Uzzal Saha v. State Of West Bengal And ORS.

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION Appellate Side

Present:

The Hon'ble Justice Ajay Kumar Gupta C.R.R. 1197 of 2021 With CRAN 1/2021 & CRAN 3/2022 Uzzal Saha

Versus

The State of West Bengal & Another For the Petitioner : Mr. Shekhar Kumar Basu, Ld. Sr. Adv.

Mr. Apurba Kumar Ghosh, Adv.

Mr. Rudranil Ghosh, Adv.

For the Opposite Party No. 2 : Mr. Sabyasachi Banerjee, Ld. Sr. Adv.

Mr. M. S. Tiwari, Adv.

Ms. Shweta Poddar, Adv.

For the State : Ms. Anasuya Sinha, Adv.

Mr. Pinak Kr. Mitra, Adv.

Heard on : 06.11.2024 Judgment on : 04.12.2024

Ajay Kumar Gupta, J:

1.

By filing this Criminal Revisional application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973, the petitioner being the accused person has prayed for quashing of the proceedings being English Bazar Police Station Case No. 1209/2020 dated 15.12.2020 corresponding to G.R. No. 5737 of 2020 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 as well as quashing of the proceedings being English Bazar Police Station Case No. 278/2021 dated 04.03.2021 corresponding to G.R. No. 1114 of 2021 arising out of a direction passed by the Learned Magistrate in a petition of complaint filed under Section 156(3) of the Code of Criminal Procedure, 1973 being M.P. Case No. 70/2021 (Palash Saha Vs. Ujjwal Saha and Ors.) and also prayed for setting aside the impugned order dated 05.04.2021 thereby Learned Judicial Magistrate directed to tag two FIRs being English Bazar Police Station Case No. 278/2021 and English Bazar Police Station Case No. 1209/2020 for investigation. 2.

The brief facts, leading to filing of this instant Criminal Revisional application, are as under:

2a.

The English Bazar Police Station Case No. 1209/2020 dated 15.12.2020 corresponding to G.R. No. 5737 of 2020 under Sections

406/417/420/467/468/471 of the Indian Penal Code, 1860 has been initiated on the basis of a written complaint dated 14.12.2020 lodged by the Opposite Party No. 2/ complainant to the Inspector-inCharge, English Bazar Police Station alleging therein that the petitioner has forged the complainant's signature and filed a false letter of resignation in the name of complainant to the Ministry of Corporate Affairs Portal in order to defraud the affairs of the Company in which the complainant happens to be a Director. Accused persons had submitted false letter of resignation on behalf of the Director/Complainant to the company to defraud the company as well as complainant. The said forged signature was also used to access the company's bank account and assets of the company for petitioner's exclusive benefits.

2b.

The petitioner herein along with one Dilip Kumar and the Opposite Party No. 2 were three Directors of M/s. Malda Cold Storage Private Limited situated at South Jadupur, District - Malda. 2c.

Subsequently, despite knowing that a case had already been initiated against the Petitioner, the said Opposite Party No. 2 filed a petition of complaint under Section 156(3) of the Code of Criminal Procedure, 1973 before the Learned Chief Judicial Magistrate at Malda on 23rd February, 2021 suppressing the fact that registration of FIR has already been made against the Petitioner. It was falsely

affirmed under oath and also stated in the Affidavit that no case and/or proceedings has been initiated either in the Police station or before any Court of law concerning the subject matter of the complaint/petition and the same was true to his knowledge. The case was registered as MP Case No. 70/2021. Wherein it was alleged that the petitioner, Opposite Party No. 2 herein and the complainant were the Directors of M/s. Malda Cold Storage Private Limited situated within the jurisdiction of English Bazar Police Station at Dakshin Jadupur. One Sri Chirau Sarada, the accused No. 2 therein was a Chartered Accountant of the said company and the said Chirau Sarada was a loyal associate of the petitioner, Uzzal Saha. 2d.

