DISTRICT: PURBA MEDINIPUR

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION
C.R.R. No. of 2022
In the matter of:
An application under Section 401
read with Section 482 of the Code
of Criminal Procedure, 1973;
And
In the matter of:
Order or Orders passed in
connection with GR Case No.
463/21 arising out of Nandigram
Police Station Case No. 122/2021
dated 27.03.2021
(RC0562022S0003 dated
03.02.2022) under Sections
302/341/323/325/307/427/379/506
/109/34 of the Indian Penal Code,
1860, thereby refusing to re-
number the case and to permit the
Petitioner to proceed with further
investigation of the same in
accordance with law;
And
In the matter of:
Central Bureau of Investigation,
Represented by ___________
…Petitioner
Versus
1. The State of West Bengal;
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2. Lakhi Manna,
Wife of Late Rabindranath Manna,
Of Village: Balarampur, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code: __________;
…Complainant/Opposite Party
3. Pabitra Kar,
Son of Paresh Kar,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
4. Radhakanta Das @ Mithun,
Son of Sahadeb Das,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
5. Pratap Jana,
Son of Paresh Jana,
Of Village: Balarmpur, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
6. Jagannath Manna,
Son of Sambhu Manna,
Of Village: Balarmpur, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
7. Narayan Das,
Son of Iswar Das,
Of Village: Balarmpur, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
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8. Chandan Jana,
Son of Pran Krishna Jana,
Of Village: Balarmpur, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
9. Shaktipada Pradhan,
Son of Hrishikesh Pradhan,
Of Village: Balarmpur, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
10. Gourishankar Jana,
Son of Shyamsundar Jana,
Of Village: Balarmpur, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
11. Siddhartha Guria,
Basudeb Guria,
Of Village: Balarmpur, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
12. Ranjan Samanta,
Son of Jayanta Samanta,
Of Village: 2nd Part Jalpai, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
13. Biswajit Pradhan,
Son of Narayan Pradhan,
Of Village: 2nd Part Jalpai, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
14. Narugopal Pradhan,
4

Son of Jitendra Pradhan,

Of Village: 2nd Part Jalpai, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
15. Indrajit Pradhan,
Son of Narugopal Pradhan,
Of Village: 2nd Part Jalpai, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
16. Ashok Bera,
Son of Bankim Bera,
Of Village: 2nd Part Jalpai, Police
Station: Nandigram, District: Purba
Medinipur, PIN Code___________;
17. Subhas Das,
Son of Tapan Das,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
18. Chandan Khatua,
Son of Late Pravanjan Kahtua,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
19. Subrata Ponda,
Son of Tapan Ponda,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
20. Bimal Dey,
Son of Ananta Dey,
5

Of Village: Boyal, Police Station:

Nandigram, District: Purba
Medinipur, PIN Code___________;
21. Kartick Maity,
Son of Khsitish Maity,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
22. Prasanta Barik,
Son of Manoranjan Barik,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
23. Asim Barik,
Son of Santosh Barik,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
24. Dilip Ponda,
Son of Gourishankar Ponda,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
25. Madhusudan Agasthi,
Son of Ananta Agasthi,
Of Village: Boyal, Police Station:
Nandigram, District: Purba
Medinipur, PIN Code___________;
26. Radhakanta Bera,
Son of Baikuntha Bera,
Of Village: Boyal, Police Station:
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Nandigram, District: Purba

Medinipur, PIN Code___________;
…….Accused/Opposite Party
To
The Hon’ble Prakash Shrivastava, Chief Justice and His companion
Justices of the said Hon’ble Court.
The humble petition on behalf of
the Petitioner above named;
Most Respectfully Sheweth:
1. That the Petitioner being a prosecutor and investigating agency,
in the interest of justice, humbly invokes the revisional as well as
inherent jurisdiction of this Hon'ble Court to seek setting aside of the
impugned orders dated 8th February, 2022 and 10th May, 2022 passed
by the Learned Additional Chief Judicial Magistrate, Haldia, Purba
Medinipur, in connection with the subject criminal proceeding. The
Learned Magistrate vide an order dated 8 th February, 2022 refused to
re-number the subject criminal proceeding as RC0562022S0003 dated
03.02.2022 on the grounds stated therein. The Learned Magistrate
further vide impugned order dated 10 th May, 2022 refused to permit
the Petitioner to continue with further investigation of the same. Both
the orders are against the established principles of law as well as
respective provisions of the Code of Criminal Procedure, 1973 and
against true content and purport of the order passed by the Hon'ble
High Court, Calcutta in connection with WPAs (A) 142, 143, 144, 145,
146, 147, 148, 149 & 167 of 2021. The Learned Magistrate while
passing the impugned orders did not consider that the subject matter
of investigation of the impugned proceeding will come within the scope
and ambit of post-poll violence and as such the Petitioner is only
authorized to investigate/further investigate the same.

2. That the Petitioner states that pursuant to a letter of complaint

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lodged by one Lakhi Manna, Wife of deceased Rabindranath Manna,

with the Officer-in-Charge of Nandigram Police Station, the impugned
criminal proceeding was registered for investigation as Nandigram
Police Station Case No. 122/2021 dated 27.03.2021 for commission of
the complained offences punishable under Sections 341/323/325/
307/427/379/506 and 34 of the Indian Penal Code, 1860.
Subsequently, the charge under Section 302 was incorporated and the
investigation of the said prosecution was transferred to Purba
Medinipur DD, CID West Bengal.

3. That the then investigating agency upon completion of primary

investigation submitted its Charge Sheet with the prayer for submitting
Supplementary Charge Sheet upon completion of further investigation.

