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Judgment
CHAITALI CHATTERJEE DAS, J.:-
This revisional application has been filed for setting aside the order dated 28.4.2023, whereby the prayer of the petitioner for discharge under section 239 of Cr.P.C, 1973 was dismissed in the proceeding being GR case no. 1911 of 2016, arising out of Bolagarh P.S case no. 183/2016 dated 16.9.2016, under section 341/323/427/504/506/34 of the Indian Penal Code by the learned Judicial Magistrate, Additional Court, Hooghly.
Brief fact of the case
The petitioners have been arraigned as accused persons in connection with the G.R case, based on a complaint lodge by the opposite party no. 2 against the petitioners alleging that the complainant is an Ayurvedic doctor and had been working as an Assistant medical officer under Hooghly Zilla Parishad at Dumurdah Nitanandapur 1 no. Gram Panchayat Sub-centre. It has been alleged that on 14.7.2015 at about 12.45 PM while he was on duty in the Gram Panchayat office, the petitioners entered into his chamber and assaulted him, used abusive languages and threw medicines which were kept on his table and also damaged his stethoscope. The Pradhan, Upa-Pradhan, and other officials failed to stop the petitioners from carrying out such illegal activities and the patients who came to the chamber ran away after seeing such aggressive act of the petitioners. The Pradhan intimated the Police Station over phone and the office of the Block development officer and the opposite party no.2 also reported the incident to Balagarh Police Station and before the Block development officer but police did not take any action. Having no other alternative, he had to lodge the complaint under Section 156(3) Cr.P.C. After investigation, the charge sheet has been submitted on 31.12.2016 against the petitioners under Section 341/323/427/504/506/34 Indian Penal Code, 1860.
It is the further case of the petitioner that they entered appearance in the case and prayed for discharge by filing an application under Section 239 of Code of Criminal Procedure, 1973 which was rejected by the learned Magistrate after hearing. Assailing such order, this revisional application has been filed for setting aside the said order.
Submissions
The learned advocate representing the petitioner argued that the order passed by the learned Magistrate is not maintainable in the eye of law in view of the fact and circumstances of the case. It is submitted that the allegation of assault are vague and omnibus in nature. The petitioners threatened of murdering which was reported to the concerned police station and BDO, Balagarh on 23.7.2014. The complainant reported inaction of the concerned police station by s letter dated 20.7.2016 but it was of no avail.
It is further argued that there are serious discrepancies in giving the time of occurrence in the petition of complaint. In the charge sheet, it is noted as 14.7.2015, when in Section 161 statement, the date has been mentioned as 14.7.2014. Nothing is there on record that can be translated into evidence during the course of trial to indicate that this was mere typographical error. The alleged in action of the concerned Police Station was informed to the SP, Hooghly on 20.7.2016 and subsequent to the complaint under section 156(3) Cr.P.C. was initiated. No seizure can be found from the charge sheet, though it was alleged that multiple articles were destroyed.
It is further submitted that as the petitioners have invoked Section 482 Cr.P.C. this Court can pass necessary order to prevent abuse of the process of any court or to secure the end of justice, even if the same is not specifically prayed. In this regard he referred the decision of M.E. Shivalingamurthy vs Central Bureau Of Investigation1. The Learned Advocate is further argues that if two views are possible and one of them give rise to suspicion only as distinguished from suspicion, the trial judge would be empowered to discharge the accused person. In the instant case, the discrepant, vague, general, and omnibus nature of the allegations as pointed out in the factual submissions by the petitioner, give rise only to mere suspicion and not grave suspicion. The court has to consider the broad probability and total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. There must exist some materials for entertaining the strong suspicion which can form the basis for a charge and refusing to discharge the accused or since. Put reliance on the decision of Kanchan Kumar versus State of Bihar2. The learned advocate has further put reliance on the decision of Sharif Ahmed and Another versus State of Uttar Pradesh and Another3 as the Investigating Officer failed to make clear and complete entries of all the columns in order to enable the court to understand which crime has been committed by which accused and what is the material evidence available on the file. The role played by the accused in the crime should be separately and clearly mentioned in the chart sheet for each of the accused person, but that has been violated.
The learned advocate further referred the decision of Hasin Jahan and Others versus State of West Bengal in CRR 766 of 2022 passed by the learned coordinate bench where it was observed that there is no allegation in the FIR that the accused persons obstructed the complaint or that they prevented the complainant from proceeding in certain direction in which the complainant had the right to proceed and accordingly, quashed the proceeding. Accordingly prayed for setting aside the order.
