Calcutta High Court (Appellete Side)
Radhashyam Banerjee & Ors vs State Of West Bengal And Ors on 7 August, 2026
2024:CHC-AS:2511
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS.
CRR 3430 OF 2018
RADHASHYAM BANERJEE & ORS.
VS
STATE OF WEST BENGAL AND ORS.
For the Petitioners : Mr. Ayan Bhattacharjee, Sr. Adv.
Mr. Kushal Kumar Mukherjee, Adv.
For the Private : Mr. Niladri Sekhar Ghosh, Adv.
respondent Ms. Laboni Sikder , Adv.
Mr. Soumik Dey, Adv.
Reserved on : 18.06.2026
Judgement on : 07.08.2026
Uploaded on : 07.08.2026
CHAITALI CHATTERJEE DAS, J.:-
1. This revisional application is filed under Section 482 of the Code of Criminal
Procedure, 1973 for quashing of the proceeding of complaint case being C.R.
case no. 110 of 2013 under Section 147/148/447/427/504/506 (2) IPC
pending before the Court of Learned Judicial Magistrate, Additional Court,
Arambagh, Hooghly.
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Facts of the case
2. The petitioner nos.1 and 2 at the time of filing of the petition were aged about
68 and 61 years respectively and petitioner no. 3 is an advocate by profession.
A summon was received by them in connection with the allegation mentioned
in CR case 110 of 2013 pending before the Learned Judicial Magistrate, 1st
Class , Additional Court, Arambagh, Hooghly to appear before the Court on the
strength of the complaint lodged, alleging against them that the present
petitioners along with other 15 to 20 persons went to the premises of Opposite
Party no. 2 and broke his pucca boundary wall with stick, iron rod etc. and on
objection being raised he was abused and assaulted and thereafter on listening
to his shouting the neighbours gathered and accused persons fled away. The
Learned Magistrate after considering the deposition under Section 200 Cr.P.C
of P.W. 1 and 2 passed such order issuing process. Being aggrieved thereby
this revision application has been filed.
Submissions
3. The Learned Senior Advocate Mr. Bhattacharya appearing on behalf of the
petitioner argued that there were no convincing material to issue the process
and the Learned Magistrate sent the petition of complainant to I.C. Arambagh
Police Station for investigation under Section 202 Cr.P.C and to file a report
with all materials on 15.11.2013. There were apparent inconsistencies in the
deposition made by P.W. 1 and P.W. 2 than what the de facto complainant
alleged against the present petitioners however pursuant to the direction of the
learned Magistrate the police report was forwarded by I/C Arambagh Police
Station dated 1st of November, 2016 and the Learned Magistrate thereafter
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passed the order issuing process accepting such report without applying his
judicial mind that the report was submitted by a ASI. It is further argued that
the police submitted such report on 14.03.2016 and the order for issuance of
summon to the petitioner was also passed on the same day but from
14.03.2016 to 27.02.2018 Opposite party no. 2 did not bother to file any
requisite in spite of several order passed by the Learned Magistrate. As a result
by an order dared 6.2.18 the Learned Court directed the Opposite Party no. 2
to file show cause and the requisite was filed on 02.03.2018 and the summons
were issued to the petitioner on 02.03.2018 that is after lapse of 2 years.
4. It is further contended that the petitioner no. 1 gathered through RTI Act,
2005 that the right of the petitioner no. 1 is the land owner of the said land
measuring about 16 Sattak of land and he has acquired an area of 0.12 acres
out of total 0.16 acres land against C.S. plot no. 446 and L.R. Plot no 516 CS
khatian no. 23 and LR Khatian no. 383, Mouza-Paschim Haripur J.L. no. 35.
Taking advantage of the petitioner’s absence due to some medical exigencies of
petitioner no. 3,the Opposite Party no.2 and his wife tried to grab the said land
of the petitioner no.1 by constructing a pucca drain and a boundary wall in an
unauthorised manner, encroaching certain portion of land of remaining un-
acquired 4 satak out of 16 satak of land of the petitioner no. 1 and also
removed the demarcation pillar of petitioner no.1 of the said land.