Both accused were responsible for day-to-day affairs of the company. They conspired to make the complainant to sign on three blank papers under the pretext of using them for the purpose of Income Tax and Cold Storage purposes, which he did on good faith. On 28.12.2020, both the accused fraudulently forged complainant's electronics signature affix and on 10.11.2020, the complainant discovered that without his knowledge, they illegally issued resignation letter from the office of Director of Company and falsely removed him from the position of Director. They also misappropriated huge amount from the company's fund. In order to defraud the affairs of the company and the complainant, both the accused

misappropriated all investments together with assets and properties worth over Rs. 10 Crore. Despite reporting the matter to the local police station and the Superintendent of Police, no action was taken. Therefore, the prayer was made before the Learned Court to direct the English Bazar Police Station to register FIR against the accused treating the petition of complaint filed under Section 156(3) of the Code of Criminal Procedure, 1973.

2e.

The Learned Magistrate directed the registration of an FIR and initiation of investigation though the petition of complaint was on the basis of misleading affirmation on oath by the opposite party no. 2 before the Learned Chief Judicial Magistrate at Malda. The second FIR being English Bazar Police Station Case No. 278/2021 dated 04.03.2021 has been registered upon the direction passed by the Learned Magistrate in a petition of complaint filed under Section 156(3) of the Code of Criminal Procedure, 1973. This occurred despite the existence of a former FIR being English Bazar Police Station Case No. 1209/2020 dated 15.12.2020 corresponding to G.R. No. 5737 of 2020 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 on the basis of written complaint on the same allegation and incident against the petitioner.

2f.

On the same and similar allegations, English Bazar Police Station had initiated a case being English Bazar Police Station Case No. 1209/2020 dated 15.12.2020 corresponding to G.R. No. 5737 of 2020 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 against the Petitioner. Therefore, the second FIR is not maintainable on the self-same allegation and incident. The Second FIR is motivated, barred and extraneous. The Learned Court below also overlooked the misleading statement made in the affidavit by the complainant/opposite party no. 2 on oath though the opposite party no. 2 was aware about the earlier complaint and initiation of the investigation. Despite the said facts, by order dated 05.04.2021, the Learned Chief Judicial Magistrate directed for tagging of two FIRs being English Bazar Police Station Case No.

278/2021 dated 04.03.2021 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 with English Bazar Police Station Case No. 1209/2020 dated 15.12.2020 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 on the prayer of the Investigating Officer, which is not at all permissible under law. The action of the opposite party no. 2 demonstrates that he has initiated illegal, false and fabricated proceeding based on the false allegations. Hence, this Criminal Revisional application.

SUBMISSIONS ON BEHALF OF THE PETITIONER:

3.

Mr. Basu, learned senior counsel appearing on behalf of the petitioner vehemently argued and submitted that the second FIR drawn on the basis of Learned Magistrate's direction in an application filed under Section 156 (3) of the Code of Criminal Procedure, 1973 is not maintainable and barred by law. Even if, the allegations are taken to be true, they do not fulfil essential ingredients of the alleged offences against the present petitioner. Furthermore, the opposite party no. 2 has falsely stated in the affidavit filed in MP Case No. 70/2021 that no case and/or proceeding has been initiated either at the police station or before any Court concerning the subject matter of the complaint and the same was true to his knowledge. The entire proceeding, based on this misleading and false representation is liable to be quashed, as it would be an abuse of process of law. 3a.

It was further submitted that initial proceeding being English Bazar Police Station Case No. 1209/2020 dated 15.12.2020 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 and English Bazar Police Station Case No. 278/2021 dated 04.03.2021 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 have been tagged by virtue of an illegal and erroneous order dated 05.04.2021 passed by the Learned Chief

Judicial Magistrate, Malda against the present petitioner which is liable to be quashed to secure the ends of justice. 3b.

Mr. Basu, learned senior counsel appearing on behalf of the petitioner has placed a reliance of a judgment rendered in the case of Paramjeet Batra Vs. State of Uttarakhand & Ors.1 to support of his contention that the complainant lodged complaint alleging, inter alia, forgery and fabrication of documents to grab the profit of the business of the company is a civil dispute. The allegation levelled by the complainant can be dealt in the Civil Court, therefore, continuation of criminal proceeding would be abuse of process of law. Hence, it is liable to be quashed.

