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2023 Supreme(Cal) 914
IN THE HIGH COURT AT CALCUTTA
BIBHAS RANJAN DE, J.
Samit Kumar Ghosal – Petitioner
Versus
State of West Bengal and Another – Respondents
C.R.R. No. 2984 of 2016
Decided On : 25-07-2023
Advocate Appeared:
For the Petitioners: Tapan Roy Chowdhry, Kallol Mondal, Krishan Roy.
For the Respondents: Bidyut Kumar Roy, Rita Dutta, Santanu Seth, Milon Mukherjee, Biswajit Manna.
An accused cannot be compelled to produce a document to prove the charge against him in violation of Article 20 of the Constitution of India.
Headnote:
CRIMINAL LAW - DISCHARGE FROM CHARGE - SECTION 420/406/465/120B IPC - FORGERY OF AGREEMENT FOR SALE - PRODUCTION OF DOCUMENT - ARTICLE 20 OF THE CONSTITUTION OF INDIA - RIGHT AGAINST SELF-INCRIMINATION - SUMMONING ACCUSED TO PRODUCE AGREEMENT FOR SALE - VIOLATION OF RIGHT - DISCHARGE FROM CHARGE PROPER.
Fact of the Case:
Petitioner alleged that the opposite party, who was a licensee in respect of his flat, forged an agreement for sale of the flat in his favor and refused to vacate the flat. A complaint was lodged under Section 156(3) of CrPC and an FIR was registered. During investigation, the opposite party was asked to produce the alleged agreement for sale, but he refused on the ground that he had deposited it in the Civil Court. The investigating officer submitted a charge sheet against the opposite party under Section 420/406/465/120B of IPC. The Magistrate discharged the opposite party from the charges, holding that the prosecution had failed to prove a prima facie case. On appeal, the Sessions Judge set aside the Magistrate's order and directed the Magistrate to dispose of the discharge petition afresh.
Finding of the Court:
The court held that the Magistrate was not justified in drawing an adverse presumption against the accused for non-production of the alleged document of agreement for sale. The court further held that the accused cannot be compelled to produce the document to prove the charge against him in violation of Article 20 of the Constitution of India.
Issues: Whether the Magistrate was justified in drawing an adverse presumption against the accused for non-production of the alleged document of agreement for sale.
Ratio Decidendi: The court relied on the judgment of the Supreme Court in Priyanka Srivastava and Another vs. State of Uttar Pradesh and Another, (2015) 6 SCC 287, which held that compliance of Section 154(1) CrPC & 154(3) CrPC have to be in existence at the time of filing petition under Section 156(3) of CrPC and information to police shall have to be embedded in the application under Section 156(3) of CrPC. The court also held that the Provision of Section 156(3) of CrPC can only be invoked by a principled and really aggrieved citizen approaching the court with clean hands.
Final Decision: The court set aside the order of the Sessions Judge and restored the order of the Magistrate discharging the accused from the charges.
JUDGMENT :
BIBHAS RANJAN DE, J.
1. Judgment and order dated 31.03.2016 passed by the Ld. Additional Sessions Judge, 11th Court, Alipore, South 24 Parganas in Criminal Motion No. 105 of 2014 whereby the order dated 15.09.2014 passed by Learned Judicial Magistrate, 2nd Court, Alipore in connection with BGR no. 3057 of 2008 was set aside, is under challenged.
Background:
2. On 16.08.2009 one Sumit Kumar Ghosal (complainant/petitioner) lodged a complaint before the Additional Chief Judicial Magistrate, Alipore under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) alleging, inter alia that Sanchay Kumar Samanta (opposite party/accused) was inducted as tenant in respect of his flat no. 2F, Ekta Height under an agreement on payment of rent of Rs. 20,000/- per month for the period of 11 months. All on a sudden one Learned Advocate on behalf of the accused/opposite party sent a letter asking him to inform the date of sale of the said flat as per agreement instead of vacating the flat after expiry of the leave and license agreement. The petitioner/complainant inform the matter Ekta Height Owners Association as well as officer in charge of Jadavpur Police Station, who recorded the same vide GDE No. 1535 of 2008 dated 16.08.2008. It was alleged that petitioner/complainant never entered into any agreement for sale and thereby opposite party/accused in connivance with others committed offence punishable under Section 420/406 read with Section 465/511 of the Indian Penal Code (hereinafter referred to as IPC).
3. On receipt of that complaint, Jadavpur Police Station Case No. 476 dated 16.08.2008 was started. During investigation witnesses were examined and recorded their statement and also some documents were seized in respect of ownership of the flat, lease agreement, letter sent by opposite party/accused through his advocate etc. Notice was issued asking him to produce agreement between the parties regarding sale but the opposite party/accused replied by advocate letter that original deed was deposited in the Learned Court of 5th Civil Judge, Senior Division, Alipore. But, during investigation it was revealed from information slip issued by the said court that no such agreement for sale was ever deposited with the court. Therefore, prima facie charge being established against the opposite party/accused Investigation Officer submitted charge sheet against the opposite party/accused under Section 420/406/465/120B of IPC.
4. Opposite party/accused Sanchay Kumar Samanta, presented one application on 16.11.2011 for discharging him from the charge under Section 420/406/465/12B of IPC as there was no question of misappropriation. Learned Chief Judicial Magistrate, Second Court, Alipore returned his findings as under:
“On careful scrutiny I find that the accused was admittedly a license of a flat of the de facto complaint. It appear from the C.D. that the I.O. collected the handwriting of the complaint for the purpose of examination by the hand writing expert. I also find that the accused was asked by the I.O. to produce the original deed for that purpose. But the accused without producing the same, informed the I.O. by a latter of Ld. Advocate that the said document was submitted at the civil court. It also found that the I.O. collected information from the said civil court from which it appears that the said document was not laying at the aid court. Therefore, it is clear that the accused has not denied the existence of said alleged document, rather he will fully did not produce the said document before the I.O for investigation. Now, at this stage the accused cannot take the advantage of his non production of the alleged document. On the contrary adverse presumption can be drawn against him for not producing said document for the purpose of investigation. This is not a state of scanning the avoidance collected by the prosecution. But on perusal of C.D. I find sufficient incriminating materials against the accuse