Per contra the learned advocate representing the opposite party no. 2 raises his objection and submits that he is a practising doctor and attached with the Gram Panchayat and while he was discharging his duties, the petitioners attacked him and assaulted him physically and also ransacked his chamber. The patients were afraid and left the hospital. His medical instruments were destroyed. The police did not take any action despite the report was made not only by him, but also by the Pradhan of the Gram Panchayat. It is further submitted that the date has been incorrectly mentioned in the petition of complaint and it ought to have been 14 July 2015, not 14 July 2014. The delay in lodging the complaint is explained in the petition of complaint as the police official did not take any steps but assured to take steps. The petitioner made application under RTI Act before the deputy SP (HQ) SPIOI requesting him to provide information whether any F.I.R is lodged on the basis of the complaint dated 23.7.2014 and 24.7.2014 and charge sheet has been submitted or not, but no information was provided. He had to intimate the Secretary, Department of Home affairs, government of West Bengal, but no. F.I.R was lodged till date.
It is further argued that on completion of investigation the investigating authority has submitted the charge sheet against the present petitioner on the basis of the evidence collected in course of the investigation. The learned Magistrate duly considered the application filed for discharge and held that the ground set out by the petitioners for discharge appearing to be preconceived. In the charge sheet, it is mentioned that Investigating Officer found no context to arrest the accused after compliance of notice under Section 41-A Cr.P.C. More so at the time of framing of charge or taking cognizance, the accused has no right to produce any material. Therefore, there is no reason to interfere with such order and the petitioner must face the trial.
On behalf of state, the learned Advocate submits that during investigation on the basis of available materials and the statements recorded under Section 161 Cr.P.C and after meeting with the accused persons as per notice under Section 41-A Cr.P.C, submitted the charge sheet. Therefore, prima facie allegation levelled against the petitioners is well established and the veracity of the same can be ascertained only in course of trial. Accordingly prayed for dismissal of this revisional application.
Analysis
Heard the submissions of the learned respective Counsels. Perused the materials on record and the case diary submitted by the learned prosecution. The order assailed before the court is refusal to allow the prayer for discharge. The present petitioner no.1 is the wife of the opposite party no. 2, the petitioner no. 2 is the husband of her sister and petitioner no. 3 is elder brother of the petitioner no. 1. The instant complaint is an outcome of the marital dispute prevailing between the petition and number one and opposite party no. two. The marriage between the parties took place in August 2009 and soon after her marriage, she started living in our matrimonial house. She was working as a teacher in a school at Rishra and used to commute from her matrimonial house at Mogra to her School at Rishra. Within six months of their marriage she was subjected to physical and mental torture and unjustified demands were made and being unable to bear the same she had to take shelter in her parent house at Kalindi (Lake Town) in August 2010. She was forced to leave the matrimonial house when she was pregnant and she delivered a baby boy on ninth February to 2011 at Chandannagar Nursing Home supervision of her elder sister. Neither the opposite party nor anyone from his family ever came to see the child and they also refused to take back the petitioner No.1 and her child to their house. Since then neither of the opposite parties ever made any attempt to meet the child.
In the month of July 2013, the petitioner no. 1 and her brother went to the matrimonial house to achieve a reconciliation, but they were driven out and finding no other alternative, she lodged an FIR against the opposite party no. 2, under Section 498A of the Indian Penal Code, 1860, which was registered as Mogra PS case no. 262 of 2014 dated 14.7.2014. On completion of investigation, the charge sheet has been filed against the Opposite Party no. 2, and the trial of the case has commenced and witness action has been initiated. In addition a matrimonial suit for divorce being Mat Suit no. 48901 of 2014. Praying for a decree of divorce was also filed by petitioner no.1 against the opposite party no. 2 and a counter claim has been filed by the opposite party no. 2 for praying for restitution of conjugal right. The matrimonial suit is also pending where the dates are fixed for hearing of the argument.
Therefore, a dispute between the petitioner no.1 and the opposite party no. 2 are very much evident. On close scrutiny of the materials collected in course of investigation it appears that the date of the alleged incident as stated by the various witnesses as recorded by the Investigating officer was 14th July, 2014.In fact the Pradhan was stated the date as of 14th July 2014. The defacto complainant himself stated the date as 14th July 2014 but in the petition of complaint on affidavit disclosed the date as 14th July 2015. In the said complaint he further disclosed that the complaint was lodged before Balagarh Police station on 14th July 2014. The statements are absolutely silent about any incident taken place on 14.7.2015. In fact on 14.7.2014, the petitioner No. 1 lodged the FIR under Section 498A IPC against the complainant and other relatives. It is significant to note on the strength of such complaint the case was started and the Investigating officer while submitting the chargesheet specifically mentioned in column 15 that the incident took place on 14th July 2015. This court failed to understand that when the statements so recorded discloses an incident of a different date hoe the I.O ignored the same and mechanically submit the charge sheet.
