- (1.) In this application the petitioner prays quashing of the proceeding being GR Case No. 1507 of 2012 arising out of Arambag Police Station Case No. 720 of 2012 dated 14th August, 2012 under Sections 448/328/376(2)(g)/379/195A of the India Penal Code (for short IPC) presently pending before the Ld. Additional Chief Judicial Magistrate (for short ACJM), Arambag. The petitioner also challenges order no. 20 dated 17th January, 2013 by which the Ld. ACJM was pleased to issue a warrant of arrest against the petitioner.
(2.) The brief facts of the case are as follows:- a) That one Smt. Rakhi Panja, wife of one Soumen Panja lodged a complaint with the Inspector-in-Charge (for short IC) Arambagh Police Station stating, inter alia, that she, along with her husband, who is an employee of the Health Department of the Government of West Bengal and posted at village - Natibpur, P.S. Khanakul, Dist. - Hooghly are residing in a rented house. There were introduced to two young men by the name of Arijit Adhikari and Raghunath Bera. A friendship developed between the two men and the couple. b) According to the complainant on 28th July, 2012 at about 1 pm the two persons came to her house when her husband was absent. The said two persons took tea from the complainant. When the complainant came to the kitchen for preparing tea, the said Arijit Adhikari along with the said Raghunath Bera pressed the mouth of the complainant with a handkerchief because of which the complainant become unconscious. Thereafter the two persons committed rape upon the complainant and took away two gold ear rings along with Rs. 1 (one) lakh. When the husband of the complainant returned home she narrated the incident to him after which a formal, FIR was filed. c) That on the basis of the said FIR, Arambagh P.S. Case No. 720 of 2012 dated 14th October, 2012 being GR Case No. 1507 of 2012 under Sections 448/328/376(2)(g)/379 IPC was started. The present petitioner, one Ganesh Adhikari is the father of one of the accused namely, Arijit Adhikari. d) That the said Arijit Adhikari was arrested but subsequently granted bail by the Hon'ble Division Bench of this Court. Charge sheet was submitted on 31st December, 2012 under Sections 448/328/376(2)(g)/379/195A IPC against the son of the present petitioner, one Raghunath Bera and also the present petitioner. According to the petitioner, he is not the FIR named accused. The charge sheet was submitted against the petitioner on the charge that the petitioner threatened the complainant to withdraw the complaint. On 17th January, 2013 the Ld. ACJM took cognizance and issued warrant against the petitioner. e) The petitioner has contended that the sole allegation against him is that he threatened the complainant to withdraw the case. Therefore, the petitioner has been charged with committing the offence under Section 195A IPC only. The petitioner is also the Secretary of the Arambagh Zonal Committee of the Communist Party of India (Marxist) "CPI(M)" and he contends that out of political grudge he has been falsely implicated in the present case. f) It is also the case of the petitioner that the alleged incident took place on 28th July, 2012 and the written complaint was lodged after a delay of two and half months on 14th October, 2012. Prior to lodging the complaint on 28th July, 2012, the son of the petitioner, the said Arijit Adhikari had lodged a complaint against the complainant on 15th July, 2012 stating, inter alia, that the complainant teased him over the mobile. In respect of the said complaint on 15th July, 2012 a General Diary (for short GD) was recorded being Arambagh P.S. GD No. 1238 dated 15th July, 2012. g) It is the further case of the petitioner that the husband of the complainant is a pathologist and although the complainant narrated the incident on 28th July, 2012 to her husband on the same date, the complainant was neither examined nor treated by any doctor. h) It is also the case of the petitioner that the present Opposite Party 2 (for short OP2), who is the complainant, has already filed an application for mutual divorce under Section 13B of the Hindu Marriage Act before the Ld. Additional District Judge, Arambagh seeking mutual divorce from her husband and the same has been registered as MAT Suit No. 122 of 2012. i) The petitioner has therefore alleged that he has been falsely implicated in the charge sheet although he is not in any way connected to the incident dated 28th July, 2012 and is not an FIR named accused. The petitioner also complains of violation of due process in as much as no notice was issued to him by the Investigating Officer (for short IO) under Section 41A of the Code of Criminal Procedure. The petitioner has stated that the non-fulfilment of the provisions of Section 41A CrPC is a violation of statutory due process. According to the petitioner, the IO could not have prayed for a warrant of arrest against the complainant without complying with Section 41A CrPC and the Ld. Magistrate failed to apply judicial mind to such infraction and thereby wrongly took cognizance and issued warrant of arrest. j) It is the further case of the petitioner that assuming but not admitting that the contents of the charge sheet are correct, no offence can be said to be made out against him under Section 195A IPC. Having regard to the further fact that the criminal proceedings instituted against him are borne out of political grudge, the present complaint is vexatious and, by filing the present CRR 501 of 2013 the petitioner prays for quashing of the same.
(3.) Shri Uday Sankar Chattopadhyay, Ld. Counsel appearing for the petitioner takes this Court to the provisions of Section 195A IPC. Section 195A IPC read as follows:- "Threatening or inducing any person to give false evidence. Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with same extent such innocent person is punished and sentenced.";