Calcutta High Court (Appellete Side)
Abira Mukherjee & Ors vs The State Of West Bengal & Ors on 6 March, 2026
2026:CHC-AS:366
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS.
CRR 3798 OF 2023
ABIRA MUKHERJEE & Ors.
VS
THE STATE OF WEST BENGAL & Ors.
For the Petitioner : Ms. Sudeshna Basu Thakur, Adv.
Mr. Saptarshi Roy, Adv.
For the State : Ms. Arfeen Begum, Adv.
Mr. Dip Dutta, Adv.
Last heard on : 23.12.2025
Judgement on : 06.03.2026
Uploaded on : 06.03.2026
CHAITALI CHATTERJEE DAS:-
1.
This revisional application under Section 482 of the Code of Criminal
Procedure has been filed by the present petitioners for quashing of a
proceeding being complaint case no. 1892 of 2023 under Section
447/448/504/506/379/34 of the Indian Penal code.
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Brief fact of the case
2. The fact of the case in a nutshell is that, that one Manindranath Mukherjee
since deceased was the owner of a two storied building situated at premise no
47A, Shakari para Road, Bhawanipuur Police Station, Kalighat. Said
Manindranath Mukherjee since deceased had two sons namely Samir Kumar
Mukherjee and Shyamal Kumar Mukherjee. Samir Kumar Mukherjee died as
bachelor and Shyamal Kumar Mukherjee died on June 9, 1987 leaving behind
him his widow Abira Mukherjee the petitioner no. 1 and minor son Subhojit
Mukherjee, the petitioner no. 2 here in as his sole legal heirs and or
successors.
3. The further case of the petitioners are that the said Mandira Nath Mukherjee
executed a deed of trust in respect of his estate and appointed the petitioners
as beneficiary of the said Trust which was duly registered in the Office of
Registrar of Assurances, Kolkata on December 2,1991. One Rampratap Shaw
@ Shah was the monthly tenant in respect of a shop room situated on the
ground floor of premises no 47A, Dhirendranath Ghosh Road, Bhawanipur,
Police Station, Kalighat, was running his business of cattle food and
subsequently started using the shop room as STD booth which continued up
to 2009. The de-facto complainant is an employee of Rampratap Shaw @ Shah.
A suit for declaration of permanent injunction was filed by the petitioner no. 2
against the opposite party no 2 in respect of the said shop room now pending
before the Learned 4th Court of Civil Judge (Junior Division) being Title Suit no
978 of 2023.
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4. On 22 June, 2023 at about 11.30 A.M the petitioner no. 2 found the Opposite
rd
Party no. 2 , trying to demolish and remove the shutter of the said shop room
accompanied by some labourers and some goons and on enquiry he replied
claiming to be authorised by Rampratap Shaw to start a new type of business.
A chaos was created over the issue and the petitioner no. 2 lodged one written
complaint with Kalighat P.S. on June 24, 2023.The petitioner no. 2 also moved
an application under Order 39 , Rule 1 and 2 read with Section 151 of the
Code of Civil Procedure and vide an order dated July 4,2023 the Learned 4th
Court of Civil Judge (Junior Division), Alipore passed an order restraining the
present Opposite Party no. 2 from creating any 3rd party interest in respect of
Schedule B property till August 4,2023 which was extended from time to time
and was in force till filing of this revisional application. It is the further case of
the petitioner that the Opposite Party no. 2 by violating the order of injunction
passed by the said Civil Court forcefully occupied the suit premises that is the
shop room and a written complaint was lodged by the present petitioner no. 2
on July 8,2023 and July 10, 2023 and further filed an application under Order
39, Rule 2 (A) read with Section 151 of the Code of Civil Procedure before the
4th Court of Civil Judge (Junior Division)
5. The Opposite Party no. 2 also filed a suit for declaration and injunction against
the present petitioners on July 10, 2023 pending before the said 4th Court of
Civil Judge (Junior Division) being title suit no 777 of 2023 and also moved an
application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for an
order of ad interim inunction to the said order was refused by the said Court.
6. It is the specific contention of the petitioner that being unsuccessful in
obtaining such interim order the Opposite Party no. 2 filed further suit for
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declaration and permanent injunction on July 14,2023 being Title suit no 953
of 2023 before the said 4th Court of Civil Judge (Senior Division) at Alipore by
suppressing the fact of the earlier suit and thereby obtained and interim order
of inunction restraining the present petitioners not to evict the Opposite Party
no. 2 in due course of law.