5. The petitioner no. 1 lodged a General Diary stating all these facts on
19.04.2013 before the I/C Arambagh Police Station against the Opposite Party
no. 2 and his wife. The Arambagh Police Station took no step and then a
demand of justice notice was issued by petitioner no. 1 through his advocate
to the District Magistrate, Hooghly, I/C Arambagh Police Station and
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Arambagh Municipality and Ors. asking them to demolish the illegal pucca
construction. After receiving the said demand of justice notice a criminal case
was initiated against the present Opposite Party no.2 and two others on
05.07.2013 under Section 143/447/506 IPC. After completion of investigation
the Investigating Officer, Arambagh Police Station also submitted charge sheet
against the Opposite Party no. 2 and his wife on 31.07.2013. After submission
of charge sheet the Opposite Party no. 2 filed the instant complaint falsely
implicating the petitioner as a counter blast to the same.
6. The Learned Senior Advocate took the preliminary point of non-compliance of
Section 202 Cr.P.C and put reliance upon the decision reported in
Mohammad Ataullah vs. Ram Saran Mahato1. Further contended that the
complaint was bereft of any ingredients of Section 427 of IPC and relied upon
the decision reported in Bihar State Electricity Board & Anr. vs. Nand
Kishore Tamakhuwala2. It is vehemently argued that no ingredients were
there to attract section 504 or section 506 of the IPC on the point and put
reliance upon the decision reported in Om Prakash Aambedkar vs. State of
Maharashtra & Ors3. It is further argued that Evidence under Section 200 of
Cr.P.C must be corroborative and put reliance in the decisions reported in
S.R. Sukumar Vs. S. Sunad Raghuram.4, Mira Ghosh Vs. Mira Ghosh5.
Further point raised on the judicial responsibility of the court issuing
process and put reliance in the decisions reported in Mahendra Singh Dhoni
1
(1981) 2 SCC 266
2
(1986) 2 SCC 414
3
(2026) 2 SCC 622
4
(2015) 9 SCC 609
5
2009 SCC Online Cal 1964
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Vs. Yerranguntla Shyamsundar & Anr.6, Vikas Chandra Vs State of
Uttar Pradesh & Anr.7, Pepsi Foods LTd & Anr. Vs. Special Judicial
Magistrate & Ors8.
7. On the point of quashing Vis-a-vis in specific averment the Learned Senior
Advocate put reliance upon the decisions reported in Aruna Dhanyakumar
Doshi Vs. State of Telangana & Ors.9 Ravindranatha Bajpe Vs.
Mangalore Special Exonomic Zone Ltd & Ors.10, GHCL Employees Stock
Option Trust Vs. India infoline Ltd11. It is further contended that while
invoking section 202 Cr.P.C investigation vis-a-vis delegation of Power is not
sustainable in the eye of law and put reliance in the decisions of Saurabh
Jhunjhunwala Vs. M/s Piyarellal Iron & Steel Pvt. Ltd.12, Rakesh Singhal
Vs Travolt Engeneering Co. Pvt. LTd13.
8. Per Contra the Learned Advocate representing the Opposite Party raised
objection to the contention made on behalf of the petitioner and argued that
only on the basis of filing of a complaint against the present complainant, the
allegations levelled against the petitioner do not ipso facto becomes not
maintainable for quashing the entire proceeding can be quashed. It is further
contented that there is no bar to lodge counter complaint if an allegation is
found for committing an offence which attracts various provision of the Indian
Penal Code by a person against whom a complaint is initiated by the accused.