4. That the genesis of the prosecution case is alleged attack on

deceased Rabindranath Manna and some other TMC supporters on 27 th
March, 2021, while they were returning home. It is alleged that 40 to
45 unknown persons, being armed with wooden logs, iron nail belts,
iron rods, iron chains, dagger, chopper, etc. and deadly weapons,
attacked the deceased and his associates. 4 accused persons named
in First Information Report assaulted him from behind, consequently
the deceased received bleeding injuries and lost his sense. It is further
alleged that the accused persons assaulted him mercilessly. The
deceased and other injured persons were taken to Nandigram Hospital
and from there was referred to Tamuk Hospital. Subsequently, due to
deterioration of the condition the deceased was referred to PG
Hospital, Kolkata. It is further alleged that the accused persons
vandalized the motorcycle, took the mobile phone of the deceased and
snatched the sum of Rs. 10,000/- from his possession.

5. That during the pendency of the investigation of the said

criminal proceeding, due to brazen attacks on several persons owing
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to political rivalry throughout the state of West Bengal, which is

termed as post-poll violence, several writ petitions and Public Interest
Litigations were filed before this Hon'ble Court. The said litigations
were numbered as WPAs (A) 142, 143, 144, 145, 146, 147, 148, 149 &
167 of 2021 and were placed before the Hon’ble Larger Bench of this
Hon'ble Court for due consideration.

6. That, this Hon’ble Court vide order dated 19.08.2021 in WPA(P)

142, 143, 144, 145, 146, 147, 148, 149 and 167 of 2021 transferred all
cases of post poll violence, where allegations are about murder of a
person and crime against women regarding rape/attempt to rape. The
relevant para 82 of the order dtd. 19.08.2021 is reproduced as below:
82. In view of our aforesaid discussions, we direct as follows:
i) All the cases where, as per the report of the Committee, the
allegations are about murder of a person and crime against women
regarding rape/attempt to rape, shall be referred to CBI for
investigation. The Committee, NHRC, any other Commission or
Authority and the State shall immediately hand over entire record of
the cases entrusted to the CBI for investigation. It is made clear that it
shall be the Court monitored investigation. Any obstruction in the
course of investigation by anyone shall be viewed seriously.
ii) For other cases, as have been referred to in the report of the
Committee, Special Investigation Team is constituted for monitoring
the investigation. The team shall be headed by Suman Bala Sahoo, and
Soumen Mitra and Ranveer Kumar, all IPS officers of the West Bengal
cadre, shall be its members The SIT shall be entitled to take assistance
of any other officer/police officer or any institution or agency for
carrying out fair investigation of the cases. It is made clear that it shall
be Court monitored investigation. The State shall spare their services
for the purpose, as and when required and shall not take any adverse
action against them without specific permission of the Court. The
working of the SIT shall be overviewed by a retired Hon’ble Judge of
 9

Hon’ble the Supreme Court, for which separate order shall be passed
after taking his/her consent. His/her terms of appointment shall be
decided later on.
iii) Notice issued to Rashid Munir Khan, Deputy Commissioner of Police,
South Suburban Division, Kolkata vide order dated July 13, 2021, to
show-cause as to why proceedings for contempt be not initiated
against him, shall be dealt with later.
iv) As the core issue regarding the post-poll violence and the action
required to be taken thereon has been resolved with the directions for
proper investigation of cases by the CBI and the SIT as referred to
above, the matters now shall be placed before the Division Bench for
dealing with other issues in the report and further proceedings.
v) The application bearing CAN No 4/2021 in WPA(P) 142 of 2021 filed
by the Partha Bhowmick and Jyotipriya Mallick for impleading as
parties to the proceedings, is rejected as they are neither necessary
nor proper parties to the proceedings for the issues being dealt with by
this Court.
vi) The sealed cover (Annexure – I) submitted by the Committee along
with its report, second autopsy report of Abhijit Sarkar, DNA analysis
report as submitted by the Director Command Hospital, Kolkata and
any other sealed cover pertaining to the case, lying with the Registrar
General of this Court shall be handed over to the authorised officer of
the CBI against proper receipt. Any documents/material therein, which
is not relevant to the cases to be investigated by the CBI shall be
handed over by it to the head of the SIT.
vii) Immediate action shall be taken by the State to pay compensation
to the victims of crime as per the policy of the State, after due
verification. It shall be direct bank transfer in their accounts. The same
will not debar them to claim further compensation under any law or
scheme of the Government, for which the victims shall be at liberty to
avail of their appropriate remedies.
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viii) We direct the CBI and the SIT to submit its status report in Court
within six weeks from today.
ix) The CBI or the officer heading the SIT shall be entitled to file
application for any further direction to enable them to carry out
investigation expeditiously and in a fair manner. Such an application
shall be listed before the Division Bench, as per roaster.
x) All the authorities in the State or any other agency, if requested, are
directed to cooperate with the CBI and the SIT in conducting fair
investigation of cases.
xi) It is further directed that in case CBI or SIT finds any case to be not
related to post poll violence, the same shall be transferred to the
officer incharge of the concerned police station for further
proceedings. Entire record pertaining to the same shall be handed over
to the concerned officer against proper receipt.
xii) It is made clear that any observation made in this order is only for
the limited purpose of deciding the issue whether investigation is to be
handed over to CBI and Special Investigation Team. Nothing observed
shall be construed as an expression of opinion on the merits of the
cases.”
A server copy of the order dated 19th August, 2021 passed by the
Hon’ble Larger Bench of this Hon'ble Court in connection with WPAs (A)
142, 143, 144, 145, 146, 147, 148, 149 & 167 of 2021 is annexed
hereto and marked with the letter ___.

7. That the Petitioner states that while dealing with the issue of
post-poll violence, this Hon'ble Court in its order dated 19 th August,
2021 in Para 69, made the following observation:
‘One of the argument raised by the State was to fix the period of crime
reported during which can be considered as post poll violence. But we
do not wish to enter into that area for the reason that if any aggressor
party commits an offence on account of some one’s participation in
the election process and supporting a particular political party, the
 11

same shall be considered as post poll violence and no time limit as

such can be fixed. Further, polling in the state was in eight phases
starting from March 27, 2021 and ending on April 29, 2021. In every
phose of polling some of the persons who support or works for a
particular party are well known. If any offence is committed even
before declaration of result and has connection with the election
process, even that can also be considered as part of the post poll
violence. Any threat to a victim or complainant afterwards is also
continuation of offence related to the polls. It will be for the
investigating agency to find out from the facts of the case. The
investigating agency shall also find out as to whether the police had
registered the FIRs under the proper sections or not.’