In view of the above inconsistencies, the argument advanced before this Court by the learned Advocate of the opposite party no. 2 with regard to the date of incident being a typographical error cannot be accepted. In such circumstances, the delay in lodging the complaint becomes for more than two years. He did not annex any necessary documents in support of his contention when the written complaint was lodged before the concerned police station. In addition, it is found that the complaint is completely devoid of any specific role attributed against any of the petitioners.
In the decision of M.E Sivalingam Murthy (Supra) the legal principles featured applicable in regard to an application seeking discharge of an accused are discussed. It was observed that the trial judge is not a mere post office to frame the charge at the instance of the prosecution. The legal principles enunciated in the said decision by the Hon’ble Supreme Court are as follows.
“17.This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and another4 and discern the following principles:
17.1.If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.
17.2.The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.
17.3.The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.
17.4.If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, “cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial”.
17.5.It is open to the accused to explain away the materials giving rise to the grave suspicion.
17.6.The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.
17.7.At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
17.8There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.”
In the instant case, the learned Magistrate should have considered that serious inconsistencies are there with regard to the date of incident . There are lack of materials to explain such inordinate delay in lodging the complaint. There was no seizure list by the investigating officer when the specific allegation was that the furniture were broken, and the medicines were thrown away. In the decision of Sharif Ahmed and another (Supra) it was observed by the Hon’ble Supreme Court that-
“25.It is the police report which would enable the Magistrate to decide a course of action from the options available to him. The details of the offence and investigation are not supposed to be a comprehensive thesis of the prosecution case, but at the same time, must reflect a thorough investigation into the alleged offence. It is on the basis of this record that the court can take effective cognisance of the offence and proceed to issue process in terms of Section 190(1)(b) and Section 204 of the Code. In case of doubt or debate, or if no offence is made out, it is open to the Magistrate to exercise other options which are available to him.”
It was further held that the charge sheet is nothing but the final report of the police officer which provides that on completion of the investigation, the police officer investigating into cognizable offence shall submit a report. The statutory requirement of the report under Section 173 (2) would be complied with if the various details prescribed during are included in the report. The final report has to be prepared with this aspect in mind and should show with sufficient particularity and clarity, the contravention of the law which is alleged. It was further held that nature and standard of evidence to be elucidated in a charge sheet, should prime show that an offence is established if the material and evidence is prove. It was further held that charge sheet is complete where the case is not exclusively dependent on further evidence.
In the instant case, the investigating officer, while submitting the charge sheet did not discuss as to how he arrived at the opinion that all the petitioners committed the offences alleged when the complaint was devoid of any specific overt act by any of the petitioner. In the case of Kanchan Kumar (Supra) the Hon’ble Supreme Court took note the paragraph 23 of Dipakbhai Jagdishchandra Patel v. State of Gujarat5 and held that-
“23.At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full- fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.”
On careful consideration of the entire facts and circumstances and other attending circumstances the dispute between the complainant and the petitioner no. 1 are well founded. The inordinate delay in lodging, the complaint has not been explained, and there are sufficient inconsistencies with regard to the date of alleged incident, and the investigating officer has failed to substantiate since nothing was seized and did not deal with the difference of date. All the statements were recorded long after two years from the date of alleged incident if the date is accepted as 14.7.2014.
The learned Judge was of the view that at the initial stage on the basis of the materials available the prayer for discharge should not be granted but the Learned Magistrate failed to take into account the in ordinate delay without proper explanation and no proper reasons assigned while refusing the prayer for discharge in accordance with the dictum of the Hon’ble Supreme Court. The stand taken at the behest of the opposite party that there was a typographical mistake in the written complaint cannot have any legs to stand since he entire investigation conducted on the basis of such allegation and most significantly the said point was never clarified and the charge sheet further contains the said year of 2015 which glaringly portrays the mode and manner in which such investigation has been done.
Conclusions
Hence, considering the entire facts and circumstances this court is of the view that the order passed by the Learned Magistrate is liable to be set aside.
Accordingly the order passed by the learned Judicial Magistrate, Additional Court, Hooghly dated 28.4.2023 dismissing the discharge application under section 239 of Cr.P.C, 1973 in the proceeding being GR case no. 1911 of 2016, arising out of Bolagarh P.S case no. 183/2016 dated 16.9.2016, under section 341/323/427/504/506/34 of the Indian Penal Code by the is hereby set aside.
The petitioners are hereby discharged from the charges made against him in the charge sheet.
All other connected application, if any, hereby stand disposed of.
Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities.