Sri Kali Charan Das and Another Vs. State of West Bengal and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/950623
CourtKolkata High Court
Decided OnMay-11-2012
Case NumberC.R.R. No. 669 of 2011
Judge PRASENJIT MANDAL
AppellantSri Kali Charan Das and Another
RespondentState of West Bengal and Another
Excerpt:
prasenjit mandal, j. this is an application under section 401 read with section 482 of the code of criminal procedure filed by the accused persons for quashing the g.r. case no.1729 of 2009 arising out of siliguri police station case no.560 of 2009 dated november 26, 2009 under sections 419/420/468 of the indian penal code. once smt. anjana pyne lodged a complaint with the learned additional chief judicial magistrate, siliguri for sending the same to the concerned police station for investigation under section 156(3) of the code of criminal procedure (henceforth shall be called as ‘cr.p.c.’) and on the basis of that complaint the said police station case no.560 of 2009 had been started. i am told that the said case is at the stage of investigation and charge-sheet has not yet been filed. the main dispute is whether the grandfather of the accused no.1, namely, sri kalicharan das was known as kanailal das or not who acquired the land in case by virtue of a deed of lease dated december 13, 1956 executed by one laxmikanta singha. it may be recorded herein that on the basis of the said deed of 1956, the land in question was recorded in the name of kanailal das with separate holding no., khatian no., plot no., etc. after the death of the said kanailal das, his heirs, namely, wife and 2 sons sold some portions of the land plotwise to different persons and thus, the complainant purchased 2.5 cottah of land out of the said land from ananta kumar das, son of kanailal das. in the year 2006, kalicharan das, namely, accused no.1 filed a suit being title suit no.70 of 2006 against the complainant, namely, smt. anjana pyne and her relations for a decree of declaration and the question was whether kalicharan was the grandson of kanailal das or not. under the circumstances, accused kalicharan das and another filed the said application for quashing the criminal proceeding. upon hearing the learned counsel for the parties and on going through the materials-on-record, i find that both the criminal case and the civil suit are still pending and these are to be disposed of in due course in accordance with law. at present, the investigation is going on in respect of the criminal case. it may be the situation that the same fact may constitute criminal offence as well as the civil actions and accordingly, the parties have taken appropriate actions according to their stand and the matter shall be resolved finally at the time of disposal of the suit. in support of his contention, mr. pacchal has referred to the decision of state of haryana and ors. v. bhajanlal and ors. reported in 1992 supp(1) supreme court cases 335 and thus, he submits that whether a case should be quashed or not, this decision is the guiding principle. he submits that the inherent power under section 482 of the cr.p.c. can be exercised by the high court to prevent abuse of the process of any court or otherwise to secure the ends of justice. he has also submitted that when the petitioner of complaint does not disclose the commission of any offence and make out a case against the accused, the criminal proceeding shall be quashed. he has also referred to the decisions of sharon michael and ors. v. state of tamil nadu and anr. reported in (2009) 3 supreme court cases 375 and kishan singh (dead) through lrs. v. gurpal singh and ors. reported in (2010) 8 supreme court cases 775 and thus, he submits that if no criminal misconduct is proved, the proceeding may be quashed. he has also submitted that where there is a delay in lodging an fir, such delay must be explained otherwise deliberate delay in lodging the case is fatal. in support of his contention, mr. pacchal has also contended that since the complainant being a defendant was quite aware of the institution of the civil suit being title suit no.178 of 2007 pending before the learned civil judge (junior division), jalpaiguri but there is no indication of the institution of the suit in the petition of complaint lodged in the year 2009, the criminal case should be quashed. on the other hand, mr. satyajit talukdar, learned counsel appearing on behalf of the opposite party no.2 submits that investigation in respect of the criminal matter is yet to be completed. it may be the situation that the petitioner may get discharge from the case after the completion of the investigation. so, the accused persons are to wait till the completion of the investigation. in support of his contention, mr. talukdar has relied on the decision of rajesh bajaj v. state nct of delhi and ors. reported in air 1999 supreme court 1216 particularly paragraph no.9 and thus, he submits that as soon as the facts as narrated in the petitioner’s compliant discloses the commission of an offence, the court should not hasten to quash the criminal proceedings during the investigation stage merely on the premise that one or two ingredients have not been stated in details. he has also referred to the decision of mushtaq ahmad v. mohd. habibur rehman faizi and ors. reported in air 1996 supreme court 2982 particularly the paragraph no.s 4 and 6 and thus, he submits that when the criminal complaint discloses the fact of commission of an offence, the version of the accused persons should not be relied at the stage of investigation and the debatable issue must be left for decision at the time of trial. mr. talukdar has also referred to the decision of m. krishnan v. vijay singh and anr. reported in 2001 supp.(4) scr 45 and thus, he submits that when a criminal case and a civil suit have arisen out of the same fact over the selfsame property, it will not be proper to quash the criminal proceedings under section 482 of the cr.p.c. lastly, mr. talukdar has also referred to the decision of sitaram agarwal and ors. v. state of west bengal reported in 2010(1)chn(cal) 807 and thus, he submits that the criminal and civil proceeding are separate and independent to each other and the pendency of a civil suit cannot bring to an end of the criminal proceeding even if they arose out of the same set of facts. mr. s. chowdhury, learned counsel appearing on behalf of the state supports the contention of mr. satyajit talukdar, learned counsel appearing for the opposite party. upon due consideration of the above facts and the decisions referred to above, i am of the view that the decisions of mushtaq ahmed (supra) and sitaram agarwal and ors. (supra) are very much relevant in respect of the present matter in dispute. the decision of sitaram agarwal and ors.(supra)is based on supreme court decisions such as 2008(1)scc(cri)399, 2001 scc(cri) 275, 2003 scc(cri) 223 and 2006(3)scc(cri) 188. ultimately, the learned single judge, namely, shri ashim kumar roy, j. of this hon’ble high court, calcutta has come to the following  conclusions, inter alia, in the case of sitaram agarwal and ors. (supra):- (a) merely because an act has a civil profile it is not sufficient to denude of its criminal outfit. (b) …………… (c) criminal and civil proceedings are separate and independent to each other and pendency of a civil suit cannot bring to an end of criminal proceeding even if they arises out of the same set of facts. (d) …………. (e) the mere facts the complaint relates to commercial transaction or breach of contract for which civil remedy is available or even has been availed of, is not by itself a ground for quashing of criminal prosecution. the test is whether the allegation in the complaint discloses an offence or not. (f) there is hardly any dispute that when a complaint does not disclose offence it can be quashed but merely because on the self-same facts a civil claim is maintainable that does not mean the criminal complaint cannot be maintained. (h) a civil proceeding or arbitration proceeding for recovery and criminal proceedings are based on independent cause of action. the making of the award may be a defence to such a complaint but to what extend depends would be valid, shall depend upon the facts and circumstances of each case. (i) ………… therefore, in view of the above facts and circumstances, i am of the opinion that it will not be fit and proper to quash the proceeding of the g.r. case no.1229 of 2009 at the stage of investigation. accordingly, the criminal revisional application is devoid of merits. the criminal revisional application is, therefore, dismissed. considering the circumstances, there will be no order as to costs. urgent xerox certified copy of the judgment, if applied for, be supplied to the learned advocates for the parties on their usual undertakings.
Judgment:

