Calcutta High Court (Appellete Side)
Asish Kumar Sen @ Bapi vs The State Of West Bengal & Anr on 2 May, 2025
Author: Suvra Ghosh
Bench: Suvra Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APELLATE SIDE
The Hon'ble JUSTICE SUVRA GHOSH
C.R.R. 968 of 2024
Asish Kumar Sen @ Bapi
v/s.
The State of West Bengal & Anr.
For the Petitioner: Mr. Sudipto Moitra, Sr. Adv.
Mr. Achin Jana, Adv.
Ms. Gargi Dhang, Adv.
Mr. Prosenjit Ghosh, Adv.
Ms. Chetna Rustagi, Adv.
Mr. Bhaskar Dohri, Adv.
For the State: Ms. Faria Hossain, Adv.
Ms. Mamata Jana, Adv.
For the Opposite Party No. 2: Mr. Kumar Jyoti Tewari, Sr. Adv.
Mr. Amrit Sinha, Adv.
Mr. Aniruddha Tewari, Adv.
Ms. Samriddhi Nayak, Adv.
Judgment delivered on: 02-05-2025
SUVRA GHOSH, J. :-
1.
The petitioner is aggrieved by the order impugned dated 9th January,
2024 passed by the learned Chief Judicial Magistrate, 7th Court, Howrah
in G.R. Case No. 249 of 1999 turning down his prayer for discharge under
section 239 of the Code of Criminal Procedure. The petitioner has sought
quashing of the proceedings.
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2. Learned counsel for the petitioner has submitted that out of five accused
persons, three have expired. The petitioner is the Secretary of the
“Gangnanchal Shop And Office Owners Welfare Association” of
Gangnanchal Commercial Complex and owns four shop rooms therein.
The incident occurred on 20th June, 1998 and the FIR was lodged on 3rd
February, 1999, the delay remaining unexplained. In the statement of
witnesses recorded under section 161 of the Code of Criminal Procedure,
the only allegation against the petitioner is that he was present at the
spot at the time of occurrence and the furniture and articles removed
from the possession of the defacto complainant were kept in his school.
3. The defacto complainant/opposite party no. 2 claims to be a tenant in
respect of the property in question. Kishore Kumar Khaitan, one of the
partners of M/s. Khaitan Estate and owner/landlord of the property
entrusted the defacto complainant with some renovation work in the
schedule property. The defacto complainant manufactured a forged
document and used it as a tenancy/lease agreement in respect of the
property. The defacto complainant filed a title suit being T.S. 119/1998
against Kishore Khaitan and Rekha Khaitan praying, interalia, for
declaration of his tenancy right in the property and an order of injunction
restraining the defendants therein from disturbing his peaceful
possession in respect of the property. The learned trial Court refused the
prayer for interim injunction against which the private opposite
party/plaintiff approached the learned appellate Court vide Misc. Appeal
No. 145 of 1998. By an order passed on 19th June, 1998, the learned
Appellate Court directed the parties to maintain status quo as on date.
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Alleging dispossession on 20th June, 1998 in violation of the said order,
the present complaint was lodged. The defacto complainant/plaintiff also
filed an application under section 151 of the Code of Civil Procedure
seeking interim mandatory injunction directing the defendants to restore
his possession and upon such prayer being rejected by the District Court,
it was challenged before the High Court under section 115 of the Code.
Upon direction of the High Court, the application was reconsidered by the
District Court and allowed by observing that the defacto
complainant/plaintiff was dispossessed after the interim order of status
quo was passed.
4. On the other hand, the defendants (Kishore Kumar Khaitan and another)
also filed a title suit being T.S. 153 of 1998 seeking declaration that the
document relied upon by the plaintiff as a rent agreement was void. The
defendants approached the High Court under Article 227 of the
Constitution of India against the order of the District Court which being
turned down by the High Court, an Appeal by Special Leave was filed
before the Hon’ble Supreme Court. By judgment delivered on 13th
February, 2006 in Civil Appeal No. 1101 of 2006, the Hon’ble Supreme
Court held that the plaintiff/defacto complainant was not able to
establish the foundation for the possession claimed by him and the
disturbance of the status quo by the defendants was not established.
Noting that the plaintiff was put in possession through the process of
Court, the defendants were held to be entitled to re-delivery of possession
by way of restitution and possession was directed to be restored to them
through Court with a caveat that they could not create any third party
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interest in respect of the property pending disposal of the suit. The title
suit was finally decreed by a judgment delivered on 31st August, 2022
declaring the tenancy of the defacto complainant in respect of the
property and directing the defendants therein to hand over peaceful and
vacant possession of the same in favour of the plaintiff.
5. In the appeal preferred against the said decree the landlords/Khaitans
were favoured with an order of status quo. The petitioner being the
Secretary had no involvement in the alleged occurrence and was only
found to be present at the spot along with the police. No specific overt act
has been attributed to the petitioner in the alleged offence. The petitioner
has no nexus with the dispute between the Khaitans and the defacto
complainant and has been implicated only by virtue of his post as the
Secretary of the Welfare Association. No prima facie case being made out
against the petitioner, the proceeding against him ought to be quashed.