8. That the Petitioner states that true and proper appreciation of

the genesis of the prosecution case explicits that the incident revolves
around political rivalry during poll and post-poll situation in the state of
West Bengal. It is needless to mention that the place where the
incident has taken place, date of polling in that constituency was fixed
on 27th March, 2021. According to the prosecution case the incident
happened immediately after the polling was over. In view of the
observation made by Hon’ble Larger Bench of this Hon'ble Court while
disposing of the batch of writ petitions as mentioned above, the
complained incident will come within the purview of post-poll violence
and as such this petitioner is only authorized to investigate the same
in accordance with law of the land.

9. That in compliance with the order dated 19 th August, 2021

passed by this Hon'ble Court the Petitioner re-registered an First
Information Report being RC0562022S0003 dated 03.02.2022 under
Sections 341/323/325/307/427/379/506/34 of the Indian Penal Code,
1860 against the accused persons named in First Information Report of
Nandigram Police Station Case No. 122/2021 dated 27.0.2021 under
 12

Sections ____________. It is needless to mention while the Petitioner re-

registered the First Information Report for the purpose of conducting
further investigation in connection with the subject criminal
prosecution, treated the earlier First Information Report as original one
and only changed registration number of the same for the purpose of
maintaining proper records. It is not the case that they have registered
altogether a separate proceeding over the self same incident violating
the established principles of law.

10. That under such circumstance, on 4 th February, 2022 the

Learned Additional Chief Judicial Magistrate, Haldia received a First
Information Report bearing no. RC0562022S0003 dated 03.02.2022, of
CBI, SCB, Kolkata. In the forwarding report it was categorically
mentioned that the subject First Information Report is continuation of
the proceeding already registered as Nandigram Police Station Case
No. 122/2021 dated 27.0.2021. However, the Learned Magistrate
without recording the same, fixed 8 th May, 2022 for hearing the
respective parties. The Learned Magistrate vide the same order was
pleased to observe that already Charge Sheet has been submitted in
connection with the instant case by the then Investigating Agency and
there has been no prayer and specific order for re-investigation or
further investigation by a separate agency.

11. That on 8th February, 2022 the Learned Magistrate after viewing
the Learned Advocates appearing for the respective parties was
pleased to refuse to register the case as RC0562022S0003 dated
03.02.2022, however, pleased to affirm the order dated 4 th February,
2022 to the extent of keeping the First Information Report in record.

12. That the Learned Magistrate while passing the said order erred in
law and fact without appreciating the true content and purport of the
order dated 19th August, 2021 passed by the Hon’ble Larger Bench of
 13

this Hon'ble Court. The manner in which the Learned Magistrate gave a
restricted interpretation to the word ‘post-poll violence’ and held that
this proceeding will not come under the purview of the same that is
unheard of. The Learned Magistrate while refusing to re-number the
case erroneously gave undue stress on certain issues for example
general consent, investigation of the case by a specialized agency, etc.
as canvassed by the Learned Advocate appearing for the state of West
Bengal, i.e., non-est in the eyes of law. The Learned Magistrate
astoundingly made a cryptic and restrictive interpretation of the order
passed by this Hon'ble Court on 19th August, 2021, mechanically held
that the charge of further investigation of this case cannot be handed
over to the Petitioner as it does not find its place in the report of the
fact-finding committee based on which the Hon’ble Larger Bench
passed the solemn order. The Learned Magistrate erroneously
interpreted the jurisdiction of the petitioner to conduct investigation of
cases relating to post-poll violence and held that the Petitioner has no
locus to proceed with the further investigation of the same. The
Learned Magistrate while making such observations erroneously
observed that post-poll violence refers to only those incidents which
have taken place on immediate aftermath of the election results and
the complaints must have a direct nexus to the election results. Such
restricted interpretations is contrary to the wide meaning and
jurisdiction intended by the Hon’ble Larger Bench of this Hon'ble Court
in its solemn order dated 19th August, 2021.

13. That the Petitioner states that the inherent fallacy of the order
passed by the Learned Magistrate is that the Learned Magistrate
misunderstood the purpose of re-registration of this case as
RC0562022S0003 dated 03.02.2022 and interpreted the same as
registration of a second/subsequent First Information Report over the
self-same incident in complete violation of settled principles of law. It
 14

is not the case of the Petitioner that the First Information Report they
registered is an absolutely a new First Information Report and they
intend to conduct a re-investigation over the complained incident.
Rather, the prayer of the Investigating Agency is restricted to
conducting further investigation of the offence and there is no scope of
legal crisis and/or either of the parties to suffer prejudice. Hence, the
observation of the Learned Magistrate that there is no scope to accept
the First Information Report lodged by the Petitioner vide
RC0562022S0003 dated 03.02.2022 or is same is required to be
recorded to the court register or to register a fresh GR Case has no
legs to stand.

14. That on 27th April, 2022 the Petitioner preferred an application

before the Learned Magistrate thereby praying for conducting further
investigation of the same in connection with the subject criminal
proceeding. The Learned Magistrate upon receipt of the same was
pleased to observe that the impugned criminal proceeding has already
been committed to the Court of Sessions and was pleased to register
this application as Misc Case for further hearing on the 5 th May, 2022.
On 4th May, 2022 on the prayer of the then investigating officer of the
subject criminal proceeding hearing of the case was adjourned in
advance and rescheduled to 10th May, 2022.

15. That on 10th May, 2022, the Learned Magistrate after hearing the
Learned Advocates appearing for the respective parties, vide an order
dated 10th May, 2022 was pleased to refuse permission to the
Petitioner to proceed with further investigation of the instant case on
the grounds stated therein.
Certified copy of the respective orders passed by the Learned
Magistrate in connection with subject criminal proceeding as well as
the certified copy of the application preferred by the Petitioner,
praying for further investigation in connection with the impugned
 15

criminal proceeding is attached with the instant application.