6
(2017) 7 SCC 760
7
2024 SCC Online SC 1534
8
(1998) 5 SCC 749
9
(2025) 1 SCC 485
10
(2022) 15 SCC 430
11
(2013) 4 SCC 505
12
2014 SCC Online Cal 7253
13
2025 SCC Online Cal 1263
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9. The Learned Advocate put reliance upon the decision reported in Pramila
Devi and Ors. vs State of Jharkhand and Anr14, and further submitted
that cognizance order requires no expressive reason while taking cognizance in
summoning order under Section 204 Cr.P.C. In this case the process was
issued under Section 204 Cr.P.C. A complaint was lodged with the specific
allegations against the present petitioners and no corroboration need to be
made while taking cognizance excepting to ascertain whether a prima facie
case exists for proceeding with the same or not. The Learned Magistrate
satisfied about prima facie existence of materials and passed the order and
hence warrants no interference. Accordingly prayed for dismissal of this
revisional application.
Analysis
10. Heard the submissions of both the Learned Advocate and perused the
materials on record .The complaint was lodged by the present Opposite Party
no. 2 before the Learned Additional Judicial Magistrate Arambagh , Hooghly
on 1st April 2013 alleging an incident occurred on 31st July, 2013. The
allegations levelled against the present petitioners that the petitioners with
sticks and other offending deadly weapons tried to demolish the boundary wall
situated within the personal and Ejmal possession of the property of Opposite
Party no. 2 and raised objection and then the accused persons abused him
with filthy languages with the threatening to kill him and tried to attack him
when he somehow managed to get inside kaliapur house and started
shouting when local people reached and the accused persons who had a
vehicle with them fled away.
14
2025 SCC Online SC 886
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11. The complainant also said that because of throwing broken bricks, the
common wall got damaged and he suffered damaged to the tune of Rs. 2000/.
The Learned ACJM after perusing the complainant took cognizance and
transferred the matter to the Learned Judicial Magistrate, Additional Court
Arambagh for disposal. The Learned Magistrate took initial deposition as per
Section 200 Cr.P.C. on oath on 26.09.2013 where the de facto complainant
stated that there were 5/6 other persons and on the relevant date all the
accused persons illegally entered into his premises and broke his boundary
wall and when he objected he was assaulted and abused accused persons fled
away after the neighbour reached there hearing his shouting.
12. Thereafter the complaint was sent before the concerned police station by the
Learned Magistrate for due investigation under Section 202 with a direction to
file a report on 26.09.2013. The record transpires that on various occasions
thereafter the no report was filed and several adjournments sought for on
behalf of the complainant and lastly on 06.05.2015 the P.O. was transferred.
Before the Learned 3rd Court of Judicial Magistrate who was in-charge the date
was fixed on 14.03.2016 for receiving report and after receiving the report the
Learned Magistrate held that there is prima facie case and accordingly directed
to issue summons.
The first objection raised by the appellant is whether the Learned applied his
judicial mind while issuing process and followed the law laid down in this
regard. In the judgement relied upon of Mahendra Sing Dhoni vs.
Yerraguntla shyam Sundar and Anr(supra) it was observed in paragraph 13
which is as follows:-
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“13: Before parting with the case, we would like to
sound a word of caution that the Magistrates who
have been conferred with the power of taking
cognizance and issuing summons are required to
carefully scrutinise whether the allegations made in
the complaint meet the basic ingredients of the
offence, whether the concept of territorial jurisdiction
is satisfied and further whether the accused is really
required to be summoned. This has to be tried as the
primary judicial responsibility of the Court issuing
process.”
13. In the decision of Vikash Chandra vs State of UP and Anr. (supra) the
Hon’ble Supreme Court discussed various judicial pronouncements including
the decision of Sunil Bharti Mittal Vs CBI15, where the Court interpreted the
“sufficient grounds for proceeding” and held that there would be sufficiency of
materials against the accused concerned before proceeding under Section 204
Cr.P.C and it was held in paragraph 53 as follows :-
“53. However, the words “sufficient ground for
proceeding” appearing in Section 204 are of immense
importance. It is these words which amply suggest
that an opinion is to be formed only after due
application of mind that there is sufficient basis for
proceeding against the said accused and formation of
such an opinion is to be stated in the order itself. The
order is liable to be set aside if no reason is given
therein and while coming to the conclusion that there
is prima facie case against the accused, though the
order need not contend detailed reasons. A fortiori,
the order would be bad in law if the reason given
turns out to be ex facie in correct'”.
