2 against the present petitioners along with the wife of the petitioner no 2.In this backdrop the complaint was filed under section 200 Cr.P.C by the opposite party against the petitioners including the sister of petitioner no 1 .The date of incident mentioned was on 8.7.2023 at about 5 p.m. when the petitioners trespassed into his chamber and abused him with filthy languages and threatened to oust him .The date of incident of demolition and removal of shutter was on 22.6.2023 which was the cause of action for filing the suit for declaration by the petitioner no. 2 and in order to protect his interest the order of injunction was granted against the Opposite Party no. 2 restraining him from creating the third party interest till 4.8.2023 .

#13. Therefore from the above the longstanding civil dispute over the suit premises regarding the status of the Opposite Party no. 2 are well founded. Whether the opposite party is a tenant or trespasser can only be decided by the civil court .It is a settled proposition of law that merely because a civil dispute is pending cannot ipso facto take away the right of a person from initiating criminal proceeding if he alleges of commission of criminal offences but in order to maintain that the primary essential ingredients must subsist to attract any penal section. In the decision relied upon by the Learned advocate of the opposite party in Kathyayini vs Siddharth P.S Reddy and ors (supra) it was held in paragraph 8 that:- ‘8. It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party ,he is not precluded from setting in motion the proceedings in criminal law .’ It was further held that pendency of civil proceedings on the same subject matter, involving the same parties is no justification to quash the criminal proceedings if a prima facie case exists against the accused persons.

#14. Therefore it should be prima facie evident that the complaint lack sufficient materials to constitute an offence and also during investigation nothing evinces to constitute the offences in respect of which the charge sheet is submitted. The High Court is not denuded to exercise the inherent power where the continuation of criminal proceeding would amount to an abuse of the process of law or where the dispute is purely of civil nature and criminal colour has been artificially given to it.

#15. On close scrutiny of the entire complaint it is evident that the opposite party did not specify the role attributed by the present petitioners as allegations were made against four accused persons in respect of an incident dated 8.7.2023. It is further apparent that the complainant mentioned about a chamber in respect of which the tenancy was claimed when the specific case of the petitioner s are that the originally the tenancy was given to Rampratap Shaw in respect of a shop room and the present opposite party is claiming to be the son of Rampratap Shaw . The petitioners filed application under Order 39 Rules 2(A) for violating the order of injunction granted in his favour and also lodged a complaint before Kalighat Police station as the Opposite Party forcefully took the possession of that shop room. The allegations against the present petitioners are found omnibus in nature without specifying any role attributed against petitioners when the petitioner no. 1 is an aged lady. Nothing is mentioned as to how the aged lady can threatened the Opposite Party no. 2 with dire consequences. No gesture or word spoken can be found, Similarly, the materials collected during instigation also do not suggest that prima facie enough materials exists to constitute the offence as alleged. Therefore on the face of it no ingredients can be found to attract the offences alleged was made out against the petitioners specially when civil disputes are pending between the parties which are the root cause of all disputes. That apart the Learned Co-ordinate Bench while admitting this revisional application observed the manner in which the cognizance was taken by the learned Magistrate. On perusal of the order dated 25.7.23 it is apparent that the Learned Magistrate after examining the complainant under Section 200 Cr.P.C observed that prima facie offence made out against the accused persons and directed to issue process despite the fact that order issuing process is a serious matter. It is settled law that the Magistrate is required to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and to ascertain whether that would be sufficient for proceeding against the accused. In this case the complainant before the Court stated about assault when the complaint was absolutely silent about the same.

#16. The scope of Section 482 is wider than that of discharge proceedings ,as in quashing petitions the accused may rely on documents outside the charge sheet to demonstrate abuse of the process of law in order to prevent the abuse of the process of law. Furthermore the criminal prosecution must not be permitted as an instrument of harassment or private vendetta as held time and again by the Hon’ble Apex Court.

#17. In the present case from the nature of allegations made coupled with the fast of pending civil dispute over the suit property and other proceeding including a suit for defamation claiming Rs. 50,000/- in respect of the self- same allegation on the same day which express otherwise that the Opposite Party no. 2 for opted both civil and criminal fprum alleging defamation. Conclusion

#18. Therefore on cumulative assessment of the entire gamut of the case and the content of the written complaint as well as from the materials collected during the investigation it is apparent that the dispute is purely civil in nature and over the same incident suit for defamation has also been filed by the Opposite Party no. 2 claiming Rs. 5,00,000/- and also Title suits are pending between the parties. There is apparent the non-application of mind by the Learned Magistrate in taking cognizance when the embellishment was clearly apparent from the statement of the complainant and the content of written complaint and the Learned Magistrate issued the process without arising any reason.

#19. Therefore this Court is of the view that if the proceeding is allowed to be continued it would be abuse of the process of the Court.

#20. Hence this criminal revisional application stands allowed. The entire proceeding is quashed against the petitioners.

#21. No order as to costs.

#22. Urgent certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. (CHAITALI CHATTERJEE DAS,J.)