16. That the Petitioner states that the Learned Magistrate while
passing the impugned order erred in law and fact without appreciating
the true content and purport as well as the circumstance in which the
Hon’ble Larger Bench of this Hon'ble Court was pleased to transfer the
investigation of all the cases relating to post-poll violence to the
Petitioner, one of the most premier Investigating Agency of the
country. It is needless to mention that this Hon'ble Court was
disgusted with the aftermath of the post-poll incidents, sheer
lawlessness throughout the state and deprecating obliging attitude of
the law enforcement agency during investigation relating to post-poll
violence. This Hon'ble Court was seriously concerned with the extreme
ramification of the post-poll violence upon the society and as such
intended to give maximum liberal interpretations to the word ‘post-poll
violence’ and the jurisdiction to investigate the same.

17. That the Learned Magistrate while passing the order impugned
holding the impugned proceeding as out of the purview of post-poll
violence erred in law and fact without appreciating the observation of
the Hon’ble Larger Bench of this Hon'ble Court in Paragraph 69 of its
solemn order dated 19th August, 2021. It was specifically argues before
this Hon'ble Court that a specific period needs to be fixed for
determining the purport of post-poll violence which the Hon’ble Larger
Bench was pleased to turn down. It was categorically observed that
tenor of the post-poll violence will be nature of the offence committed
against a person because of his participation in election process and
supporting a particular political party. Since election was conducted in
eight phases in West Bengal, even an offence committed prior to the
result of the poll being declared, will come within the purview of post-
poll violence if it has connection with the election process. Further
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intrinsic details are required to be decided in investigation and cannot

be considered for determining whether the incident will fall within the
purview of post-poll violence or not. Admittedly in the instant case the
incident occurred on 27th March, 2020 and relates to election process.
Hence, the incident will within the purview of post-poll violence as
interpreted and/or intended to be interpreted in the order dated 19 th
August, 2021.

18. That while passing the impugned order the Learned Magistrate
erroneously gave stress on the earlier order passed on 4 th February,
2022 and 8th February, 2022. The inherent defect of the said two
orders are that the Learned Magistrate while passing such orders failed
to appreciate the purpose of re-registration of the First Information
Report, sending the same to the Learned Magistrate as well as true
content and purport of the solemn order passed by the Hon’ble Larger
Bench of this Hon'ble Court. The Learned Magistrate did not take into
considerations that re-numbering of the case under no circumstances
changes the colour of prosecution and as such there is no scope of
suffering prejudice by any parties. Since both the orders dated 4 th
February, 2022 and 8th February, 2022 are against the established
principles of law, the same cannot have any bearing for determining
the fate of the application for further investigation preferred by the
Petitioner.

19. That the Petitioner states that the impugned order passed by the
Learned Magistrate is against the true content and purport of
mandatory provision of law as imbibed under Section 173 of the Code
of Criminal Procedure, 1973. The interpretation of the Learned
Magistrate that further investigation of an offence has to be conducted
by the same Investigating Agency is non-est in the eyes of law. It is
needless to mention that the Petitioner absorbed the charge of the
investigation of the subject criminal proceeding pursuant to
 17

direction/solemn order passed by the Hon’ble Larger Bench of this

Hon'ble Court in the batch of writ petitions as mentioned above. Such
order was passed to uphold the law of the land as well as to ensure
administration of justice in its true and proper perspective. Free, fair
and impartial investigation is epithet of free and fair trial and criminal
justice delivery system. Hence, there is no legal crisis and/or difficulty
for the Petitioner to proceed with the investigation of the instant case.
The restricted interpretation which the Learned Magistrate intended to
provide to Section 173 of the Code of Criminal Procedure, 1973 will
frustrate the legislative object as well as the purpose of further
investigation and as such the order impugned has to be set aside.

20. That the Learned Magistrate while passing the impugned order
gave undue stress on the submission of the Learned Special Public
Prosecutor appeared for the CID that the investigation is being
conducted Purba Medinipur, DD, CID and the name of the de-facto
Complainant does not fall in the list provided by the committee. It is
apposite to state that neither of these two considerations has any
bearing for determining the locus/authority of the Petitioner to proceed
with the further investigation of the instant case. The Petitioner further
states order(s) passed by the Learned Magistrate is suffering from
manifest error, gross illegality and has been passed in complete
disregard to the expressed provision of the Code of Criminal
Procedure, 1973 as well as beyond the jurisdiction enshrined upon the
Learned Magistrate. Hence, the impugned orders is no order in the
eyes of law, but creating severe hindrances in free, fair and smooth
investigation of the complained offences, which warrants immediate
interference of this Hon'ble Court.

21. That it is well settled principles of law that free, fair and impartial
investigation being paramount consideration of free and fair trial of a
criminal proceeding, every endeavour has to be made to ensure
 18

proper investigation in connection with every criminal proceeding. The

Central Bureau of Investigation is one of the premier Investigating
Agency armed with pan-India infrastructure and logistic supports,
which is one of the important considerations for perforating larger
conspiracy as well as unearthing the truth in an expeditious and time-
bound manner. The Learned Magistrate further did not consider that
neither the state of West Bengal nor the de-facto Complainant could
canvass a single prejudice that it may suffer owing to continuation of
further investigation by a premier Investigating Agency like CBI.
Besides that, the persons embroiled as accuseds in connection with
this case supported the transfer of investigation to CBI. Cumulative
appreciation of all these circumstances removes every force of the
orders and as such for the interest of justice the same is need to be set
aside.

22. Being aggrieved by and/or dissatisfied with the initiation and/or

further continuation of the proceeding being Case No. 75C/2021 under
Sections 498A/34 of the Indian Penal Code, 1860 as well as all orders
passed in connection with the said proceeding presently pending
before the Learned Judicial Magistrate, 3 rd Court, Malda, the Petitioners
above named preferred the instant revisional application on the
following amongst others:
GROUNDS

I. For that further continuance of the impugned proceeding is

against the established principles of law as laid down by the
Hon’ble Apex Court and by the Hon’ble High Court at Calcutta
on several occasions. It is also in total violation of the
expressed provisions of the Code of Criminal Procedure, 1973
and thus the interference of this Learned Court is highly
solicited in the interest of justice and equity.
 19

II. For that further continuance of the aforesaid proceeding is

glaring example of the abuse of the process of Court which if
allowed to continue for a single day beyond the stage it has
already reached, will degenerate itself into a weapon of
harassment and as such is liable to be quashed forthwith.

