MD SALAUDDIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS petition under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for the sake of brevity) has been filed by the petitioners praying for quashment of the proceedings being C.G.R. Case No.1050 of 2006 arising out of Ekbalpore P.S. Case No.105 dated 03.05.2006 under Sections 447/448/504/506(b)/34 of the Indian Penal Code pending before the Court of Learned Chief Judicial Magistrate, Alipore, South 24 -Parganas.

(2.) AS per prosecution, the de -facto complainant Kamar Alam Shami lodged a written complaint before the O.C., Ekbalpore P.S. to the effect that they are the Flat owners of 'Aashiana' situated at premises No.35, Dent Mission Road, Kolkata -70023 and they have formed a society under the name and style 'Kidderpore Aashiana Society'. The promoter of the said apartment Md.Salauddin along with his associates have been harassing them for a long time in various ways. The said society has taken over the maintenance of the apartment and it has filed a Civil Suit against Md. Salauddin in the Court of the District Judge, Alipore and in that suit an order for maintaining status quo in respect of the maintenance of the suit property and the common area of the premises was passed.

(3.) MR . Milon Mukherjee, Learned Counsel appearing on behalf of the petitioners, argued that the facts stated in the F.I.R. and statements recorded under Section 161 Cr.P.C., even if it is accepted as it is, do not constitute offence under Sections 447/448/506 IPC. He further contended that the Kidderpore Aashiana Society and another tenant filed Civil Suit in the Court of Learned Civil Judge (Junior Division), Alipore but failed to obtain any order of injunction from that Court or from the Appellate Court and thereafter lodged the instant false complaint to implicate the present petitioners to fulfil their oblique desire to avoid payment of outstanding amount of maintenance charges to the petitioner. He submitted further that the present complainant in collusion with statutory authorities had filed one after another such false criminal cases which have been quashed by this Court. According to him there is no essence of truth within the four corners of the complaint which has been filed only to avoid payment of the lawful dues to the petitioners by the complainant. He continued to contend that since the petitioners are the owners of the premises there cannot be any question of trespass and therefore there was no cognizable offence committed by the petitioners. That being so the remaining offence alleged to have been committed is punishable under Section 506 of the IPC which is non cognizable. As such the police is not empowered to conduct investigation without an order of a Magistrate as laid down under Section 155(2) of the Cr.P.C. Thus the proceedings is liable to be quashed on that ground alone. It was his further contention that the allegation made in the FIR are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Therefore, according to him, the essential ingredients of the offence of criminal trespass or house trespass or criminal intimidation as defined under Sections 447/448/506 of the IPC are not made out and the institution of the criminal proceedings and also the perfunctory investigation are abuse of process of law and thus, the proceeding is liable to be quashed.