3c .

Mr. Basu, learned senior counsel has further placed reliance another judgment passed by the Hon'ble Supreme Court in the case of Baban Singh and Another Vs. Jagdish Singh and Others2 to bolster his submissions that the proceeding should be quashed if the criminal proceedings initiated twice occasions against the Petitioner based on false contention on oath in the affidavit and when it came to the knowledge of the Learned Magistrate with regard to the false and misleading statement made in the affidavit on oath, Court ought not 1 (2013) 1 C Cr LR (SC) 755.

2 AIR 1967 Supreme Court 68.

to be directed to tag two FIRs on the same allegation and incident as such, same is liable to be set aside.

SUBMISSION ON BEHALF OF THE OPPOSITE PARTY No. 2: 4.

Per contra, Mr. Banerjee, learned senior counsel appearing on behalf of the opposite party no. 2 vehemently opposed the prayer of the petitioner and candidly submitted that while it is true that second FIR is not maintainable on the same allegation and incident, any evidence collected in the second FIR, may be tagged with initial FIR, then question of prejudice to the Petitioner does not arise. 4a.

He further submitted that the question of suppression, misleading and false statement in the portion of affidavit in the complaint filed under Section 156(3) of the Code of Criminal Procedure, 1973 by the opposite party no. 2 was merely a bona fide mistake at the time of filing the complaint. The complainant never suppressed the fact about the earlier complaint made before the Inspector-in-Charge, English Bazar Police Station. He drew attention of this Court to the averments made in the body of complaint. Complainant has clearly stated that the incident was informed to the local police station and when the police took no steps against the petitioner, the complainant further informed the same to the Superintendent of Police but no result followed. Accordingly, a delay

occurred in filing such written complaint before the Learned Magistrate. Therefore, question of suppression or misleading or false representation does not arise at all.

4b.

It was further submitted that the judgment referred by the learned senior counsel appearing on behalf of the petitioner i.e. Paramjeet Batra Vs. State of Uttarakhand & Ors., is not at all applicable in the present case because in that case, a civil suit was filed and the said civil suit was pending prior to the filing of the complaint wherein the complainant tried to lodge FIR against the appellant by moving an application under Section 156(3) of the Code of Criminal Procedure, 1973. The same was dismissed because a separate case was initiated earlier under Section 406 of the Indian Penal Code, 1860 and the same was decided in favour of the accused by acquitting him. The criminal proceeding was quashed not on the basis of acquittal but the property in question i.e. shop was vacated by the accused and handed over the possession to the complainant. Therefore, such findings are not at all applicable in the present case. 4c.

It was further submitted that even for the sake of argument if someone misrepresented or made misleading statement before any Court of law then appropriate procedure is stipulated under Section 340 read with Section 195 of the Code of Criminal Procedure, 1973. Without initiation of proceeding under Section 340 of the Code of

Criminal Procedure, 1973, a proceeding pending before the Court cannot be thrown out. At best, the second FIR started on the basis of direction of the Learned Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 may be overlooked after tagging both FIRs and the materials collected in the said proceeding may be used with the initial FIR so none would be prejudiced. To support of his contention, he has placed reliance of a judgment of the Hon'ble Supreme Court in the case of Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and Another3 as such, the Criminal Revisional application is liable to be dismissed. SUBMISSION ON BEHALF OF THE STATE:

5.

Learned counsel appearing on behalf of the State produced the Case Diary and supported the contention of the Opposite Party No. 2. It was submitted that second FIR is not permissible in law but the same may be overlooked when it was directed to tag with former FIR. The allegation of the Opposite Party No. 2/complainant found to be true and also established prima facie case against the petitioner while conducting investigation as such, the Criminal Revisional application is liable to be dismissed.

3 (2013) 6 SCC 348.

DISCUSSIONS, ANALYSIS AND CONCLUSION OF THIS COURT: 6.

