- (1.) THIS revisional application is for quashing of the proceeding being G.R. Case No. 1000 of 2005 which arose out of Ausgram Police Station Case No. 107 of 2005 dated 18th July, 2005 under Section 376 of Indian Penal Code.
(2.) BRIEF background of the matter is as follows : Mumtaz Khatun, opposite party No. 2, lodged a petition of complaint before the learned Chief Judicial Magistrate, Burdwan on 17th May, 2005 stating that while she was proceeding to purchase medicine for her mother, she was obstructed by the petitioner, Sk. Abdul Nazim @ Badsa and asked her to go with him. Being frightened by the threatening of the petitioner, she went with him at Sibbagar where the petitioner raped her. The learned Chief Judicial Magistrate, Burdwan, sent the said complaint to the Officer-in- Charge of the Ausgram Police Station for investigation. On receipt of the complaint, the Ausgram Police Station started Ausgram Police Station Case No. 107 of 2005 dated 18th July 2005 under Section 376 of Indian Penal Code. The petitioner has come before this Court with a prayer for quashing of that case. Learned Counsel for the petitioner has contended that it has been alleged by the opposite party No. 2 that the incident took place on 5th December, 2004 but the petition under Section 156(3) of the Code of Criminal Procedure was submitted before the learned Chief Judicial Magistrate on 7th May, 2005, that is, after a lapse of five months. The delay in filing the petition of complaint, before the learned Chief Judicial Magistrate, Burdwan, has not been explained in the body of the petition under Section 156 (3) of the Code of Criminal Procedure. Prior to the submission of the petition under Section 156 (3) of the Code of Criminal Procedure by the opposite party No. 2 before the learned Chief Judicial Magistrate, the opposite party No. 2 lodged another complaint dated 5th October, 2004 and on the basis of that complaint Ausgram Police Station Case No. 77 of 2004 dated 5th October, 2004 was started. On the basis of that case, accused faced trial in connection with Sessions Trial Case No. 152 of 2005 under Section 376/ 313/417 of the Indian Penal Code. That case has ended in acquittal. It has been further contended that at the time of giving deposition before the learned Sessions Judge, the opposite party No. 2 had not stated anything about the incident of 5th December, 2004. She gave such deposition before the learned Sessions Judge on 6th September, 2005. He has also contended that the allegations made in the petition under Section 156(3) of the Code of Criminal Procedure is inherently improbable because of the fact that the petitioner was released on bail in connection with the earlier case, that is, Ausgram Police Station Case No. 74 of 2004 dated 5th October, 2004 and the said incident alleged to have taken place within ten days from the date of release on bail from judicial custody. To give a stand to his contention, learned Counsel for the petitioner has relied on a decision reported in AIR 1992 SC 604 (State of Haryana & Ors v. Bhajan Lai & Ors.) wherein the Hon'ble Apex Court has observed that when 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, the Court may exercise its power for quashing the proceeding. He further contended that the allegation, made in the F.I.R./complaint, is absurd and inherently improbable. The proceeding pending before the learned Chief Judicial Magistrate, Burdwan may be quashed.
(3.) LEARNED Counsel for the State, Mr. Mullick, has produced the case diary of the proceeding. He has contended that the statement of the victim girl, under Section 164 of the Code of Criminal Procedure, has been recorded. She has been examined by a doctor. There is specific allegation against the petitioner that he has committed rape on the opposite party No. 2 and under such circumstances, the Court may not exercise its power of revision for quashing the proceeding pending before the learned Chief Judicial Magistrate, Burdwan. It is interesting to note that the petitioner had faced a similar offence earlier and got an order of acquittal. It is also interesting to note that instead of going to the police station just after the alleged incident on 5th December, 2004, the opposite party, Mumtaz Khatun, found it fit to file a petition under Section 156(3) of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Burdwan. It is not clear as to why she took such course instead of taking shelter of the police station by lodging an F.I.R. On perusal of the record it appears further that the petition, under Section 156(3) of the Code of Criminal Procedure, was submitted by the opposite party No. 1 before the learned Chief Judicial Magistrate after a lapse of about five months. It is more interesting to note that Ausgram Police Station has registered the case on 18th July, 2005 and in the process of registration of the case another two months had been covered. The victim was examined by a doctor thereafter. Papers which are placed before me indicate that the victim was aged about 20 years at that point of time. It has been alleged in the petition under Section 156(3) of the Code of Criminal Procedure that she was lifted by the petitioner and taken to the place of occurrence by a scooter. It is, therefore, coming in the mind of the Court that if the opposite party No. 2 was not a consenting one then she could not have been taken to the place of occurrence. Anyway, this Court is not going to the merit in this respect. The delay of five months in lodging the F.I.R. has not been explained. It seems to this Court that the accused has been tagged in a similar case which he had faced at the instance of the opposite party in the past.;