15
(2015) 4 SCC 609
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In the decision of Pepsi foods and Another vs. Special Judicial
Magistrate and other (supra) regarding summoning of accused under
Section 204 was discussed where it was held that the order must show that
Magistrate applied his mind to the facts of the case and law applicable
thereto. He should carefully scrutinise the evidence brought on record and
may himself put questions to the complainant and his witnesses to find out
the allegations.
14. The decision relied upon before this Court by the Learned Advocate
representing the Opposite Party in Pramila Devi and others (supra) the
Additional Judicial Commissioner took cognizance against the appellants in
SC/ST case and the High Court in the impugned judgement focussed on the
cognizance taking order dated 13.06.2019 .The matter went up to the Hon’ble
Supreme Court. The Hon’ble Supreme Court discussed two basic issues, firstly
whether the Additional judicial Commissioner while taking cognizance has to
record detailed reasons for taking cognizance, secondly whether the FIR itself
was instituted with mala fide intention and was liable to be quashed.
15. The Learned Advocate of the Opposite party no 2 pressed paragraph 15 of
judgement where the Hon’ble Supreme Court took note of decision report in
Kanti Bhadra Sha vs. State of West Bengal16 which is as follows:-
“12. If there is no legal requirement that the trial
Court should write an order showing the reasons for
framing a charge, why should already burdened trial
courts be further burdened of such an extra work, the
time has reached to adopt all possible measures to
expedite the court procedures and to chalk out
measures to avert all road blocks causing avoidable16
(2000) 1 SCC 722Page 9 of 17
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delays. If a Magistrate is to write detailed orders at
different stages merely because the counsel would
address arguments at all stages, the snail-paced
progress of proceedings in Trial Courts would further
be slowed down .We are coming across interlocutory
orders of Magistrates and Sessions Judges running
into several pages. We can appreciate if such a
detailed order has been passed for culminating the
proceedings before them. But it is quite unnecessary
to write detailed order at other stages, such as
issuing process, remanding the accused the custody,
framing of charges, pass over to next stages in the
trial.”
16. In this regard the Learned Senior Advocate put reliance on the decision of
Md. Ataulla vs. Ram saran mahato ( Supra) where the Hon’ble three Judges
Bench of the Supreme Court observed:-
“…..Therefore, when the Chief Judicial Magistrate took
cognizance of the case and ordered issue of process against
the accused there was no additional material before him
except what was already there when he ordered an
investigation under Section 202, Criminal Procedure Code .
Obviously the Learned Chief Judicial Magistrate without
any reference to any further material took cognizance of the
case and ordered the issue of process to the accused merely
on the basis of opinion expressed by the Executive Officer,
Samastipur Municipality”.
Accordingly the said order was quashed.
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17. In the instant case from the record it is evident that the complaint was
lodged on 1st of August, 2013 and the Learned ACJM , Arambagh , Hooghly
examined P.W. 1 and P.Ws on S/A as per Section 200 Cr.P.C ,1973 on
26.09.2013 and found certain contradiction in the deposition not convincing
for the Court to issue any process. Accordingly the complaint copy was sent to
the O/S before J/C Arambagh for investigation under Section 202 Cr.P.C 1973
and to file a report with all material details and fixed 15.11.2013 for report.