III. For that while taking cognizance as well as allowed the

impugned proceeding to continue further, the Learned Chief
Judicial Magistrate, Malda and the Learned Magistrate failed
to appreciate the true scope and mandate of Section
190/202/204 of Code of Criminal Procedure, 1973.

IV. For that the Petitioner No. 1 is the father-in-law of the

Complainant/Opposite Party and the Petitioner No. 2 is her
mother-in-law. The Complainant/Opposite Party got married in
the year of 2015 with the son of the Petitioners. The son of
the Petitioners is __________ and presently employed at
______________. The Complainant/Opposite Party after
solemnization of her marriage with the son of the Petitioners
have been staying at ___________ i.e. at the place of work of
the son of the Petitioners and she never visited the address
where the Petitioners reside.

V. For that there is brazen violation of mandate of law as

enshrined under Section 202 of Code of Criminal Procedure,
1973 and there is inordinate unexplained delay in initiating
the impugned criminal proceeding, which exposes the
inherent mala-fide of the Complainant as well as assail the
very plank of the prosecution case.

VI. For that the discretion available to the Learned

Magistrate(s) under Sections 190/202/204 of Code of Criminal
Procedure, 1973 are judicial discretion and the same has to
 20

be exercised in judicious manner and not in an arbitrary

manner as has been done in connection with the instant case.

VII. For that appreciation of the allegation made in the Petition

of Complaint and solemn affirmation of the Complainant
/Opposite Party indicates that she purposely orchestrated the
impugned proceeding to wreck her personal vengeance.
Hence, considering the genesis, nature of allegation and
totality of circumstances, the impugned proceeding falls
within the periphery of those circumstances where the
Learned Magistrate before issuing process should be more
circumspective and cautious.

VIII. For that it is the mandate of law that in cases, before

exercising discretion available to the Learned Magistrate
under Section 204 of Code of Criminal Procedure, 1973, the
Learned Magistrate must have passed a reasoned order
thereby recording his judicial satisfaction/reasonable
satisfaction as to commission of the alleged offences by the
Accused Persons, which is missing in the instant case. Such
proposition of law is affirmed in catena of decisions laid down
by the Hon’ble Apex Court as well as by this Hon’ble Court.

IX. For that it is settled principles of law that summoning a

person in connection with a criminal matter is serious matter
and have immense consequence in one’s life. Hence, before
asking the Petitioner to face ordeal of trial in connection with
the impugned proceeding, the Learned Magistrate must have
recorded his judicial satisfaction under Section 204 of Code of
Criminal Procedure, 1973, which is missing in the instant
case.

X. For that mere perusal of the petition of complaint and the

 21

pre-summoning evidence of the Complainant will reveal that

the prosecuting agency failed to make out any case against
them for which they could be asked to face ordeal of trial in
connection with the instant case

XI. For that the impugned proceeding has been purposely

orchestrated in order to spite them merely because they are
parents-in-laws of the Complainant/Opposite Party. The
Petitioners are permanent residents of a place, which is far
away from the place where the Complainant/Opposite Party
has been residing, and they never visited the said life during
her matrimonial life.

XII. For that the impugned proceeding has been initiated to

abuse the criminal law to browbeat the Petitioners to
unbridled envy of the Complainant/Opposite Party and to
expose the Petitioners to the chilling possibility of harassment
and persecution. In view of such, the instant proceeding is an
abuse of the process of law for which the immediate
interference of this Hon’ble Court is necessary.

XIII. For that true and proper appreciation of the materials on

record will reveal that the Complainant/Opposite Party set the
law into motion against all of the in-laws without appreciating
the probability and/or plausibility of their involvement in
commission of the alleged offences, which is unheard off.

XIV. For that the Complainant/Opposite Party initiated the

instant case over trivial issues without proper deliberations.
The name of the Petitioners who happen to be close relations
of her husband, who had been living in different cities and
never visited or rarely visited the place where the
Complainant/ Opposite Party resided, with an oblique motive
 22

to implicate all the members of the in-laws family to subject

them undue harassment.

XV. For that from the length and breadth of the Petition of
Complaint, the initial examination of the
Complainant/Opposite Party and the materials on record no
case has been made out against the Petitioners for which they
could be asked to face ordeal of trial in connection with the
instant case. The story projected by the
Complainant/Opposite Party is inherently improbable and
patently absurd for which no man of ordinary prudence could
act on the same.

XVI. For that the allegations leveled in the petition of complaint

and initial examination of the Complainant/Opposite Party
suffer from incongruity. The facts narrated in the petition of
complaint and its accompaniments, singularly lacks either of
the ingredients of the offence alleged. The story loomed large
by the petition of complaint and its accompaniments suffers
from intrinsic hollowness and antagonistic contradictions. The
Complainant/Opposite Party set the criminal law into motion
against the Petitioners, simply to wreak personal vengeance.

XVII. For that the facts of the petition of complaint, its

accompaniments and pre-summoning evidence of the
Complainant/Opposite Party surely makes out a case where
no ingredients making out a case against the Petitioners i.e.
the parents-in-law of the Complainant/Opposite Party appear
to be existing. The genesis of the allegation is restricted
vague allegation of mental and physical torture. However,
there appears to be no specific allegation against the
Petitioners as to how they could be implicated in the mutual
 23

bickering between the Complainant/Opposite Party and her

husband.

XVIII. For that the bald allegations made against the Petitioners
by the Complainant/Opposite Party appeared to suggest her
anxiety to rope in as many of the husband's relatives as
possible, which surely amounts to an abuse of the process of
criminal law, necessitating exercise of inherent powers of this
Hon'ble Court.

