Susheel Dixit v. M/S Barefoot Resorts And Leisures Pvt. Ltd.

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE AJOY KUMAR MUKHERJEE CRR No. 7 of 2022 Susheel Dixit and another ... Petitioners

Versus

M/S Barefoot Resorts and Leisure's Pvt. Ltd.

... Respondents For the petitioners : Mr. Gopala Binnu Kumar For the respondents : Mrs. Anjili Nag Heard on : August 26, 2022 Judgment on : August 26, 2022 AJOY KUMAR MUKHERJEE, J.

(Oral) 1.

Being aggrieved by and dissatisfied with the order dated 29.12.2020 passed by the learned Judicial Magistrate, First Class-I, Port Blair whereby the learned Trial Court directed investigation under Section 202 of the Code of Criminal Procedure (hereinafter called as Cr.PC) in connection with a complaint filed by the respondent under Section 200 of the Cr.PC, being CR 95 of 2020.

2.

Mr. Gopala Binnu Kumar, learned counsel appearing on behalf of the petitioner submits that there was a lease

agreement in between the petitioner no. 1 and the respondent in respect of a land measuring an area of 1.93 hectares in Survey No. 63 at Radha Nagar, Swaraj Dweep. After expiry of the lease period on 31.08.2014, various issues cropped up between the petitioner no. 1 and the respondents and several litigations were filed by them against each other. It is submitted by Mr. Kumar that initially on 27.01.2018, respondent made a complain at the Station House officer, Swaraj Dweep against the petitioner no. 1 with the allegation that petitioner No.1 has threatened the staff of respondent and inquiry was held by police wherein enquiry officer came to the conclusion that the matter is purely civil in nature and the subject matter is sub-judiced before the court of law. Then again after two years on 22.08.

2020 the petitioner made a second complain before Station House Officer making allegation of removal of security cameras of respondent and inquiry was conducted by police, who came to the conclusion that the allegation levelled in the complaint are baseless and the matter seems to be related with the land dispute which is civil in nature. Then once again on 05.08.2021, the staff of respondent made complaint before Station House Officer, Swaraj Dweep against the petitioner no.1 alleging that freshly cut logs were found at the place and again the inspection was conducted where no adverse finding was made against the petitioners.

3.

Subsequently, on 27.11.2020 twenty odd persons along with Manager of respondent/Resort forcefully entered into the premises of the petitioners and committed mischief and forcefully taken water. Present petitioner no.1 lodged allegations against such criminal acts made by the respondent before the police authority at Swaraj Dweep but nothing yielded. Subsequently, petitioners shocked to receive ex-parte conditional order dated 02.12.2020 passed in a proceeding under Section 133 of the Cr.PC being case No. 145/2020 whereby direction was passed to restore water supply of respondent within 15 days, which was subsequently confirmed on 12.07.2021.

4.

Petitioners submits, when police authority did not initiate appropriate action against persons involved in criminal act, on 27.11.2020, the petitioner no. 1 filed a complain under Section 156 (3) Cr.PC before the Court of learned Chief Judicial Magistrate, Port Blair and learned Chief Judicial Magistrate was pleased to direct the police to initiate an FIR, which is under investigation.

5.

Once again on 28.10.2021 the Managing Director and employees of the respondent, illegally entered into the premises of the petitioner to lay a new pipe line and for which the petitioner no. 1 objected the same but they forcefully started laying pipe and for which petitioner no. 1 lodged a complain on

01.11.2021 before police. Subsequently, petitioners were horrified to once again receive summon dated 02.11.2021 issued by Sub-Divisional Officer, Port Blair in same proceeding under Section 133 of the Cr.PC being case no. 145/2020. Petitioner challenging the said summon preferred the writ petition being No. 262 of 2021, wherein proceeding being case no. 145 of 2020 was quashed.

6.

Mr. Gopala Binnu Kumar further submits that in the above backdrop, it is quite clear that the dispute between the parties are practically dispute over a piece of land, which is purely civil in nature and allegations and counter allegations and several litigations including civil litigations are pending between the parties. Now in order to give criminality over the dispute between the parties, respondents filed present complaint case being CR case No. 95 of 2020 before the learned Chief Judicial Magistrate, Port Blair.

7.

It is submitted by Mr. Kumar that after going through the complaint it is not clear as to under what capacity and under which authority such complaint was filed by one Sanjay projecting himself as Manager of respondent without any authorization and he further submits that all allegations levelled in the complaint against the petitioners are pertaining to the complaints already made before the police authority on different dates by the respondent company, but deliberately in the

complaint, complainant did not mention about the findings of the police authority in respect of such complain, which is suppression of material facts, before the Court while making the complaint.

8.

After taking cognizance the learned Trial Court vide impugned order dated 29.12.2020 was pleased to direct investigation under Section 202 of the Cr.PC to decide whether or not there are sufficient grounds to proceed. As per aforesaid direction, on 15.04.2021 the Director, Rural Development/Panchayat submitted report before the court of learned Judicial Magistrate First Class-I, holding that there are significant grounds to proceed further against the petitioners without examining any independent witness or police officer and learned Judicial Magistrate First Class-I only on the basis of the said report, issued summon upon the petitioners under Section 204 of the Cr.PC.

9.

Meanwhile challenging the inquiry report dated 24.08.2020 submitted by the Director of Panchayat the petitioner preferred the writ petition being WP No. 13 of 2022 and after hearing Hon'ble High Court held that the said writ petition is not maintainable. Challenging said order of the Learned Single Bench, petitioner preferred mandamus appeal being MA/1/2022 before the Hon'ble Division Bench and after hearing the parties the Hon'ble Division Bench of this Court

restrained itself interfering with the order passed by the Hon'ble Single Bench.