After a gap of 2 years on 14.03.2016 such report was submitted by an ASI of
Arambagh Police Station. The Learned Court perused the report and observed
there is prima facie case to issue process under Section
147/148/447/427/504/506 (2) IPC and directed to issue summon. The
Learned Magistrate even did not consider that the report was submitted by an
Officer to the rank of ASI. Nothing is expressed in the order as to why he was
considering such report and found a prima facie case when initially the
Learned Magistrate was not satisfied with the deposition of the complainant
and other P.Ws.
18. On close scrutiny of the complaint and the deposition the glaring
inconsistencies found in the written complaint where the allegation was made
of abuse and attempt to injure by the accused with deadly weapons which
was subsequently narrated as only illegally entering into his premises and
breaking his boundary wall and he was assaulted and abused and the report
submits there was an altercation and the accused tried to assault but despite
that the Learned Magistrate expressed no opinion regarding his satisfaction
over the prima facie case. In the decision of Saurabh Jhunjhumwala (Supra)
the Leaned Single Bench took note of the case of Surindra Mohan Mujumdar
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Vs Babulal Tudu reported17 where the question came before the Court for
determination as to whether the person who was directed by the Magistrate to
cause the investigation under Section 202 Cr.P.C, had any authority to
delegate the said power to another person. The Hon’ble Court held that it was
decided in the negative. The said proposition of law was reiterated by this
court again in the case of Krishna Chandra Paul (supra). Therefore it is well
settled that a person who was directed to make an investigation under
Section 202 Cr.P.C had no authority to delegate the said power and the
Learned Magistrate cannot act upon the said report of investigation under
Section 202 Cr.P.C filed by another person.
19. In the case of Rakesh Singhal and Ors. (Supra) also the direction was
given by the Trial Court to the Officer-in-charge Boubazar Police Station to
enquire the matter and to report under Section 202 of Cr.P.C. Thereafter the
report was submitted and the Trial Court issued process which was challenged
before the Learned Single Bench and it was held that the report submitted by
Sub-Inspector of Police Boubazar Police Station which is bad in law and on the
basis of such report the Magistrate concerned ought not to have decided to
proceed under Section 204 of Cr.P.C. In that case the direction was given to
the Bowbazar Police Station but the report was submitted by the Sub-
Inspector of Police attached with Bowbazar Police Station. Furthermore the
Learned Single Bench held that the order of the Learned Magistrate was so
cryptic that it hardly discloses that the Magistrate had at all any reason to
believe that there are sufficient grounds for proceeding.
17
(1988) 3 Crimes 143
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20. It further transpires from the decision of S.R. Sukumar (supra) where it was
held by the Hon’ble Supreme Court that on examination of complainant the
Magistrate cannot be said to have ipso facto taken the cognizance when he is
merely gathering material to decide whether a prima facie case is made out for
taking cognizance or not. In plethora of decision it is held that ‘taking
cognizance of an offence’ means applying judicial mind to contents of
complaint and materials filed therewith and taking judicial notice of an
offence. It is no more res integra that summoning is a serious issue and the
Magistrate is conferred with power of taking cognizance and issuing summons
must carefully scrutinise whether the allegations made in the complaint meet
basic ingredients of offence or whether the territorial jurisdiction is satisfied
and whether accused needs to be summoned.
21. In summation of supra it is well settled that there must be some reflection in
the order about the satisfaction of the Learned Magistrate about existence of
prima facie materials to issue process against the accused persons but in the
instant case the Learned Magistrate being not satisfied about the prima facie
case due to inconsistencies found in the deposition made during examination
of the complainant and with other witness under Section 200 Cr.P.C
forwarded it for enquiry before the Police Station but passed a cryptic order on
the basis of a report submitted by an Officer who was not directed to furnish
the report and without reflecting the mind of the Learned Magistrate regarding
issuance of process on the basis of such report .
22. That apart the fact of the case further unveils that on 19.4.2013 the present
accused persons lodged complaint against the present Opposite Party no. 2
alleging construction of boundary wall and pucca drain in respect of the same
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disputed property an on the basis of such complaint on completion of
investigation a charge sheet has been submitted against the Opposite Party no.
