IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT: THE HON’BLE JUSTICE UDAY KUMAR CRR 3824 of 2022 Nisar Ahmed @ Mohammad Nisar Ahmed -VS- State of West Bengal & Anr. For the Petitioner : Mr. Imtiaz Ahmed Mrs. Ghazala Firdaus Mr. Sk. Saidullah Mr. Mithun Mondal Mr. Md. Arsalan For the State : Mr. Debasish Roy, P.P Mr. Arijit Ganguly Ms. Debjani Sahu Hearing concluded on : 28.03.2023 Judgment on : 11.04.2025 UDAY KUMAR, J.: – 1. The petitioner prayed for quashing of proceedings of G.R. Case No. 357 of 2020, arising out of Jorasanko Police Station Case No. 67 of 2020 dated 18th March 2020, the charge-sheet being No. 168/2020 dated 29th July, 2020 and all orders passed therein by Learned Metropolitan Magistrate, 15th Court, Calcutta, where the proceeding is pending. 2. Brief facts of this case are that opposite party no.2 Yusra Akhter lodged a written complaint to the Officer-in-charge of Jorasanko Police Station at around 15.55 hour on 18th March, 2020, that Nisar Ahmad obstructed her way in front of Premises No. 16, Zakaria Street, Kolkata–700073. 2 When she objected him from doing so, petitioner insulted her by slapping and outraged her modesty by abusing in public view, out of anger. 3. The Officer-in-Charge of the police station started Jorasanko P.S. Case No. 67/20 under Sections 341/509/354 of Indian Penal Code 1860, against the petitioner, on 18th March, 2020, and he endorsed it to S.I. Sabiruddin, for investigation. The investigation was culminated into charge-sheet filed under Sections 341/509/354 of Indian Penal Code, 1860 on 29.07.2020, upon which Learned Metropolitan Magistrate, 17th Court Calcutta taken cognizance of the offences under same sections. 4. Petitioner prayed for quashing of entire proceedings on the ground that he was falsely implicated in this case out of grudge and enmity. 5. Mr. Imtiaz Ahmed, Learned Counsel for the petitioner contended that petitioner was the private tutor of Yursra Akhter/opposite party no.2, and had some outstanding tuition fee with her. He visited her earlier for said money, but she refused. Their relation became bitter on this issue, which triggered opposite party no.2, and Sajid Akhter, Firoz @ Guddu to obstruct the way of petitioner near 6, Raj Mohan Street in the evening of 04th March, 2020, abused him in filthy language, and to assault him with fist and blow, which caused him bleeding injuries. He visited hospital for the treatment of said injuries. Petitioner informed the entire incident to the Officer-in-Charge of Jorasanko Police Station at about 4.45 pm on 4th March, 2020, upon which Jorasanko Police Station Case No. 357 of 2020, dated 4th March, 2020 was started against Yusra Akhter, Sajid Akhter, Firoz @ Guddu under Sections 341/323/506 /114 of Indian Penal Code, 1860, however investigation was culminated into final report. 3 6. Mr. Ahmad further stated that instant case was initiated against petitioner on the written complaint of the opposite party no.2 lodged to the Officer-in-Charge of Jorasanko Police Station on 18th March, 2020, out of vengeance. Since petitioner was falsely implicated in this proceeding, it is liable to be quashed in the light of proposition of law decided under Paragraph No. 12 of Akanksha Katiyar and others v. State of U.P. and others (2024 SCC Online All 3141). The order of the cognizance taken by the Learned Magistrate is based on the statements recorded by investigating officer during faulty investigation, is also deserved to be quashed in the light of observations made under Paragraph No. 6 in Alauddin & Ors v. the State of Assam & Anr. (Criminal Appeal No. 1637 of 2021). 7. At last, he relied on the grounds for quashing of a criminal proceeding discussed under paragraph 102 of Bhajan Lal’s case, has been reiterate under paragraph No. 11 of Mahmood Ali Ors. v. State of U.P. & Ors. (Criminal Appeal No. 2341 of 2023). 8. Therefore, Mr. Ahmad prayed for quashing of impugned proceeding initiated on the false allegations of opposite party no.2 against the petitioner with intention to harass him, out of vengeance. 9. Mr. Debasish Roy, Learned P.P. submitted that the petitioner and opposite party no.2 had a relationship of teacher-pupil. Subsequentially their relationship turned hostile, over demand of outstanding tuition fee. Consequently, petitioner lodged a case against opposite party no.2 on 04.03.2020, while opposite party no.2 lodged her case against petitioner on 18.04.2020 and case counter-case may be a good ground to draw a 4 presumption of false implication, but it cannot held in simpliciter, merely on the basis of the facts on record, without passing through the process of trial. Prima facie, sufficient material is available on record. The disputed question facts are involved in this case which should be decided by the Trial Court on the basis of the evidences adduced by the witnesses. 10. He further submitted that power of quashing should be used sparingly, only to discharge complete and substantial justice. As such he prayed for dismissal of this application, as sufficient material is available on record against the petitioner. 11. The main question involve in this case for determination is that how far a previous prosecution, or case-counter case or prevailing strenuous relationship between the party, would affect the sanctity of a proceeding? 12. Admittedly, petitioner was the private tutor of opposite party no.2. The dent appeared in their relationship on the claim of outstanding tuition fee left with opposite party no.2 and she avoided to pay the same even after repeated claim. 13. On this issue, opposite party no.2, restrained the way of petitioner, abused him and assaulted him with fist and blow on 04.03.2020, which was registered as Jorasanko Police Station Case No. 357 of 2020, against Yusra Akhter, Sajid Akhter, Firoz @ Guddu under Sections 341/323/506 /114 of Indian Penal Code, 1860, but final form was submitted by I.O. after investigation. 14. After gap of 14 days impugned case was registered with the same police station on the complaint of opposite party no.2 against the petitioner that 5 he restrained her way, slapped her and abused her publically to outrage of modesty. As per petitioner, she filed her complaint out of vengeance to harass him by implicating him falsely in this matter. 