Prasenjit Mandal, J.

This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the accused persons for quashing the G.R. Case No.1729 of 2009 arising out of Siliguri Police Station Case No.560 of 2009 dated November 26, 2009 under Sections 419/420/468 of the Indian Penal Code.

Once Smt. Anjana Pyne lodged a complaint with the learned Additional Chief Judicial Magistrate, Siliguri for sending the same to the concerned Police Station for investigation under Section 156(3) of the Code of Criminal Procedure (henceforth shall be called as ‘Cr.P.C.’) and on the basis of that complaint the said Police Station case no.560 of 2009 had been started. I am told that the said case is at the stage of investigation and charge-sheet has not yet been filed.

The main dispute is whether the grandfather of the accused No.1, namely, Sri Kalicharan Das was known as Kanailal Das or not who acquired the land in case by virtue of a Deed of Lease dated December 13, 1956 executed by one Laxmikanta Singha. It may be recorded herein that on the basis of the said Deed of 1956, the land in question was recorded in the name of Kanailal Das with separate holding no., Khatian no., plot no., etc. After the death of the said Kanailal Das, his heirs, namely, wife and 2 sons sold some portions of the land plotwise to different persons and thus, the complainant purchased 2.5 cottah of land out of the said land from Ananta Kumar Das, son of Kanailal Das.

In the year 2006, Kalicharan Das, namely, accused No.1 filed a suit being Title Suit No.70 of 2006 against the complainant, namely, Smt. Anjana Pyne and her relations for a decree of declaration and the question was whether Kalicharan was the grandson of Kanailal Das or not. Under the circumstances, accused Kalicharan Das and another filed the said application for quashing the criminal proceeding.

Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that both the criminal case and the civil suit are still pending and these are to be disposed of in due course in accordance with law. At present, the investigation is going on in respect of the criminal case. It may be the situation that the same fact may constitute criminal offence as well as the civil actions and accordingly, the parties have taken appropriate actions according to their stand and the matter shall be resolved finally at the time of disposal of the suit.

In support of his contention, Mr. Pacchal has referred to the decision of State of Haryana and Ors. v. Bhajanlal and Ors. Reported in 1992 Supp(1) Supreme Court Cases 335 and thus, he submits that whether a case should be quashed or not, this decision is the guiding principle. He submits that the inherent power under Section 482 of the Cr.P.C. can be exercised by the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. He has also submitted that when the petitioner of complaint does not disclose the commission of any offence and make out a case against the accused, the criminal proceeding shall be quashed.