XIX. For that upon perusal of the Petition of complaint, its

accompaniments and pre-summoning evidence of the
Complainant/Opposite Party it is apparent that there are no
allegations against Petitioners except casual reference of
their names. Mere casual reference of the names of the
Petitioners in a matrimonial dispute without allegation of
active involvement in the matter would not justify taking
cognizance against them overlooking the fact borne out of
experience that there is a tendency to involve the entire
family members of the household in the domestic quarrel
taking place in a matrimonial dispute specially if it happens
soon after the wedding.

XX. For that in view of the dicta laid down by the Hon’ble
Supreme Court of India in number of decisions further
continuance of the impugned prosecution of the Petitioners
emanating from the impugned petition of complaint, which
does not disclose commission of any cognizable offence
against the Petitioners is non-est in the eyes of law. Exercise
of solemn inherent power of this Hon’ble Court to quash the
impugned proceeding is essential in the interest of justice, to
prevent abuse of the process of law and to prevent patent
 24

miscarriage of justice.

XXI. For that an authority created by statute is bound by its

restrictions. Statute can never be overridden or ignored in the
exercise of statutory power by an authority upon which it is
conferred. The power to investigate as well as to proceed with
any criminal prosecution is not illusory; it is a power, which
emerges from the written law. No inference can be drawn
with regard to power to investigate and prosecute and the
authorities have to restrict it within the limit prescribed under
the statute. Not to proceed with any criminal proceeding
further until and unless the petition of complaint and initial
examination of the Complainant/Opposite Party disclose
commission of offence is a legal mandate and violation of
such mandate goes to the very root of the prosecution case.

XXII. For that the Learned Chief Judicial Magistrate, Malda

without perusing the materials produced in support of the
prosecution in its true and proper perspective erroneously
took cognizance against the Petitioners for commission of the
alleged offences.

XXIII. For that the Learned Chief Judicial Magistrate, Malda failed
to exercise the judicial discretion available to him under
Section 190 of the Code of Criminal Procedure, 1973 in its
true and proper perspective. The discretion available to the
Learned Magistrate under Section 190 of Code of Criminal
Procedure, 1973 is a judicial one and that has to be exercised
in a judicious manner and not in an arbitrary or mechanical
manner as has been done in connection with the instant case.

XXIV. For that the Learned Chief Judicial Magistrate, Malda has
filled up blanks in a cyclostyle pre-printed order sheet in
 25

violation of Rule 183 of the Criminal Rules and Orders. The

order of cognizance, which forms the very basic bastion of the
proceeding, has been passed in a mechanical way. Law
mandates that orders requiring exercise of judicial discretion
are to be recorded by a Magistrate in his own hand or may be
typed under his dictation.

XXV. For that it is judicial mandate that at the stage of taking

cognizance of the alleged offence the Learned Magistrate
upon considering the materials collected during investigation,
must have formed his independent opinion as well as has to
record his judicial satisfaction as to commission of the alleged
offences by the Petitioners. The necessity of recording judicial
satisfaction and/or forming independent opinion as to
commission of the alleged offences by the Petitioners at the
stage of taking cognizance cannot be substituted with the
discretion/satisfaction and/or opinion of the investigating
agency.

XXVI. For that the Learned Chief Judicial Magistrate, Malda while
taking cognizance of the alleged offences did not appreciate
that the Petitioners are relatives of the Complainant/Opposite
Party, staying far away, never visited the place where she
stayed and had no scope to interfere with the matrimonial life
of the Complainant/Opposite Party. The Petition of Complaint,
its accompaniments and pre-summoning evidence of the
Complainant/Opposite Party are conspicuously silent about
their specific involvement in commission of the alleged
offences.

XXVII.For that the Learned Magistrate issued the process against

them without appreciating that the Accused Persons are
 26

permanent resident of a place, which is beyond the territorial

jurisdiction of the Learned Magistrate. Under such
circumstances, he should have postponed the issue of
process and make an enquiry under Section 202 of the Code
of Criminal Procedure, 1973 prior to issuance of process
against them for commission of the alleged offences.

XXVIII. For that the duty of the Learned Magistrate receiving

a complaint is set out in Section 202 of the Code of Criminal
Procedure, 1973 and there is an obligation on the part of the
Learned Magistrate to find out if there is any matter, which
calls for investigation by a criminal court. The scope of
enquiry under this Section is restricted only to find out the
truth and/or veracity of the allegations made in the
complaint in order to determine whether process has to be
issued or not.

XXIX. For that the legislative wisdom for incorporating the

aforesaid amendment under the provision of Section 202 of
the Code of Criminal Procedure, 1973 was to prevent false
complaints which are being filed against persons residing at
far off places simply to harass them. It is apparent from the
complaint itself that the Petitioners hail from a place, which is
lying outside the territorial jurisdiction of Learned Magistrate.

XXX. For that the amended Section 202 of the Code of Criminal
Procedure, 1973 prescribes that any Magistrate, on receipt of
complaint, shall in case where he exercises his jurisdiction,
postpone the issuance of process against the accused person
and either enquire the case himself or direct an investigation
to be made by a police officer or by such other person as he
thinks fit for the purpose of deciding whether or not there is
 27

any sufficient ground for proceeding. It is, thus, manifest that

where the accused resides outside the territorial jurisdiction
of the Court of the Magistrate, the Magistrate is required to
either inquire himself or direct investigation by a police officer
or other person deemed fit by the Magistrate. The said
requirement of law needs to be complied with great care and
caution and not to be treated as an empty formality.

XXXI. For that the purpose of introducing such amendment in

Section 202 (1) of Code of Criminal Procedure, 1973 is the
unscrupulous persons cannot harass the innocent persons.
The purpose of the said inquiry and/or investigation under
Section 202 of Code of Criminal Procedure, 1973 is to prevent
undue harassment of suspects who are residents of ‘far off’
from the tentacles of ‘false complaints’. The object of the said
investigation and/or is limited to the ascertainment of ‘truth’
or ‘falsehood’ of the allegations as made in the complaint.