15. Opposite party no.2 stated in her statement recorded by I.O. under Section 161 of Code of Criminal Procedure, 1973, that when she was walking along the Zakaria Street, her ex-tutor Nisar Ahmed came in front of her, obstructed her path, pushed her back, twisted her hand and when she requested him to let her go, he slapped her in left chin, abused her and threatened her to kill at the date, time and place of occurrence. Then, she raised alarm. Hearing her alarm Abdul Quddus, Md. Farhar, Md. Khalid Khan gathered. They took her to police station. Petitioner harassed her earlier as well. 16. The witnesses Abdul Quddus, and Md. Farhar stated to the I.O that on 18.3.2020 at around 3.55 pm they were standing at 16, Zakaria Street, and Yusra Akhter was walking along Jakaria Street. Suddenly petitioner obstructed her way, abused her with filthy language, slapped her when she protested and outraged her modesty. Similarly, Md. Khalid Khan stated that at that time he was taking tea on footpath when petitioner suddenly came in front of Yusra Akhter who was walking along the Jakaria Street and obstructed her way, started abusing her with filthy language and when she protested, the person slapped her thereby her modesty was outraged. 17. Prima-facie, sufficient material appears from the written complaint and the statement of witness recorded under Section 161 of Code of Criminal Procedure, 1973. The element of veracity of allegations or false 6 implication could only be ascertained, on the basis of the evidences adduced by witness on oath before the Trial court. 18. Referring the ratio expressed under paragraph 12 of Akanksha Katiyar case (supra) wherein, criminal proceeding was quashed on the basis proven unfriendly relationship between spouses, for the quashing of this proceeding as it has also been initiated out enmity inculcated between the parties. 19. But the ratio is not applicable for any relationship except the relationship of spouses, where retaining cordial relationship between the parties are general presumption. If spouse fails to maintain cordial relationship that should be considered for quashing of proceeding pending between them out of said strenuous relationship between them. In view of uncordial relationship persisted between the spouses, the proceeding initiated out of such relationship was rightly quashed. But the parties of this proceeding are not spouses nor they were related to each other in any manner, except the formal relationship of tutor-pupil. So, cordiality in their relationship was not a factor which may attract the ratio of the above cited case. 20. The statements of witnesses recorded under Section 161, 162 and 164 of Code of Criminal Procedure, 1973, written complaint, seizure lists etc. are important material on record shall be used for determination of any question, prima facie, at pre-trial stage, and they can be used for the purpose of corroboration and contradiction of facts as per Section 145 of the Indian Evidence Act, 1872 (1 of 1872). 7 21. Therefore, the evidentiary value of Section 161 and 162 of Code of Criminal Procedure, 1973 has been discussed in Alauddin & Ors (Supra) would not be applicable here as is not in dispute. It was rightly considered by Learned Metropolitan Magistrate 17th court for taking cognizance. Such statements are at pretrial stage for these purposes. Therefore, I do not find any relevancy of the proposition laid down in this case, at this stage. 22. In paragraph No. 11 of Mahmood Ali Ors. v. State of U.P. & Ors. (Criminal Appeal No. 2341 of 2023) the parameters for quashing of an FIR have been discussed. It is represented as follows:- “11. The entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the State of Haryana v. Bhajan Lal, AIR 1992 SC 604. The parameters are: "(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 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 8 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." 23. The parameters enumerated in State of Haryana v. Bhajan Lal, AIR 1992 SC 604, would be applicable only in the case where it appears on the face of complaint that it is concocted and fabricated one. A complaint can be quashed where the allegations made in 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 the case alleged against the accused, or where a clear abuse of the process of the Court, or when the criminal proceeding is found to have been initiated with malafide intention or malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable, and where the complaint is bereft of basic facts which are necessary for making out the offence. 24. High Court empowers to quash a proceeding only to give effect to any order under this Code, or to prevent abuse of the process of any Court, or to secure the ends of justice, but this power should not be used to stifle a legitimate prosecution, rather it should be used sparingly and with abundant caution. 9 25. For this purpose, I examined the complaint as a whole, and considered on the statements of the witness recorded under Section 161 of Code of Criminal Procedure, 1973 to gauge whether complaint, prima facie constitutes any offence or make out the case alleged against the petitioner or not. The complaint discloses as to the existence of strenuous relationship between the parties. Filing of case and counter case, definitely, does not show a healthy relationship between them. Defence as to the existence of previous prosecution, or case-counter case or prevailing strenuous relationship between the party or enmity cuts both ways. It totally depends on the material available on the records. When it appears from the material on record that prima facie, there is sufficient proof available in support of the allegation, the case shall not be quashed and should be decided by the trial court. In addition to that, investigating officer submitted charge sheet on the basis of the proofs collected against petitioner, is also sufficient to negate the prayer of petitioner. 26. In view of the above deliberations, I can conclude that mere plea of previous prosecution, or case-counter case or prevailing strenuous relationship between the party, would not affect the sanctity of a proceeding. Everything would depend on the content of the complaint. 27. Moreover, the abuse of process of court, could not be held ipso facto, mere on the plea of false implication. In such situation, it would always be preferrable to let the matter decided by Trial Court. 28. Therefore, I do not find any merit in this revisional application. 29. Accordingly, the C.R.R 3824 of 2022 is dismissed. 30. There is no order as to the cost. 10 31. Interim order, if any, stands vacated. 32. Urgent Photostat certified copy of this order, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. (Uday Kumar, J.)