Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 930

IN THE HIGH COURT AT CALCUTTA
AJOY KUMAR MUKHERJEE, J.
Mohit Kumar Narsria – Appellant
Versus
State of West Bengal and Anr. – Respondents
IA No.CRAN/1/2021, CRAN/3/2022, CRAN/4/2022 in CRR/1727/2020
Decided on : 20-07-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Satadru Lahiri Mr. Vikas Singh Mr. Komal Toshnimel
For the Respondent: Mr. Madhusudan Sur Mr. Dipankar Paramanick, Mr. Pawan Kumar Gupta, Mr. Bratin Kumar Dey Ms. Sofia Nesar Mr. Santanu Sett Ms. Mahesweta Pramanik

The inherent power of the High Court under Section 482 of the Cr.P.C. should not be exercised to quash a criminal proceeding unless the allegations made in the FIR do not constitute ingredients of a cognizable offense or the continuance of the investigation would be an abuse of the process of the court.

Headnote:
CRIMINAL - QUASHING OF FIR - SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE (CR.P.C.) - INHERENT POWER OF HIGH COURT - COGNIZABLE OFFENCE - INGREDIENTS - FIR CONTENTS - SCRUTINY - STAGE OF INVESTIGATION: 1. The inherent power of the High Court under Section 482 of the Cr.P.C. to quash criminal proceedings arises only when an allegation made in the FIR does not constitute ingredients of a cognizable offence. 2. At the stage of considering an application to quash an FIR, the High Court is entitled only to examine the allegations made in the FIR and cannot embark on an appreciation of evidence. 3. If a prima facie case is made out disclosing ingredients of the offense alleged against the accused persons, the court cannot quash the criminal proceeding. 4. The fact that the police have put a particular section in the formal FIR is not decisive in determining whether the FIR discloses a cognizable offense. The settled principle is "fact constitutes offense." 5. The inherent power of the High Court should not be exercised to stifle a legitimate prosecution.
Fact of the Case:

The petitioners, accused in a criminal case, filed applications under Section 482 of the Cr.P.C. seeking to quash the FIR and the subsequent proceedings initiated against them. The FIR alleged offenses of wrongful confinement, extortion, and criminal trespass, among others. The petitioners contended that the allegations were false, vague, and did not constitute cognizable offenses. They also argued that the investigation was biased and that the investigating officer was not taking any action.
Finding of the Court:

The court observed that the allegations made in the FIR, if taken at face value, disclosed cognizable offenses. It noted that the investigation was at a budding stage and that the Magistrate had ordered further investigation after finding that vital witnesses had not been examined. The court held that it could not quash the FIR at this stage and that the inherent power under Section 482 of the Cr.P.C. should not be exercised to stifle a legitimate prosecution.
Issues: 1. Whether the allegations made in the FIR disclosed cognizable offenses? 2. Whether the investigation was biased and the investigating officer was not taking any action?
Ratio Decidendi: 1. The court held that the allegations made in the FIR, if taken at face value, disclosed cognizable offenses. It relied on the settled principle that "fact constitutes offense" and that the fact that the police had put a particular section in the formal FIR was not decisive in determining whether the FIR disclosed a cognizable offense. 2. The court held that it could not quash the FIR at this stage and that the inherent power under Section 482 of the Cr.P.C. should not be exercised to stifle a legitimate prosecution.
Final Decision: The court dismissed both the applications filed by the petitioners, refusing to quash the FIR and the subsequent proceedings initiated against them.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Due to Commonality of the issues involved in both the cases being CRR 1727 of 2020 and CRR 1466 of 2020, both the applications are disposed by this common order. The accused persons being accused no. 1 to 8 filed CRR 1727 of 2020 and the other accused person being accused no.9 separately filed CRR 1466 of 2020 under section 482 of the Code of Criminal Procedure (Cr.P.C) seeking quashing of aforesaid proceeding. Both the Applications, relate to New Town Police Station Case No. 238 of 2019.

2. Petitioners case is that the petitioners, from a notice dated 12.09.2020 under section 41 A of Cr.P.C. came to know that the opposite party no. 2 herein, initiated a criminal proceeding against them at New Town Police Station. From the record of the case it reveals that the First Information Report (FIR) in connection with aforesaid New Town Police Station case, earlier culminated into FRT (investigation closure report). However, said final report regarding closure of investigation dated 31.10.2019 was challenged by filing a Naraji petition, copy of which never served upon the petitioners herein.

3. Petitioners’ further contention is that subsequently the court below allowed said Naraji petition without hearing petitioners/accused persons and directed for further investigation of the case under section 173 (8) of Cr.P.C. According to the petitioners said order is illegal per se, since learned Magistrate failed to appreciate that the said final report dated 31st October, 2019 was challenged by the opposite party No.2/defacto complainant on vague grounds that vital witnesses were not examined whereas in the final report dated 31.10.2019 being no. 485 of 2019, it has been clearly mentioned in column 17 that the investigating officer had several time served notice under section 161 and 91 of Cr.P.C. on the opposite party no. 2 herein, but he did not turn up. The court below failed to appreciate that the complaint was vague and without any particulars or document, evidencing any offence nor any medical document has been disclosed evidencing the occurrence of the alleged offence. In fact the allegations made against the petitioners are false and frivolous. The opposite party no. 2/complainant is the father in law of accused no. 1 Smt. Neha Khaitan and accused no. 2 and 3 are the father and mother of accused no.1/Neha. Accused no. 4 and 5 are brother and sister and accused no. 6 and 7 are uncles of accused no.1/Neha Khaitan. Accused no. 9 is the married sister of Neha and accused no. 8 is the husband of accused no. 9.

4. The marriage of said Neha took place on 15.07.2014 with Pranab Khaitan, being the son of opposite party no. 2 which was subsequently solemnised on 06.12.2014. Subsequent to the marriage said Neha went to United States of America (USA) with her husband, as her husband was employed in USA. They are blessed with a male child. However, it is alleged that said Neha was being tortured by the opposite party no. 2 and his family members in connection with demand of dowry, since the inception of marriage. Neha tried her level best to live amicably with her husband for the well being of their child. In October, 2018, Neha and her husband along with minor child came to India. Neha stayed at her matrimonial home for some time till 14.05.2019 but as the family members of her husband treated her with cruelty and tortured, her she went to her father’s house along with her father at Rourkella, Odissa and other accused persons were not in Kolkata on that date. Most of the petitioners did not visit the residence of opposite party no. 2, which will be evident from the register of visitors maintained at the gate of the complex of the residence of opposite party no. 2. It is also submitted by the petitioners that therefter several legal proceedings started amongst the parties and Neha filed a complaint under section 498-A, 506/34 of the Indian Penal Code (I.P.C.) read with section 4 of Dowry Prohibition Act, being GR