XXXII.For that no such enquiry or investigation was made either

by the Learned Magistrate or by anybody else at the behest of
the Learned Magistrate in order to meet salutary purpose of
the said enactment. The case record unmistakably parades an
awful exposure of non-performance of such duty on the part
of the Learned Magistrate thereby grossly ignoring the said
mandatory provision of law and dishonouring the wisdom of
the Legislature.

XXXIII. For that astoundingly, the Learned Magistrate

accepted the version of the Complainant/Opposite Party as
sacrosanct without making any endeavour to unearth the
truth. The nature of vague and bald allegations levelled
against the Petitioners must have an entirely different
 28

complexion and the allegations of the Complainant/Opposite

Party are required to be scrutinized with great care and
circumspection.

XXXIV. For that cumulative appreciation of the facts

unerringly indicates that the Complainant/Opposite Party set
the criminal law into motion by twisting material facts, which
if disclosed, no case would have been registered. Suppression
and twisting of material facts goes heavily against the
Complainant /Opposite Party. The Complainant/Opposite Party
did not approach the Court of Law with clean hands and the
Court of law never encourages litigants with dirty pair of
hands.

XXXV. For that the Complainant/Opposite Party has

instituted instant proceeding by suppressing material facts,
which amounts to suppressio veri and suggestio falsi. The
Complainant/Opposite Party acted with utmost mala-fide and
did not disclose material facts while setting the criminal law
into motion. The impugned criminal proceeding has to be
dismissed on this score alone.

XXXVI. For that mere mention of sections and/or language of

the sections will not be all and/or end all of the matter. What
is required to be brought to the notice of the Court of Law is
the actual/specific role played by the Petitioners in
commission of the alleged offences. True and proper
appreciation of the allegations leveled in the petition of
complaint, and pre-summoning evidence of the
Complainant/Opposite Party fails to make out any case.

XXXVII. For that it is apposite to state that neither of the

ingredients of any of the offences, far less offences under
 29

Sections 498A/34 of the Indian Penal Code for which the

Petitioners have been required to face the ordeal of criminal
prosecution, have been made out. Hence, the impugned
criminal proceeding is liable to be quashed.

XXXVIII. For that neither the Petition of Complaint Report nor

the pre-summoning evidence of the Complainant/Opposite
Party furnished the legal basis for the Learned Magistrate to
issue process against the Petitioners for commission of the
alleged offences. Looking to the allegations in the Petition of
Complaint and the pre-summoning evidence, none of the
alleged offences under Sections 498-A/34 Indian Penal Code,
1860 have made against the Petitioners who were
undisputedly not sharing same mess with the Complainant/
Opposite Party. Hence, there is no reason for relegating the
Petitioners to the ordeal of trial and as such, the proceedings
against the Petitioners ought to be quashed.

XXXIX. For that the Learned Magistrate erroneously issued

process against them for commission of the alleged offences
punishable under Section 498A of the Indian Penal Code,
1860, without appreciating that there is hardly any allegation
against them that they ever subjected the
Complainant/Opposite Party to mental or physical torture due
to further demand of dowry or had ever subjected her to such
torture that she would have committed suicide.

XL. For that there is no contemporaneous material evidence to

show that the Complainant/ Opposite Party was ever
subjected to such physical torture, which is sufficient to cause
grave injury or danger to her life or health or limb. Hence,
neither of the limbs of Section 498A of Indian Penal Code,
 30

1860 has been satisfied and entire charge remain

unsubstantiated.

XLI. For that to attract liability under Section 34 of the Indian

Penal Code, 1860, there has to be sufficient material to infer
sharing of common intention and/or premeditation of minds
amongst the Accused Persons. The Petitioners are permanent
resident of Kolkata for last ____ years, which is far away from
the place where the Complainant/Opposite Party used to
reside subsequent to her marriage; the Petitioners never
visited that place. Hence, there was no scope for sharing
common intention and/or subjecting the Complainant/
Opposite Party to torture in conjoint manner.

XLII. For that recently outburst of matrimonial disputes is at

large. Little matrimonial skirmishes suddenly erupt which
often assume serious proportions and unnecessarily, persons,
like the Petitioners, are embroiled as accused in criminal
prosecutions originate from such disputes, over vague and
bald allegations, for satisfying personal grievance and/or
sadistic pleasure. Consequently, those who could have
counseled and brought about rapprochement in matrimonial
relation are rendered helpless.

XLIII. For that if the Petition of Complaint and the pre-

summoning evidence does not disclose specific allegation
against the Accused Persons in a matter arising out of
matrimonial bickering and there is no overwhelming material,
which persuade the Learned Magistrate to issue process
against the Petitioners for the alleged offences, it will be clear
abuse of the legal and judicial process to mechanically send
the said persons to face ordeal of trial.
 31

XLIV. For that it is the well-settled principle laid down in cases

too numerous to mention, that at the stage of taking
cognizance as well as issuing process for the offences
originates from matrimonial disputes, the Learned Magistrate
must apply his judicial mind to scrutinize whether the Petition
of Complaint as well as the pre-summoning evidence of the
Complainant/ Opposite Party prima facie discloses a case of
over implication by involving the entire family of the husband
at the instance of the wife, who is out to settle her scores
arising out of the teething problem or skirmish of domestic
bickering while settling down in her new matrimonial
surrounding.

XLV. For that true and proper appreciation of the allegation

leveled in the petition of complaint and pre summoning
evidence of the Complainant/Opposite Party, fails to make out
any case against the Petitioners. It will clearly indicate that
the impugned criminal prosecution has been preferred by
suppressing material facts representing the entire situation in
a distorted manner and with utmost mala-fide to the
Petitioners, with the sole intention to subject them to undue
harassment. It is well settled principles of law that nobody can
be allowed to take undue advantage in a criminal court as if
somebody is determined to settle the scores.

XLVI. For that the Learned Chief Judicial Magistrate, Malda while
took cognizance and the Learned Magistrate while issuing
process against them for commission of the alleged offences,
did not consider that there is inordinate unexplained delay of
6 years in prosecuting the Petitioners for commission of the
alleged offences. Such unexplained undue delay assumes
 32

much importance in the instant case because of the vague,

incongruous and bald nature of allegations levelled against
the Petitioners.