Heard the rival arguments advanced by the learned counsels appearing on behalf of the parties and on perusal of the record, this Court finds the complainant lodged a written complaint before the Inspector-in-Charge, English Bazar Police Station and when no action was taken against the petitioner, the complainant informed the same to the Superintendent of Police but no result followed. He realised no action would be taken by the Police authorities, as such he filed a petition of complaint under Section 156(3) of the Code of Criminal Procedure, 1973. Prayer of the complainant was allowed by the Learned Magistrate and directed the Inspector-in Charge to registered an FIR and initiate investigation vide order dated 04.03.2021. On pursuant to such direction passed by the Learned Magistrate, a second FIR being English Bazar Police Station Case No. 278/2021 dated 04.03.2021 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 has been registered against the Petitioner and Investigation was initiated.

7. It appears from the documents annexed with the Revisional Application that the Petitioner had moved an application for anticipatory bail before the Hon'ble High Court in connection with initial English Bazar P.S. Case No. 1209 of 2020 dated 15.12.2020 under Sections 406/417/420/467/468/471 of the Indian Penal

Code, 1860. The said application had come up for hearing on 08.02.2021 and finally after hearing the parties, bail was granted in favour of the Petitioner. On the date of hearing, learned counsels appearing on behalf of the Opposite Party No. 2/De-facto Complainant was present. Therefore, it is clear that the complainant had knowledge of the registration of former FIR. Despite this knowledge, he filed petition of complaint before the Learned Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 on 23.02.2021. This clearly indicates that the intention of the complainant was not bona-fide and he did not approach the Court with clean hands and mind. He suppressed the material facts before the Learned Court below.

However, it had been informed to the Learned Magistrate that the Police had already registered the FIR against the Petitioner and investigation was initiated, then the prayer of the complainant would have been rejected by the Learned Magistrate. Filing of a petition of complaint with an intention to implicate again either to settle personal enmity and/or for harassment violates Articles 20(2) and 21 of the Constitution of India and Section 300 of the Code of Criminal Procedure, 1973 which prohibits double jeopardy.

8. It further appears from the record that the complainant had also filed a Civil Suit being O.C. No. 12 of 2021 against the petitioner

herein and others on the self-same issue before the Learned Civil Judge (Junior Division), 1st Court, Malda.

9. Later, a prayer was made by the Investigating Officer on 05.04.2021 disclosing that there was another FIR lodged against the Petitioner based on the same incident and allegation of the complainant and further prayer was made for tagging of both the FIRs. Acting on this prayer, Learned Magistrate, without considering the relevant provision of law, mechanically tagged both the FIRs for initiation of investigation against the Petitioner. Moreover, the complainant had filed a petition of complaint suppressing the facts that no action has been taken by the police authorities against the petitioner on the basis of his written complaint.

Not only that, Petitioner further affirmed an affidavit stating therein that no case and/or proceeding has been initiated either in the police station or before any Court concerning the subject matter of the complaint and the same was true to his knowledge. Learned magistrate should have looked into the petition of complaint thoroughly but without going through the same, mechanically and without applying judicious mind, directed to register FIR.

preventing the abuse of process of law. The Hon'ble Supreme Court in the case of Priyanka Shrivastava and Anr. Vs. State of U.P. and Ors.4 has observed as under: - "19. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) CrPC, as if, it is a routine procedure. That apart, the proceedings initiated and the action taken by the authorities under the Sarfaesi Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken, it needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation.

It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one-time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bona fides. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made.

4 (2015) 6 SCC 287 : 2015 SCC OnLine SC 272

20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision:

"156.

Police officer's power to investigate cognizable case.-(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252 : 1976 SCC (Cri) 380] , had to express thus : (SCC p. 258, para 17)

"17. ... It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173."

22. In Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] , the two-Judge Bench had to say this : (SCC p. 711, para 11) "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order.

The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient.

detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."

25. Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat [(2015) 6 SCC 439] , while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that : (SCC p. 456, para 22) "22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.

22.2.