10.

Being aggrieved and dissatisfied with the impugned proceeding initiated by the concerned Magistrate on the basis of the complaint made under Section 200 Cr.PC being CR No. 95 of 2020, under Section 451/504/506/427/447/34 of the IPC, against the petitioner, without actually having any offence as narrated under Section 2 (n) of Cr.PC 1973, petitioners preferred this revisional application under section 482/401 of Cr.PC.

11.

Mrs. Anjili Nag learned advocate appearing on behalf of the respondent submits that there are sufficient allegations in the written complainant which constitutes offence and the learned Magistrate on the basis of the investigation report has rightly issued summon against the accused persons under Section 204 of the Cr.PC and as such present application for quashing the criminal proceeding has got no merit at all. As allegations levelled in the FIR prima facie discloses offence, so it would not be proper to quash the criminal proceeding at its threshold by the High court invoking power under Section 482 Cr.PC.

12.

Considered submission made by both the parties. It appears from the documents on record filed as annexure that

an application under Section 200 of the Cr.PC was filed by complainant M/s Barefoot Resorts and Leisure's Pvt. Ltd. against both the present petitioners.

13.

On perusal of the copy of the order sheet it appears that vide order dated 16.12.2020 learned Chief Judicial Magistrate on perusal of the complainant took cognizance and made over the case to the Court of learned Judicial Magistrate First Class-I, Port Blair. Record further reveals, vide order No. 3 dated 29.12.2020, learned Magistrate examined complainant Sanjay Kumar on solemn affirmation and after considering the back ground of the various disputes between the parties and various allegations and counter allegations levelled by the parties against each other and also considering other aspects of the matter, including non-action on the part of police authority came to the conclusion that this is a fit case to direct investigation under Section 202 Cr.PC for the purpose of deciding whether or not there is sufficient grounds to proceed. 14.

It further appears from order dated 15.04.2021 that investigation report, as ordered under Section 202 Cr.PC was submitted by Mr. Vinay Kumar Jindal and on perusal of the investigation report along with the annexures available with the report, learned Magistrate came to the conclusion that there are significant grounds to proceed further and after considering all aspects, learned Magistrate observed that prima facie case has

been made out against accused persons under Section 451/504/506/427/447/34 IPC and accordingly issued process under Section 204 of Cr.PC against both the petitioners herein. 15.

In State of Haryana and others vs Bhajan Lal and others, 1992 Supp (1) SCC 335, in para 102, Apex Court has categorised the case by way of illustration wherein the powers under Article 226 or the inherent powers under Section 482 Cr.PC could be exercised either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. In paragraph102 it is observed and held as under:- "102.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except

under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

16.

The aforesaid decision of the Hon'ble Supreme Court has been followed subsequently by High Courts and Supreme Court in a catena of decisions. In paragraph 103 of the said judgement it was also observed by the Apex Court as follows:- "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent

powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

17.

On perusal of the written complaint made in CR 95/2020, it appears that the complaint comprises of allegations of threatening coupled with reference of allegations levelled earlier before police authority against the accused persons.

Furthermore, feeling it necessary in the backdrop of previous disputes, between the complainant and the accused person/petitioners herein, the learned Magistrate did not feel it necessary to issue process only on the basis of the contents of the written complainant or on the basis of statement made by the complainant on solemn affirmation but learned Magistrate directed investigation under Section 202 of Cr.

PC and the investigation report submitted on the basis of said order passed by learned Magistrate also goes to show that the investigating authority observed that inspite of having executed the lease deed for a period of 50 years, accused persons are creating one or the other hindrance through illicit activities like disconnecting of pipelines, damaging CCTV Camera, erecting of fencing within the boundaries of the resort with the aim of changing the existing boundaries and preventing the staff from doing their duties and other activities connected to the resort with the free movement and accordingly, Mr.

revenue authority and there are significant grounds to proceed further with the case.

18.

On being satisfied on the basis of contents in the written complaint, initial deposition on solemn affirmation lying in the case record and the documents annexed with case record and also on the basis of investigation report dated 15.04.2020, learned Magistrate has taken a decision to proceed against the accused persons/petitioners herein and accordingly issued process under Section 204 of Cr.PC.

19.

It is well settled that while exercising jurisdiction under Section 482 of the Cr.PC, the High Court should not ordinarily embark upon an inquiry into whether there is reliable evidence or not. The jurisdiction has to be exercised sparingly, carefully and with caution only when such exercise is justified by the specific provisions of Section 482 of Cr.PC itself. At this stage when the High Court considers a petition for quashing criminal proceeding under Section 482 of the Cr.PC, the allegations in the complaint and the statement made on solemn affirmation as well as contents of investigation report, must be read as they stand and it is only if on the face of the allegations that no offence, as alleged, has been made out, that the Court may be justified in exercising its jurisdiction to quash. In other words the High Court can quash the criminal proceeding where

allegations in the complaint or in the report even if they are taken at their face value do not constitute the offence alleged. 20.

In view of the above facts and circumstances of the case and materials available in the case record I find that this not a fit case where invoking power under Section 482 Cr.PC the criminal proceeding needs to be quashed at its threshold or that if the proceeding is allowed to be continued, it would amount to abuse of the process of the Court.

21.

In view of above CRR/7/2022 is dismissed, however, considering the facts and circumstances of the case learned Trial Court is requested to expedite the proceeding and to make every endeavour to conclude the trial within a period of eight months from the date of communication of this order. 22.

There shall be no order as to costs.

23.

Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties upon compliance of all formalities.

(AJOY KUMAR MUKHERJEE, J.)