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High Court Of Calcutta
Kanchan Chakraborty, J.
Radha Dutta – Appellant
Versus
State Of West Bengal – Respondent
C.R.R No. 2086 of 2009
Decided on : Jan 18, 2012
CRIMINAL PROCEDURE CODE - SECTION 482 - QUASHING OF CRIMINAL PROCEEDINGS - MISCHIEF - DIMINUTION OF WATER SUPPLY - CIVIL DISPUTE - ABUSE OF PROCESS OF COURT - LANDLORD AND TENANT DISPUTE - STATUS QUO ORDER - RESTORATION OF WATER SUPPLY - MALA FIDE INTENTION - INTENT TO CAUSE WRONGFUL LOSS OR DAMAGE - MENSE REA - CIVIL REMEDY - CRIMINAL PROSECUTION - ABUSE OF PROCESS OF COURT - EXERCISE OF INHERENT POWER TO QUASH PROCEEDINGS.
Fact of the Case:
The petitioners, landlords, were accused of mischief by way of diminution of water supply to the tenant's flat. The tenant filed a petition of complaint under Section 430 of the IPC against the petitioners. The Magistrate, after receiving the petition, transferred the case to the 6th Court of the Judicial Magistrate for disposal. The Magistrate, upon receiving the case, recorded initial statements of the complainant and one witness. However, the Magistrate thought it proper to postpone the issuance of process and directed an enquiry under Section 202 of the Code by the local police station. After receiving the report under Section 202 of the Cr.P.C. from the local police station, the Magistrate found himself not satisfied about the way in which the matter was enquired into and directed the officer-in-charge of the police station to enquire into the matter properly and submit a report afresh. After having the fresh report and upon consideration of the averments in the petition of the complainant and initial deposition of the complainant and one witness, the Magistrate found that there existed sufficient materials to proceed against the petitioners under Section 430 of the IPC. Accordingly, the Magistrate directed the issuance of process invoking the provisions of Section 204 of the Cr.P.C. The accused persons came up with this application praying for quashing of the proceeding on the grounds that no case under Section 430 of the IPC is made out against them, that the dispute between the parties is of civil in nature and that the learned Magistrate erred in directing the police official of the local police station to enquire further into the matter for the 2nd time after getting the first report under Section 202 of the Code.
Finding of the Court:
The Court held that the dispute between the parties was purely and simply a civil in nature and that the lis of the issue was pending in the civil court wherein the parties were litigating fulfledgedly and an effective order had been passed. It further held that in such a situation, initiation of Criminal proceeding by the tenant against the landlord was clearly an abuse of the process of Court. The Court also held that the alleged incident had taken place on 27.1.2006 while the petition of complaint was filed two months thereafter and that there was no reason for the complainant/tenant to wait for the said period of two months knowing very well that the matter was pending in Civil Court and that before initiation of criminal proceeding application for temporary mandatory injunction was filed by the tenants which was ultimately allowed in their favour.
Issues: 1. Whether a prima facie case under Section 430 IPC is made out against the petitioners in the petition of complaint? 2. Whether the dispute between the parties is of civil in nature and the learned Magistrate erred in directing the police official of the local police station to enquire further into the matter for the 2nd time after getting the first report under Section 202 of the Code?
Ratio Decidendi: 1. In order to determine whether a prima facie case is made out, the factual matrix is to be assessed. 2. When the very lis of the issue is pending in the civil court wherein the parties are litigating fulfledgedly and an effective order has been passed, it will be sheer abuse of process of Court to continue such a Criminal prosecution.
Final Decision: The application was allowed and the Criminal Proceeding being 1132 of 2006 pending in the Court of learned Judicial Magistrate, 6th Court at Alipore was quashed.
KANCHAN CHAKRABORTY,J
1. THIS application under Section 482 of the Code of Criminal Procedure praying for quashing of the proceeding in Criminal Case no. 1132 of 2006 pending in the Court of learned Judicial Magistrate, 6th Court, Alipore, has been taken out by Radha Dutta and Subhashis dutta, the persons made accused in the case, on the following grounds :
a) that no case under Section 430 of I.P.C. is made out against them; b) that the dispute between the parties is of civil in nature and while the parties to the case are litigating over the issue in competent Civil Court, the learned Magistrate, ought not have taken cognizance of the offence against the petitioners; c) that the learned Magistrate erred in directing the police official of the local police station to enquier further into the matter for the 2nd time after getting first report under Section 202 of the Code; d) that the Criminal proceeding initiated by the opposite party is manifestly attended with mala fide or maliciously with a ulterior motive for wreaking vengeance of the petitioners with a view to spite them owing to personal grudge; and e) that continuation of the proceeding against the petitioners will be amounting to abuse of the process Court and gross mis-carriage of justice;
2. ON 18.3.2006, Shankar Chakraborty, Assistant Manager of S.T.P Ltd., lodged one petition of complaint against the petitioners Smt. Radha Dutta and Subhasish Dutta in the Court of learned Chief Judicial Magistrate, Alipore praying for prosecuting the petitioners herein under Section 430/120B of the IPC. The said petition of complainant was registered as complainant case no. 1132 of 2006. It was alleged therein that Sankar Chakraborty, the complainant was the lawful tenant in respect of the Flat situated at the First Floor of premises no. 26/3, Ballygunge Circular Road, Kolkata ? 19 and was paying rent regularly in the office of District Judge, Alipore in connection with Ejectment Suit no. 105 of 2003, pending in the 1st Court of learned Civil Judge, Junior Division at Alipore. The petitioners herein were the Joint owners of the premises and landlord of the complainant. During pendency of the Civil Suits, the petitioners indulged themselves in various illegal and unlawful activities in an around the tenanted Flat and thereby caused disturbance, annoyance, interference or obstruction with the peaceful occupation of the complainant company. They also diminuted the supply of municipal corporation filter water to the tenanted flat of the complainant with a view to evict the complainant therefrom. It was also alleged that on and from 27.1.2006 the petitioners (accused) with mala fide intention diminuted supply of filter water to tenanted portion of the complainant and thereby put the complainant in gross sufferance of acute crisis of water. Despite request from the complainant, the petitioners did not restore the water supply. The matter was reported to local police station on 27.1.2006 and thereafter on 13.2.2006. The petitioners (accused) in collusion with each other, committed mischief by way of maneuvering some fittings attached or fitted to the delivery pipe line to the complainant tenanted flat knowing fully well that by doing such act, they caused diminution of supply of filter water used for cooking, Drinking, cleaning etc.
3. UPON receiving the said petition of complainant, learned Chief Judicial Magistrate at Alipore have taken cognizance of the same and transfer the case to the 6th Court of learned Judicial Magistrate, Alipore under Section 192 (2) of Cr.P.C. for disposal. The learned Magistrate, upon receiving of the case from the learned Chief Judicial Magistrate, recorded initial statements of the complainant and one witness. However, the learned Magistrate, thought it proper and wise to postpone issuance of process and directed enquiry under Section 202 of the code by the local police station. After receiving the said report under Section 202 of Cr.P.C. from the lo
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