2 on 31.07.2013. The instant complaint has been lodged on 01.08.2013 in
respect of alleging an incident on 31.07.2013. Therefore it is glaringly visible
that the parties have an inimical relation with regard to construction of
boundary wall and pucca drain in the disputed plot of land and possibility of
false implication cannot be ruled out.
23. The Learned Magistrate mechanically passed the order issuing summon
without taking into considerations about the existence of a prima facie case
against the petitioners and therefore is not legally sustainable and liable to be
set aside. Admittedly disputes exists between the parties and they have a
strained relationship but no materials are found to attract any of the offences
alleged to be committed as made in the written complaint. No specific role
played by the present petitioners are found out of whom petitioner no. 1 and
petitioner no. 2 are senior citizens and petitioner no. 2 is the wife of petitioner
no. 1 .The depositions and the police report both manifest the falsity of the
narration of carrying deadly weapons by all the petitioners or demolishing the
boundary wall or even assault on the Opposite Party.
24. The power under section 482 Cr.P.C is to be exercised when there are abuse
of the process of law and to secure the ends of justice. It is a settled
propositions of law that when and where such power is to be exercised the
court should be more careful and circumvent while exercising such power. In
the decision reported in Bhikhubhai Govindbhai Patel & Anr. Versus The
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State Of Gujrat & Anr.18, the Court took note of Mohd. Wajid vs Sate of
UP19 and held that-
“36. At this stage, we would like to observe something
important. Whenever an accused comes before the
Court invoking either the inherent powers under
Section 482 of the Code of Criminal Procedure (Cr.P.C)
or extraordinary jurisdiction under Article 226 of the
Constitution to get the FIR or the criminal proceedings
quashed essentially on the ground that such
proceedings are manifestly frivolous or vexatious or
instituted with the ulterior motive for wreaking
vengeance, then in such circumstances the Court
owes a duty to look into the FIR with care and a little
more closely.
37. We say so because once the complainant decides
to proceed against the accused with an ulterior motive
for wreaking personal vengeance, etc. then he would
ensure that the FIR/complaint is very well drafted
with all the necessary pleadings. The complainant
would ensure that the averments made in the
FIR/complaint are such that they disclose the
necessary ingredients to constitute the alleged
offence. Therefore, it will not be just enough for the
Court to look into the averments made in the
FIR/complaint alone for the purpose of ascertaining
whether the necessary ingredients to constitute the
alleged offence are disclosed or not.
38. In frivolous or vexatious proceedings, the Court
owes a duty to look into many other attending
circumstances emerging from the record of the case18
2026 INSC 532
19
2023 INSC 683Page 15 of 17
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over and above the averments and, if need be, with
due care and circumspection try to read in between
the lines. The Court while exercising its jurisdiction
under Section 482 Cr.P.C. or Article 226 of the
Constitution need not restrict itself only to the stage of
a case but is empowered to take into account the
overall circumstances leading to the
initiation/registration of the case as well as the
materials collected in the course of investigation. Take
for instance the case on hand. Multiple FIRs have
been registered over a period of time. It is in the
background of such circumstances the registration of
multiple FIRs assumes importance, thereby attracting
the issue of wreaking vengeance out of private or
personal grudge as alleged.”
It was observed that even the courts owes a duty to look into the other
attending circumstances where the maliciousness is apparent . In the instant
case on consideration of the entire facts and circumstances this court is of the
view that if the proceeding is further allowed to be continued it would be
sheer abuse of the process of law.
Conclusion
25. Accordingly this Revisional application stands allowed. The order passed by
the Learned Magistrate issuing summons is hereby set aside and the entire
proceeding pending before the learned Magistrate stands quashed.
26. All connected applications are hereby disposed of.
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27. Urgent certified copy Urgent of the order if applied for be provided to the
parties upon observance of all necessary requirements.
[CHAITALI CHATTERJEE (DAS), J.]
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