Shri Prakash Adhikary v. The State And ANR.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** CRR/15/2023 Shri Prakash Adhikary and others Vs.

The State and another Mr. Gopala Binnu Kumar ... for the petitioners Ms. A.S. Zinu ... for the State August 25, 2023 [AKB] Item No.9 The instant revisional application has been filed for quashing the criminal proceedings instituted vide GR Case No.307/2022 pending before the Court of Chief Judicial Magistrate, South Andaman District at Port Blair.

The learned Advocate for the petitioners submits that on the basis of false complaint, the petitioners have been implicated under sections 354/354(B)/451/34 IPC in connection with Pahargaon Police Station Case No.68 of 2022 dated 22.04.2022 and a charge sheet has been filed being No.101 of 2022 dated 22.06.2022 under the aforesaid sections.

It is further submitted that the petitioners are innocent and on the basis of a minor dispute trivial in nature, they have been falsely implicated in the instant criminal case and prayed for quashing of the aforesaid GR Case NO.307 of 2022 pending before the Court of the Chief Judicial Magistrate, South Andaman District, at Port Blair.

The learned advocate for the State submits that substantial material exists on record to indict the petitioners in the alleged offence and at a premature stage pending trial, the aforesaid criminal proceeding should not be quashed.

Heard the submissions of the learned advocate of both the parties and perused the materials on record including the contents of the charge sheet as aforesaid.

The complaint filed by the respondent no.2 precisely stated that the complainant/respondent to be an aged women and a mother of a son, who had been in a relationship with the petitioner for eight years and resided with him as a married couple. The petitioner at that point of time was a married man who promised to marry the respondent on obtaining divorce from his wife. The relationship between the petitioner and the respondent was not acceptable to the mother of the petitioner, who constructively objected to the same. There was a dispute between the parties as has been narrated in the complaint depicting individual act of the petitioners therein.

Apparently the complaint was the result of a subsequent dispute between the parties at the instance of the mother of the petitioner who resisted the petitioner's marriage with respondent no.2. It has been categorically stated in the complaint that "when she was at her parents' house at Diglipur, he followed her at Tugapur and misbehaved with her. When she warned her of complaining at Police Station, he left from the spot on 20/04/2022, she returned to

her house at Port Blair from Diglipur. The same night, Prakash again called and texted her over phone, and he was roaming in the veranda of her house, due to which she and her son are mentally harassed, and they are not feeling safe. Hence she wants to lodge a complaint and wants legal action against Prakash Adhikari and his friends Nirmal Sarkar (Samity Member, Guptapara) and Deepak Majumder (a tailor by profession)."

The incriminating acts on the part of the petitioner Nos. 2 and 3 have not been described. During the course of the investigation the following information was notified by the Investigating Officer in the charge sheet.

"That from the investigation conducted, it revealed that the Accused Prakash Adhikar was in relationship with the victim for the last 08 years, as they both are working for Bhartiya Janta Party. During their tenure as party members, they got acquainted with each other, in which they got to know that the victim is single mother living separately in Port Blair as she got separated with her husband since 2009. In the other side, Accused Prakash Adhikari, who has also got separated with her wife due to some matrimonial issues. Later the accused came close to the victim lady and then they both came in relationship, in which the accused made false promise to marry her, once he got the divorced from his wife. At the time, when the accused and the victim were in a relationship, they were both living as a couple.

But at the same time the mother of the Accused Prakash Adhikari was against this relationship and always showing objection to their relations and every time the Accused Prakash Adhikari was making false promises that he would convince his mother for their relationship.

for a match for his son and the whole information was somehow conveyed to the victim lady. Due to this, the victim lady decided to part ways with the accused, so that they both can live their own life peacefully. As the victim lady decided to part ways with the complainant, the accused started texting, making irregular calls and following her. On 24/03/22 at around 2000 hrs, when the victim lady was in her home, accused Prakash Adhikari, Nirmal Sarkar and Dipak Mazumder went inside the home of the victim lady and grabbed her forcefully. When the victim lady resisted and tried to get away from the hands of Accused Prakash Adhikari, accused immediately took Sindur from his pockets and forcefully applied in the parting of the hair in the forehead of the victim lady.

Due to this, the victim lady screamed and at that time, Accused Prakash Adhikari snatched her mobile phone and locked the doors from inside. By hearing the noise, cousin brother of the victim lady Subinay Baidya, who was inside the home came at that time came and rescued her from the hands of the Accused Prakash Adhikari. She immediately washed the Sindur from her forehead and informed the whole incident to Smti. Sunita. Instantly, all of the three accused left the place without saying anything. After that, the victim lady along with her colleagues came to PS Pahargaon and gave her written complaint.

Based on the complaint, Accused Prakash Adhikari and her mother appeared before the SHO PS Pahargaon and somehow the Accused and his mother convinced the victim lady to withdraw her complaint, by assuring that he would neither try to contact the victim nor interfere in her life. Upon which, victim lady submit her letter regarding withdrawal of her complaint. But few weeks later, the accused started staying most of the time in front of the victim lady's home and following her, wherever she goes. This types of incident leads to the victim lady to come to PS Pahargaon and registered her complaint. Afterwards, an investigation was started in which all the accused personnel absconded and evaded arrest from the investigating agency.

Later, they all were granted Anticipatory bail from the Hon'ble Court. As per the witnesses, the accused was in relationship with the victim lady for 08 years and during their relationship accused has made false promises of marriage to the victim lady and on the night of 24/03/22 at 2000 hrs, the Accused persons namely Prakash Adhikari, Dipak Mazumder and Nirmal Sarkar forcefully entered in the home of the victim lady with wrong intention and therein by using criminal force outrage her modesty."

The petitioner and the respondent were in a relationship for eight years and resided together as a married couple. They were known to each other and the prospective marriage between them being objected by the mother of the petitioner, since the petitioner was already a married man with a son might have triggered into a disrupted and discordant relationship between the parties. In view of the observation of the Hon'ble Supreme Court in the matter of State of Haryana and others vs. Bhajan Lal and other reported in 1992 Supp (1) SCC 335, paragraph No. 102 is follows: - "102.

guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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 entirely 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 FIR 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."

In view of the observation of the Hon'ble Supreme Court as aforesaid and the materials on record, it appears that the circumstances as enumerated in the complaint based on which a charge sheet has been filed are improbable and to allow to continue with the trial would result in abuse of process of law and waste of court hours.

The instant revisional application being CRR/15/2023 is allowed.

The G.R. Case No. 307 of 2022 pending before the learned Trial Court is quashed.

A copy of this order be communicated to the learned Trial Court for information and necessary action.

( Ananya Bandyopadhyay, J. )