IMPORTANT POINT
Criminal proceedings cannot cloak civil disputes; FIR must disclose offence ingredients, and evidence evaluation is not permissible at quashing stage.

JUDGMENT :

(Subhendu Samanta, J.)

1. The instant CRR has been preferred to quash a criminal proceedings being GR Case No. 114 of 2021 pending before the Learned CJM at Jalpaiguri arising out of Kotowali PS Case No. 11 of 2021 dated 8th January 2021.

2. The brief fact of the case is that the private OP No. 2 has lodged a written complaint with the Inspector-in charge of Kotowali Police Station at Jalpaiguri on 17.01.2021 contending inter alia that the OP No. 2 is the representation of a private Limited Company and undertook a construction over a piece of land. The present petitioners were trying to disturb the construction work of the company accordingly they received an order of Learned SDEM so that the present petitioner may not disturb the construction work. During the existence of such order of Learned SDEM, it has been alleged that on 07.01.2021, the present petitioners with the help of some outsider forcefully tried to construct some bamboo structure and also used filthy languages to the company officials and threatened to them with the dier consequences.

3. On the basis of such complaint police has started Kotowali Police Case No. 11 of 2021 dated 08.01.2021 u/s 447/188/506/34 of IPC against the present petitioners and started investigation. After completion of investigation Police has submitted charge-sheet against all the petitioners u/s 447/188/506/34 of IPC vide charge-sheet No. 468 of 2021 dated 13.09.2021. Being aggrieved by such proceeding as well as the investigation, the instant criminal revision has been preferred.

4. Learned Advocate for the petitioners submit that the instant proceeding is the outcome of earlier proceeding initiated by the present petitioner u/s 107 Cr.P.C. The actual dispute is civil in nature and the present OP No. 2 in collusion with other OP No. 3 and 4 has initiated the criminal proceeding against the present petitioners. He further submits the present petitioners are in possession over the land in question with their family since long. The present OP No. 2 preferred a petition before the Learned Executive Magistrate Jalpaiguri u/s 107/116 Cr.PC against the present petitioners.

5. The Learned Executive Magistrate had passed an Ex Parte order directing the present petitioners to appear and file show cause, also directed the IC Kotowali PS that the construction over the land as mentioned in the petition which is going on may not hamper anywhere. IC was further directed to submit a report and to maintain peace and tranquillity over the area. The said order was further extended without considering the objections; thus the present petitioners filed a CRR before this court against the said orders of SDEM. The Co-ordinate Bench of this court has set aside the order passed by the Learned SDEM.

6. He further argued that the present petitioners are in possession over the said land, so the ingredients of offence u/s 447 IPC is not maintainable. He further argued that the FIR u/s 188 Cr.P.C is barred u/s 195 (2) Cr.P.C.. He again submitted charge-sheet by the police is perfunctory. There is no ingredients u/s 506 of IPC to substantiate the allegation in the FIR.

7. Learned Advocate for the petitioner further argued that FIR as well as the charge-sheet is arbitrary and mechanical and Learned Magistrate had taken cognizance of the offence without applying his mind on the basis of the perfunctory charge-sheet. He further argued that it is crystal clear that the present petitioners are in possession of the land so the entire charge-sheet as well as the FIR is liable to be quashed. He argued that the private opposite party no. 2 in collision with OP- 3 and OP- 4 tried to cloak a civil dispute in a colour of criminal proceeding. He prayed for quashing.

8. In support of his contention he cited two decisions of Hon’ble Apex Court 1. (Criminal appeal no. 1285 of 2021) Mithilesh kumar J. Sha Vs. State of Karnataka, 2. Md. Ali and Ors. Vs. State of UP and Ors. Criminal appeal No. 2341 of 2023 in Mithilesh Kumar J. Sha