He has also referred to the decisions of Sharon Michael and Ors. v. State of Tamil Nadu and Anr. reported in (2009) 3 Supreme Court Cases 375 and Kishan Singh (Dead) Through LRS. v. Gurpal Singh and Ors. reported in (2010) 8 Supreme Court Cases 775 and thus, he submits that if no criminal misconduct is proved, the proceeding may be quashed. He has also submitted that where there is a delay in lodging an FIR, such delay must be explained otherwise deliberate delay in lodging the case is fatal. In support of his contention, Mr. Pacchal has also contended that since the complainant being a defendant was quite aware of the institution of the civil suit being Title Suit No.178 of 2007 pending before the learned Civil Judge (Junior Division), Jalpaiguri but there is no indication of the institution of the suit in the petition of complaint lodged in the year 2009, the criminal case should be quashed.

On the other hand, Mr. Satyajit Talukdar, learned Counsel appearing on behalf of the opposite party No.2 submits that investigation in respect of the criminal matter is yet to be completed. It may be the situation that the petitioner may get discharge from the case after the completion of the investigation. So, the accused persons are to wait till the completion of the investigation. In support of his contention, Mr. Talukdar has relied on the decision of Rajesh Bajaj v. State NCT of Delhi and Ors. reported in AIR 1999 Supreme Court 1216 particularly paragraph No.9 and thus, he submits that as soon as the facts as narrated in the petitioner’s compliant discloses the commission of an offence, the Court should not hasten to quash the criminal proceedings during the investigation stage merely on the premise that one or two ingredients have not been stated in details. He has also referred to the decision of Mushtaq Ahmad v. Mohd. Habibur Rehman Faizi and Ors. reported in AIR 1996 Supreme Court 2982 particularly the paragraph No.s 4 and 6 and thus, he submits that when the criminal complaint discloses the fact of commission of an offence, the version of the accused persons should not be relied at the stage of investigation and the debatable issue must be left for decision at the time of trial.

Mr. Talukdar has also referred to the decision of M. Krishnan v. Vijay Singh and Anr. reported in 2001 Supp.(4) SCR 45 and thus, he submits that when a criminal case and a civil suit have arisen out of the same fact over the selfsame property, it will not be proper to quash the criminal proceedings under Section 482 of the Cr.P.C.

Lastly, Mr. Talukdar has also referred to the decision of Sitaram Agarwal and Ors. v. State of West Bengal reported in 2010(1)CHN(CAL) 807 and thus, he submits that the criminal and civil proceeding are separate and independent to each other and the pendency of a civil suit cannot bring to an end of the criminal proceeding even if they arose out of the same set of facts.

Mr. S. Chowdhury, learned Counsel appearing on behalf of the State supports the contention of Mr. Satyajit Talukdar, learned Counsel appearing for the opposite party.

Upon due consideration of the above facts and the decisions referred to above, I am of the view that the decisions of Mushtaq Ahmed (supra) and Sitaram Agarwal and Ors. (supra) are very much relevant in respect of the present matter in dispute.

The decision of Sitaram Agarwal and Ors.(supra)is based on Supreme Court decisions such as 2008(1)SCC(Cri)399, 2001 SCC(Cri) 275, 2003 SCC(Cri) 223 and 2006(3)SCC(Cri) 188. Ultimately, the learned Single Judge, namely, Shri Ashim Kumar Roy, J. of this Hon’ble High Court, Calcutta has come to the following  conclusions, inter alia, in the case of Sitaram Agarwal and Ors. (supra):-

(a) Merely because an act has a civil profile it is not sufficient to denude of its criminal outfit.

(b) ……………

(c) Criminal and civil proceedings are separate and independent to each other and pendency of a civil suit cannot bring to an end of criminal proceeding even if they arises out of the same set of facts.

(d) ………….

(e) The mere facts the complaint relates to commercial transaction or breach of contract for which civil remedy is available or even has been availed of, is not by itself a ground for quashing of criminal prosecution.

The test is whether the allegation in the complaint discloses an offence or not.

(f) There is hardly any dispute that when a complaint does not disclose offence it can be quashed but merely because on the self-same facts a civil claim is maintainable that does not mean the criminal complaint cannot be maintained.

(h) A civil proceeding or arbitration proceeding for recovery and criminal proceedings are based on independent cause of action. The making of the award may be a defence to such a complaint but to what extend depends would be valid, shall depend upon the facts and circumstances of each case.

(i) …………

Therefore, in view of the above facts and circumstances, I am of the opinion that it will not be fit and proper to quash the proceeding of the G.R. Case No.1229 of 2009 at the stage of investigation. Accordingly, the criminal revisional application is devoid of merits. The criminal revisional application is, therefore, dismissed.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of the judgment, if applied for, be supplied to the learned advocates for the parties on their usual undertakings.