7. After that the Opposite Party no. 2 all on a sudden filed one application under
Section 200 of the Code of Criminal Procedure before the Learned Chief
Judicial Magistrate at Alipore on July 11, 2023 which was registered as C-
1892 of 2023 and now pending before the 9th Court Judicial Magistrate,
Alipore and the said court took cognizance for commission of offence
punishable under Section 447/448/504/506/379/34 of the Indian Penal
Code against the petitioners. The petitioner has come before this court for
quashing of the entire proceeding.
Submission
8. The Learned Advocate appearing on behalf of the petitioner argued that the
incident alleged was of 8th of July, 2023 when the complaint was filed on July
11, 2023 without giving any plausible explanation. The proceeding is
absolutely civil in nature and the complaint is maliciously filed with an
ulterior motive only two rope the petitioners in the criminal proceeding. The
Learned Advocate further argued that there is clear suppression of fact by the
Opposite Party no. 2 while obtaining subsequent order of ad interim injunction
about the order of refusal passed by the concerned Court in connection with a
separate proceeding filed by him. It was further argued that petitioner no. 2 is
the owner of the property and petitioner no. 1 is mother of the petitioner no. 3
the wife of the petitioner no. 2. It is nothing but a tenant dispute which has
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been tried to give a colour of criminal intent and is not maintainable in the eye
of law.
9. Per contra the learned Advocate representing the Opposite Party strenuously
argued that the opposite Party no 2 is an advocate by profession and
Rampratap Shaw @ Gupta being the father of the Opposite Party no. 2 was a
tenant in respect of the suit property under the petitioners. During lifetime of
the father of the Opposite Party no. 2 he and his father used the suit property
as study room and office cum chamber and after demise of his father by way of
succession he became a tenant under the petitioners in respect of suit
premises. He continued to use the suit premises as his chamber and almost
after a decade the petitioners started threatening him to evict illegally from the
said premises. The incident happened on 8th July, 2023 and the GD lodged
no. 681 on the very date on July 8, 2023. The complaint was lodged on 11th of
July, 2023 and the reason has been assigned by the de-facto complainant for
lodging the same on that date. It is argued that mere pendency of civil
proceeding cannot curtail the right of the complainant to lodge a complaint
where offence is committed by a person. On 18th of July, 2023 there was no
order of injunction and it is denied that he is an employee as alleged. The
learned Advocate relied upon the decision in Kathyayini Versus Sidharth
P.S. Reddy and Ors1.
10. The Learned Advocate further denied of suppression of mentioning the
previous suit as on the date the previous suit was withdrawn and only the title
suit no. 953 of 2023 subsisting. A revisional application being CO no. 440 of
2024 was filed by this Opposite Party and by an order dated September 3,
1
2025 SCC Online SC 1428
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2024 direction was given to withdraw it to the 4th Court of Civil Judge
analogues trial and disposal of title suit 953 of 2023 and title suit no. 978 of
2023.
11. The Learned prosecution argued that the on completion of investigation the
charge sheet has been furnished which prima facie established the allegations
against the petitioner and hence he should face the trial.
Analysis
12. Heard the submission. It can be gathered from the record that the suit filed
by the petitioner no 2 in the year 2023 against the opposite party was for
declaration that the defendant is a stranger trespasser in the suit premises
and for permanent injunction to restrain him from creating third party interest
and also not to alienating or changing the nature and character. The Opposite
Party no. 2 also filed a suit for declaration against both the petitioners that he
is a tenant in respect of the suit plot and prayed for permanent injunction
restraining the petitioners from entering into the suit property with force and
from dispossessing him without due process of law. Both the suits are pending
before the court of civil judge ,Senior Division at Alipore .In the suit filed by
the opposite party no 2 obtained an order of interim injunction restraining the
petitioners to dispossess him without due process of law till 10.8.2023. From
the record it further transpires that a Suit for Defamation was also filed by the
opposite party no 2 against the present petitioners along with the wife of the
petitioner no 2.In this backdrop the complaint was filed under section 200
Cr.P.C by the opposite party against the petitioners including the sister of
petitioner no 1 .The date of incident mentioned was on 8.7.2023 at about 5
p.m. when the petitioners trespassed into his chamber and abused him with
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filthy languages and threatened to oust him .The date of incident of demolition
and removal of shutter was on 22.6.2023 which was the cause of action for
filing the suit for declaration by the petitioner no. 2 and in order to protect his
interest the order of injunction was granted against the Opposite Party no. 2
restraining him from creating the third party interest till 4.8.2023 .
13. Therefore from the above the longstanding civil dispute over the suit
premises regarding the status of the Opposite Party no. 2 are well founded.