The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine 'existence of sufficient ground to proceed'."

10.

Further, in the case of Kapil Agrawal and others vs. Sanjay Sharma and others5 decided on 01.03.2021, the Hon'ble Supreme Court has observed as under:- "6. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.

6.1 As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment. When the Court is satisfied that proceedings amount to an abuse of process of lawor that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed."

11. In the light of aforesaid discussions and in view of the judgments rendered by the Hon'ble Courts, it is clear that the 5 AIR 2021 SC 1241 : AIRONLINE 2021 SC 99.

Opposite Party No. 2/complainant while approaching the Judicial Magistrate by filing a complaint under Section 156(3) of the Code of Criminal Procedure, 1973 has suppressed the material fact that the police or the Superintendent of Police had taken no action on the written complaint as such, having no other alternative, approached the Learned Magistrate. Furthermore, the complainant has made a false statement in the affidavit claiming that no case and/or proceedings has been initiated either in the Police station or before any Court of law concerning the subject matter of the complaint/petition and that this was true to his knowledge. Therefore, it clearly indicates that the direction given for registration of FIR and subsequently order for tagging second FIR with former FIR by the Magistrate is mechanical and without application of mind.

12. It is always expected from a litigant to approach the Court with clean hands. The initiation of any proceeding before any forum should not be for the purpose of harassment of a person. Complainant must disclose all the relevant facts before the Court without concealing or suppressing anything and seek appropriate relief. If there is no candid disclosure of relevant and material facts or the complainant is guilty of misleading the Court, his petition of complaint may be dismissed at the threshold without considering the merits even. The rule has been evolved in large public interest to

deter unscrupulous litigants from abusing the process of law by deceiving the Court.

13.

The submission made by the learned senior counsel appearing on behalf of the opposite party no. 2 with regard to tagging of the materials collected during the investigation in the second FIR with the former proceedings would not prejudice to any one is not acceptable because whatsoever materials collected in the second FIR would be highly prejudiced to the petitioner and also result in double jeopardy. First FIR and second FIR, initiated on the same allegation and incident, are not permissible in law.

14.

The judgment relied upon by the learned senior counsel for the OP No. 2 passed by the Hon'ble Supreme Court in the case of Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and Another is not applicable to the present case. In the cited case, the Hon'ble Supreme Court allowed the second charge sheet to be treated as a supplementary charge sheet to first FIR. However, the Court clarified that it had not examined the merits of the case and left it open for the Learned Trial Court to decide. The facts of the said case involved two separate FIRs lodged for two different encounters, whereas in the present case, both the FIRs are based on same allegation and incident, which is not permissible in law. Materials collected in the second FIR would cause prejudice to the petitioner.

15.

Consequentially, CRR 1197 of 2021 is, thus, partly allowed. CRAN 1/2021 and CRAN 3/2022 and all connected applications, if any, are also, thus, disposed of. 16.

Accordingly, Second FIR being English Bazar Police Station Case No.

278/2021 dated 04.03.2021 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 against the Petitioner is hereby quashed insofar as the Petitioner is concerned and impugned order dated 05.04.2021, whereby the Learned Magistrate allowed to tag both the FIRs is also set-aside. It is made clear that investigation of English Bazar Police Station Case No. 1209/2020 dated 15.12.2020 corresponding to G.R. No. 5737 of 2020 under Sections 406/417/420/467/468/471 of the Indian Penal Code, 1860 shall be conducted as usual in accordance with law because from the perusal of Case Diary, it appears there are sufficient prima facie materials against the petitioner. 17.

Case Diary, if any, is to be returned to the learned Advocate for the State.

18.

Let a copy of this judgment and order be sent to the Learned Court below for information and taking necessary action. 19.

Interim order, if any, stands vacated.

20.

Parties shall act on the server copies of this Judgment and Order uploaded on the official website of this Court. 21.

Urgent photostat certified copy of this Judgment, if applied for, is to be given as expeditiously to the parties on compliance of all legal formalities.

(Ajay Kumar Gupta, J) P. Adak (P.A.)