The case is pending since 1999 and ought to be quashed on the ground of
delay.
6. The list of witnesses submitted by the State demonstrates that
whereabouts of many of the witnesses are not known, some of the
witnesses have retired, some are seriously ill and others have expired.
Therefore chances of completion of trial in near future is bleak.
7. Learned counsel has placed reliance on the authorities in Moti Lal Saraf
v/s. State of Jammu and Kashmir & Anr. reported in (2007) 1 Supreme
Court Cases (Cri) 180, Vakil Prasad Singh v/s. State of Bihar reported in
JT 2009 (2) SC 113, Santosh De v/s. Archna Guha & Ors. reported in
1995 Supreme Court Cases (Cri) 194, Inder Mohan Goswami & Anr. v/s.
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State of Uttaranchal & Ors. reported in (2007) 12 Supreme Court Cases 1,
Ramanand Choudhary v/s. State of Bihar & Ors. reported in AIR 1994 SC
948, Ravindranath Bajpe v/s. Mangalore Special Economic Zone Ltd.
reported in AIR 2021 SC 4587, Vishnu Kumar Shukla & Anr. v/s. State of
Uttar Pradesh & Anr. reported in AIR 2024 SC 90, Murari Lal Chhari &
Ors. v/s. Munishwar Singh Tomar & Anr. reported in AIR 2024 SC 1437,
N.S. Madhanagopal v/s. K. Lalitha reported in 2023 (1) AICLR 140 (S.C.),
Usha Chakraborty & Anr. v/s. State of West Bengal & Anr. reported in
(2023) 15 Supreme Court Cases 135 and State of Karnataka v.s
Muniswamy and others reported in (1977) 2 Supreme Court Cases 699 in
support of his contention.
8. Per contra, learned counsel for the State has submitted that involvement
of the petitioner in the alleged offence has transpired in course of
investigation. Even if it is held that the defacto complainant is not a
tenant in respect of the premises, he cannot be dispossessed therefrom
without due process of law. Also, the proceeding cannot be quashed only
on the ground of delay without considering the allegations as well as the
cause of delay.
9. Learned counsel for the private opposite party has submitted that delay in
disposal of the case cannot be attributed to the private opposite party.
Despite interim order granted by the learned Trial Court in his favour on
19th June, 1998, he was dispossessed on 20th June, 1998 in violation of
the order. The defacto complainant has stated in his statement under
section 161 of the Code of Criminal Procedure that he saw the petitioner
standing with the others at the relevant time. Statement of other
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witnesses also demonstrates presence of the petitioner at the place of
occurrence. The call record of the mobile phone of Kishore Kumar Khaitan
discloses several calls between the petitioner and Kishore Kumar Khaitan
during the alleged occurrence. The charge sheet names the petitioner as
one of the alleged miscreants. Therefore involvement of the petitioner in
the alleged offence has prima facie been proved. In the order impugned,
the learned Trial Court has recorded a detailed observation with regard to
the involvement of the petitioner in the alleged offence before choosing to
turn down his prayer. The present case is independent of the several
cases between the defacto complainant and the Khaitans and the
petitioner was not a necessary party therein. The petitioner having aided
Kishore Kumar Khaitan in dispossessing the defacto complainant has
been arraigned as an accused in the present complaint.
10. Learned counsel has relied upon the authorities in Sajjan Kumar v/s.
Central Bureau of Investigation reported in (2010) 9 Supreme Court Cases
368, Captain Manjit Singh Virdi v/s. Hussain Mohammed Shattaf and
Others reported in (2023) 7 Supreme Court Cases 633, State of Tamil
Nadu v/s. R. Soundirarasu and Others reported in (2023) 6 Supreme
Court Cases 768 and P. Swaroopa Rani v/s. M. Hari Narayana Alias Hari
Babu reported in (2008) 5 Supreme Court Cases 765 in support of his
contention.
11. I have considered the rival submission of the parties and material on
record.
12. It appears that several litigations are pending between the defacto
complainant who claims to be the tenant in respect of the property in
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question and Kishore Kumar Khaitan who is the owner/landlord thereof.
The defacto complainant has alleged that he has been illegally
dispossessed from the property by the landlord with the aid of the
petitioner and others. On the contrary, Kishore Kumar Khaitan has
claimed that the deed on the anvil of which the defacto complainant
claims tenancy rights is forged and manufactured. The petitioner has no
role to play in the civil litigations and was therefore not made a party
therein.
13. Learned counsel for the petitioner has submitted that a civil dispute
between the landlord and tenant has been given the cloak of a criminal
offence and the petitioner has been unnecessarily dragged into it. The
dispute is essentially civil in nature [Usha Chakraborty and Another
(supra)].
