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Dr. Utpal Barman v/s State of West Bengal

    Writ Petition No. 12323 (W) of 2005

    Decided On, 07 July 2005

    At, High Court of Judicature at Calcutta


    For the Appellant: Kamalesh Bhattacharjee, Rajib Mohan Chatterjee, Advocates. For the Respondent: R3, R4, Ranjit Kumar Ghosh, Supriya Roy Chowdhury, Advocates.

Judgment Text

Jayanta Kumar Biswas, J.

1. The Petitioner in this writ petition wants me to quash the F.I.R. on the basis whereof Behala P.S. Case No. 329 of 2004 was registered under Sections 420/406/120B of the Indian Penal Code, 1860.

2. Facts of the case are these. The third Respondent (Sakar Nirman Pvt. Ltd.) is a promoter within the meaning of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. The Petitioner agreed to purchase a flat in the building constructed by the third Respondent on the land owned by the persons, who are the other accused persons named in the F.I.R.

3. Certain disputes arose between the thi

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rd Respondent and the purchasers of the flats in the building. An association of the flat owners submitted a complaint requesting the authorised officer under the Act to prosecute the third Respondent.

4. Alleging inaction on the part of the authorised officer, the association moved a writ petition before this Court, which was disposed of by order dated July 17, 2003 directing the authorised officer to give the appropriate decision regarding the complaint.

5. Accordingly, the authorised officer gave his decision dated September 1, 2003 ordering the third Respondent to take immediate steps for removing the defects in the construction of the building and for completing the other works in terms of the agreements. He also ordered that moneys due to the third Respondent, if any, should be paid by the respective parties in terms of the agreements.

6. Feeling aggrieved by the order of the authorised officer, the association moved a fresh writ petition in this Court and by order dated November 6, 2003 it was admitted. An interim order was made staying the operation of the order of the authorised officer till the disposal of the writ petition. Advocate for the Petitioner informs me that that writ petition is pending decision.

7. The third Respondent then moved a petition of complaint before the Sub-divisional Judicial Magistrate at Alipore. The Petitioner was the first accused person named in that petition. The six other accused persons named in that petition of complaint, I am told, were the owners of the land on which the building was constructed.

8. Considering the petition of complaint, the magistrate passed an order dated April 26, 2004 directing the officer-in-charge of the police station concerned to treat the petition of complaint as an F.I.R. and to make investigation. Accordingly, the abovenoted Behala P.S. case was registered.

9. After completing investigation, the investigating officer submitted the charge-sheet dated October 31, 2004. He stated that case was made out against all the seven accused persons named in the petition of complaint under Setions 420/406/120B of the Indian Penal Code, 1860. What happened thereafter is not known to the Petitioner, this is how his advocate responded, when I wanted to know whether cognizance has been taken by the magistrate.

10. In course of argument, advocate for the Petitioner submits that he wants me to quash not only the F.I.R., but also the charge-sheet. His contention is that allegations made in the petition of complaint did not make out any case of commission of any offence by the Petitioner and hence the F.I.R. should be quashed.

11. I am unable to agree with him that at this stage there is scope to interfere with the F.I.R. Merits of the allegations made in the petition of complaint were. by the Sub-Divisional. Magistrate who passed the requisite order directing investigation. On the basis of the F.I.R. investigation has been made and the investigating officer has submitted charge-sheet. On these admitted facts, I do not find any reason why I should examine the merits of the allegations made in the petition of complaint for upsetting the order of the competent magistrate and the conclusion of the investigating officer.

12. Advocate submits that the prosecution launched is not permissible in law and hence I should quash both the F.I.R. and the charge-sheet. In support of his argument that even before charges are framed by the magistrate, the Petitioner is entitled to approach the writ court for relief, he refers me to the apex court decision in State of West Bengal and another Vs. Mohammed Khalid and others, and a division bench decision of this Court in State of Wet Bengal and Ors. v. Sushanta Kr. Saha 2003 (1) CHN 575.

13. I do not wish to go to the extent of saying that before framing of charges by the magistrate, in no case an accused person can approach the writ court with a prayer that the criminal case should be quashed. The position of law, as I understand, is that once the charge-sheet is filed, the writ court should not examine whether allegations made in the petition of complaint or in the F.I.R. did make out any case of commission of offence under the provisions mentioned in the charge-sheet and the matter should be left for examination by the competent criminal court. At such stage all the materials accompanying the charge-sheet are to be examined for deciding whether cognizance is to be taken. Undertaking this exercise by the writ court, to my mind, is nothing short of usurption of powers of the judicial magistrate by the writ court.

14. Advocates for the Respondents have given me several judgments in support of their contention that the writ court should not interfere. I think, I shall not be thought of unappreciative of their argument for not dealing with them. I am not doing so for the sake of brevity and also for the reason that there is no dispute regarding the propositions of law they point out.

15. Advocate for the Petitioner asks me to consider the effect of the order dated November 6, 2003 made by this Court in the pending writ petition. He says that since the Petitioners were not liable to pay during pendency of that writ petition, as interim relief staying operation of order of the authorised officer had been granted, alleging nonpayment and commission of offences of cheating, criminal breach of trust and criminal conspiracy, the third Respondent was not entitled to institute the criminal case.

16. From the orders of the authorised officer and of this Court made in the pending writ petition on November 6, 2003. I do not find anything that prevented the third Respondent from instituting a criminal case against the Petitioner and the owners of the land. By them, the Petitioner was not permitted not to pay and the prosecution for offences, if any, already or subsequently committed, was not directed to be kept in abeyance.

17. For these reasons do not find any merits in the writ petition; it is, accordingly, dismissed. There shall be no order for costs in it.

18. Urgent certified xerox copy of this order shall be supplied to the parties, if applied for.