Whether the opposite party is a tenant or trespasser can only be decided by
the civil court .It is a settled proposition of law that merely because a civil
dispute is pending cannot ipso facto take away the right of a person from
initiating criminal proceeding if he alleges of commission of criminal offences
but in order to maintain that the primary essential ingredients must subsist to
attract any penal section. In the decision relied upon by the Learned advocate
of the opposite party in Kathyayini vs Siddharth P.S Reddy and ors (supra)
it was held in paragraph 8 that:-
‘8. It is thus well settled that in certain cases the very
same set of facts may give rise to remedies in civil as well
as in criminal proceedings and even if a civil remedy is
availed by a party ,he is not precluded from setting in
motion the proceedings in criminal law .’
It was further held that pendency of civil proceedings on
the same subject matter, involving the same parties is no
justification to quash the criminal proceedings if a prima
facie case exists against the accused persons.
14. Therefore it should be prima facie evident that the complaint lack sufficient
materials to constitute an offence and also during investigation nothing
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evinces to constitute the offences in respect of which the charge sheet is
submitted. The High Court is not denuded to exercise the inherent power
where the continuation of criminal proceeding would amount to an abuse of
the process of law or where the dispute is purely of civil nature and criminal
colour has been artificially given to it.
15. On close scrutiny of the entire complaint it is evident that the opposite party
did not specify the role attributed by the present petitioners as allegations were
made against four accused persons in respect of an incident dated 8.7.2023. It
is further apparent that the complainant mentioned about a chamber in
respect of which the tenancy was claimed when the specific case of the
petitioner s are that the originally the tenancy was given to Rampratap Shaw
in respect of a shop room and the present opposite party is claiming to be the
son of Rampratap Shaw . The petitioners filed application under Order 39
Rules 2(A) for violating the order of injunction granted in his favour and also
lodged a complaint before Kalighat Police station as the Opposite Party
forcefully took the possession of that shop room. The allegations against the
present petitioners are found omnibus in nature without specifying any role
attributed against petitioners when the petitioner no. 1 is an aged lady.
Nothing is mentioned as to how the aged lady can threatened the Opposite
Party no. 2 with dire consequences. No gesture or word spoken can be found,
Similarly, the materials collected during instigation also do not suggest that
prima facie enough materials exists to constitute the offence as alleged.
Therefore on the face of it no ingredients can be found to attract the offences
alleged was made out against the petitioners specially when civil disputes are
pending between the parties which are the root cause of all disputes. That
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apart the Learned Co-ordinate Bench while admitting this revisional
application observed the manner in which the cognizance was taken by the
learned Magistrate. On perusal of the order dated 25.7.23 it is apparent that
the Learned Magistrate after examining the complainant under Section 200
Cr.P.C observed that prima facie offence made out against the accused persons
and directed to issue process despite the fact that order issuing process is a
serious matter. It is settled law that the Magistrate is required to examine the
nature of allegations made in the complaint and the evidence both oral and
documentary in support thereof and to ascertain whether that would be
sufficient for proceeding against the accused. In this case the complainant
before the Court stated about assault when the complaint was absolutely
silent about the same.
16. The scope of Section 482 is wider than that of discharge proceedings ,as in
quashing petitions the accused may rely on documents outside the charge
sheet to demonstrate abuse of the process of law in order to prevent the abuse
of the process of law. Furthermore the criminal prosecution must not be
permitted as an instrument of harassment or private vendetta as held time
and again by the Hon’ble Apex Court.
17. In the present case from the nature of allegations made coupled with the
fast of pending civil dispute over the suit property and other proceeding
including a suit for defamation claiming Rs. 50,000/- in respect of the self-
same allegation on the same day which express otherwise that the Opposite
Party no. 2 for opted both civil and criminal fprum alleging defamation.
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Conclusion
18. Therefore on cumulative assessment of the entire gamut of the case and the
content of the written complaint as well as from the materials collected during
the investigation it is apparent that the dispute is purely civil in nature and
over the same incident suit for defamation has also been filed by the Opposite
Party no. 2 claiming Rs. 5,00,000/- and also Title suits are pending between
the parties. There is apparent the non-application of mind by the Learned
Magistrate in taking cognizance when the embellishment was clearly apparent
from the statement of the complainant and the content of written complaint
and the Learned Magistrate issued the process without arising any reason.
19. Therefore this Court is of the view that if the proceeding is allowed to be
continued it would be abuse of the process of the Court.
20. Hence this criminal revisional application stands allowed. The entire
proceeding is quashed against the petitioners.
21. No order as to costs.
22. Urgent certified copy of this order, if applied for, be supplied expeditiously
after complying with all necessary legal formalities.
(CHAITALI CHATTERJEE DAS,J.)
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