14. In the case in hand, the petitioner does not appear to be a party to the
landlord-tenant dispute. Allegation against the petitioner is that he being
the Secretary of the Association was present at the place of occurrence
when Kishore Kumar Khaitan alongwith his men was breaking the
padlocks of the property occupied by the defacto complainant. Though the
FIR speaks of the property in respect of which civil dispute is pending, an
independent criminal proceedings has been initiated against the petitioner
and others wherein charge sheet has been submitted under sections
448/379/461/417/120B of the Indian Penal Code. The proceeding
cannot be said to be barred by law merely on the ground of pendency of
civil dispute between the landlord and the tenant. The said principle has
been enumerated in the authority in P. Swarooparani (supra).
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15. The prosecution proposes to frame charge against the petitioner under
sections 448/379/461/120B of the Indian Penal Code. Section 448 of the
Code prescribes punishment for house trespass. House trespass has been
defined in section 442 of the Code as hereunder:-
“Whoever commits criminal trespass by entering into or
remaining in any building, tent or vessel used as a human
dwelling or any building used as a place for worship, or
as a place for the custody of property, is said to commit
“house-trespass”.
16. In the present case, the evidence on record suggests that the petitioner
was standing at the place of occurrence and was not found to have
entered the property or in any portion thereof. Therefore allegation under
section 442 of the Code is not attracted against him.
17. Section 379 of the Code deals with punishment for theft. Section 378
defines “theft” as follows:-
“Whoever, intending to take dishonestly any movable
property out of the possession of any person without that
person’s consent, moves that property in order to such
taking, is said to commit theft.”
18. None of the witnesses examined by the prosecution has stated that the
petitioner has committed theft.
19. Section 461 deals with offence of dishonestly breaking open receptacle
containing property. No such allegation has surfaced against the
petitioner in course of investigation.
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20. It is alleged that the petitioner was present at the spot when the alleged
incident occurred and several phone calls were made between the
petitioner and Kishore Kumar Khaitan at the relevant time. Such
presence of the petitioner and phone calls between him and Kishore
Khaitan do not by themselves implicate the petitioner in the alleged
offence in absence of any other evidence on record. Under no
circumstances can the petitioner be termed as a party to the criminal
conspiracy to commit the offence alleged. The petitioner being the
Secretary of the Association may have been present at the spot at the
relevant time but his participation/involvement in the alleged offence is
not found.
21. In turning down the prayer of the petitioner under section 239 of the
Code, the learned Trial Court has placed the petitioner and Kishore
Khaitan on the same footing and has held that since the defacto
complainant was in possession of the premises as a tenant on consent of
the landlord, any attempt to deprive him of enjoyment of the property
shall be punishable.
22. Such observation may be relevant in so far as Kishore Khaitan is
concerned. But the petitioner is not similarly circumstanced with the
landlord and cannot be held liable for the allegation thrust upon Kishore
Khaitan.
23. The authorities referred to by the parties deal with the parameters to be
taken into consideration while dealing with a discharge application as well
as while issuing process against the accused. There is no quarrel with the
proposition of law laid down in the said judgments. In State of Haryana
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and Others v/s. CH. Bhajan Lal and Others reported in 1992 Supreme
Court Cases (Cri) 426, the Hon’ble Supreme Court has laid down
parameters for exercising inherent powers under section 482 of the Code
in quashing criminal proceedings. One of such parameters is 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.
24. In the present case, the written complaint or the evidence on record does
not disclose any specific allegation against the petitioner save and except
that he was present at the place of occurrence at the relevant time. Even
if the case made out by the prosecution is taken on its face value, no
offence is disclosed against the petitioner.
25. Last but not the least, the petitioner has drawn the attention of the Court
to the delay in the proceedings. Placing reliance on the authorities in
Motilal Saraf (supra), Santosh De (supra), Vakil Prasad Singh (supra) and
Ramanand Chaudhury (supra), learned counsel for the petitioner has
submitted that the alleged incident occurred on 20th June, 1998 and FIR
was lodged on 3rd February, 1999, the delay not being explained. Charge
sheet was submitted on 13th July, 2001. Charges are yet to be framed.
The proceeding is required to be quashed only on such ground.
26. It is a fact that delay is a relevant factor and every accused is entitled to
speedy justice in view of Article 21 of the Constitution of India. But
attending facts and circumstances leading to the delay should also be
taken into consideration in deciding the issue. If prima facie material is
found against the accused in a particular case, the proceedings cannot be
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quashed merely on the ground of delay. [Sajjan Kumar Singh (supra)].
Herein, no offence as alleged having been made out against the petitioner
either in the FIR or in course of investigation, allowing the proceeding to
continue against the petitioner shall be an abuse of the process of the
Court. The petitioner having suffered the ordeal of trial for considerable
period of time should not be made to suffer further due to continuation of
the proceeding against him.
27. Accordingly, CRR 968 of 2024 is allowed.
28. The proceeding being G.R. Case no. 249 of 1999 pending before the
Learned Judicial Magistrate, 7th Court, Howrah be quashed qua the
petitioner.
29. All parties shall act on the server copy of this judgment duly downloaded
from the official website of this Court.
30. Urgent certified website copies of this judgment, if applied for, be supplied
to the parties expeditiously on compliance with the usual formalities.
(Suvra Ghosh, J)