XLVII. For that cumulative appreciation of all these circumstances

coupled with the fact that the Petitioners are permanent
resident of Kolkata, which is far away from the place, where
the Complainant/Opposite Party reside and never visited the
place where of the Complainant/Opposite Party after her
marriage resided, dislodges the prosecution case from its
root. It clearly postulates that the Petitioners have been
arraigned as accused in connection with the instant case with
an oblique motive and as an ill attempt to satisfy the sadistic
pleasure of the Complainant/Opposite Party, which is non-est
in the eye of law.

XLVIII. For that as per Section 190 of the Code of Criminal

Procedure, 1973 taking cognizance requires great exercise of
judicial mind. Taking of cognizance is not a mechanical
process or a delivery system in the post office that simply an
approval of the Learned Court would be given on a petition
without application of proper judicial mind as the wisdom of
the legislature is quite otherwise as boils down from the letter
of enactment itself. Section 190(1)(b) of the Code of Criminal
Procedure, 1973 states that any Magistrate can proceed on a
certain direction upon a police report of facts which constitute
such offence.

XLIX. For that in order to determine whether prima facie case

exists or not, exercise of a judicial mind is a sine qua non and
the same cannot be surrogated to a mechanical process. Time
and again the Hon’ble Courts including this Hon'ble Court
 33

have deprecated the practice of mechanical exercise of

judicial discretion at the stage of cognizance.

L. For that it is trite law that if initial action is not in

accordance with law, subsequent and consequential
proceedings would fall through for the reason that illegality
strikes at the root of the order. This proposition was
encapsulated by the legal maxim "sublato fundamento cadit
opus" which means that foundation being removed, the
structure falls. In view of the fact that the very initiation of the
impugned proceeding is bad in law and as the petition of
complaint and initial examination of the
Complainant/Opposite Party does not disclose commission of
any offence, continuation of further prosecution is non-est in
the eyes of law and therefore is liable to be quashed.

LI. For that the process of law cannot be permitted to be used

for an oblique or ulterior purpose and as such allowing the
further continuance of the impugned proceeding is an abuse
of the process of court leading to injustice. Hence, for ex
debito justitiae i.e. to do real and substantial justice for
administration of which alone, the courts exist the impugned
criminal proceeding is required to be quashed immediately.

LII. For that it has been categorically stated by the Hon’ble

Apex Court as well as by this Hon’ble Court on several
occasions that in order to prevent judicial process from being
an instrument of oppression or harassment, exercise of
inherent power by this Hon’ble Court is not only desirable but
also necessary so that judicial forum may not be allowed to
be utilized for an oblique motive at the instance of any
vindictive litigants.
 34

LIII. For that the ends of justice being higher than mere ends of
law, the continuation of the proceeding against the Petitioners
would severely and seriously defeats the interest of justice
inasmuch as there being no allegation that how and in which
manner the Petitioners are involved in commission of the
alleged offences. Hence, the impugned proceeding is liable to
be quashed immediately.

LIV. For that further continuance of the impugned proceeding is

otherwise bad in law and the same as such is liable to be
quashed.

1. That the Petitioners have preferred the present petition herein

on the aforesaid grounds that may be argued at the time of hearing of
the present petition and the grounds set out hereinabove are without
prejudice to one another.

2. That the Petitioners crave leave of this Hon’ble Court to add,

alter, amend or substitute any of the aforementioned grounds, if so
advised, at a later stage.

3. That the Petitioners submit that the Petitioners have left with no
other alternative and/or efficacious remedy than to invoke the inherent
power of the Hon’ble Court in order to quash the instant prosecution
which is illegal, untenable and vexatious.

4. That this application is made bona-fide and for the ends of

justice, equity and good conscience.
35

In the premises it is humbly prayed

that Your Lordships may be
graciously pleased to issue a Rule,
service through the Learned Chief
Judicial Magistrate, Malda calling
upon the Opposite Parties to show
cause as to why the impugned
proceeding being Case No.
75C/2021 under Sections 498A/34
of the Indian Penal Code, 1860 as
well as all orders passed in
connection with the said
proceeding presently pending
before the Learned Judicial
Magistrate, 3rd Court, Malda shall
not be quashed and/or set aside,
call for the records and upon
perusing the same and after
hearing the cause that may be
shown be pleased to make the
Rule absolute; and/or Pass such
other or further order or orders as
to Your Lordships may deem fit and
proper.
And
Pending hearing of the aforesaid
Rule, it is further prayed that Your
Lordships would graciously be
pleased to stay all further
proceeding in Case No. 75C/2021
under Sections 498A/34 of the
 36

Indian Penal Code, 1860 presently

pending before the Learned Judicial
Magistrate, 3rd Court, Malda.
And for this act of kindness, Your Petitioners, as in duty bound, shall
ever pray.

AFFIDAVIT
I, _____________________, _____ of ________________ and ________ of
__________________, aged about _____ years, by faith: Hindu, by
Occupation: ___________, resident of _______________________________ do
hereby solemnly affirm and say as follows:

1. That I am the ____________ of the Petitioners of the instant case,

and as such well acquainted with the facts and circumstances of the
instant case, I have been duly authorized by the Petitioners and also
competent to affirm this affidavit.

2. That the statements made in paragraphs ___________________ is

true to my knowledge and those are made in paragraphs
_______________________ are information derived from the records, which
I verily believed to be true and rests are my humble submissions
before this Hon’ble Court.

Deponent
Identified by me

Advocate

Solemnly affirmed before me

On this day of June, 2021

I, certify that all annexures

 37

are legible.

Advocate

DISTRICT: NORTH 24 PARGANAS

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
C.R.R. No. of 2022
In the matter of:
An application under Section 482 of the
Code of Criminal Procedure, 1973;
And
In the matter of:
Nirmal Majumdar & Anr..
….Petitioners
Versus
The State of West Bengal & Anr.
………..Opposite Parties

QUASHING
PETITION