DISTRICT:HOWRAH

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION

C.R.R. NO.

OF 2013

In the matter of :

An application under Section 428 of the Code Of Criminal Procedure for quashing The proceedings being Complaint Case 193 of 2012 under Section323/448/427/ 504/506/34 of the Indian Penal Code Before the court of the Learned J.M. 2nd Court at Tamluk ,Midnapore East.

-And

In the matter of :

Order dated dated 8thJanuary,2013 in the Above Complaint Case No. 193 of 2012

Passed by the learned 2nd Judicial 2

Judicial Magistrate (1st Class), Tamluk,Purba Midnapore.

And

In the matter of : Suresh Kumar Ghorawat, son of Sri Hanuman Mall Ghorawat of Flat No.2C,Block-9 of Howrah Vivek Vihar(Phase-V) at , 493/C/A,G.TRoad(S), Police Station-Shibpur,Howrah711 102.

1. Ashok Kumar Goel, son of Om PrakashGoel, of Flat No.2D,Block No. 2 at

Howrah Vivek Vihar (Phase-V) at 493/C/A, G.T.Road(South), PoliceStation-Shibpur,Howrah711 102. Petitioners -Versus1. State of West Bengal. 2. Badal Das, son of Late Hari Das of Village-Denan,Post Office-Amalhanda ,Police Station-Kolaghat District-East Midnapore. .Opposite Parties

To The Honble Mr.Arun Mishra ,Chief Justice and His Companion Justices Of the said Honble Court.

The humble petition of the petitioners Abovenamed-

Most Respectfully Sheweth:

1.

Your petitioners are peace loving and law-abiding citizens of India

And are the permanent residents of the addresses shown in the cause title With their respective families and are engaged in their avocations in Kolkata and Howrah districts.

2.

Your petitioner No. 1 is in service of a company Situate at 18,

R.N.Mukherjee Road, Kolkata-700 001 . Income Tax Return for the years 2011 and 2012 , PAN card are annexed herewith and Marked with the Letter P1.Your petitioner No. 2 is a business man doing business in Manufacturing of plastic products and his place of business is at Andul in Howrah .His trade licence, voter I.D.Card, Income Tax Return for the years 2011 and 2012 And PAN Card are annexed herewith and marked with the Letter P2.

Over and above the petitioner No. 1 is the Vice-President of Howrah Vivek Vihar (Phase-V) Welfare Association which is a registered Society under the West Bengal Societies Registration Act, 1961 and the petitioner no. 2 is the President thereof. The certificate issued by the authority is annexed herewith

and marked with the Letter P3.

3.Being attracted by the advertisements both the petitioners took possession their respective flats by executing and registering Deed of Lease . The said lease transactionThe Howrah Mills Co. Ltd. Is the Lessor/owner and the Promoter,Vivekananda Construction Company is the Confirming Party. Your petitioner crave leave to refer to the respective registered lease deed at the time of hearing of this petition. After such Transaction they have been permanently living there with their respective families.

4.That long standingdispute is going on between the Promoter plus Lessor and the said Welfare Association and several litigations are pending between The parties in the court of the Ld. 2nd Civil Judge(Junion Division),Howrah and 3rd Civil Judge (Senior Division),Howrah. Being aggrieved by and dissatisfied with the some Orders passed in the said suits the Said Association moved the Honble Court some Civil Revisions and the same were disposed of by the Honble High court at Kolkata.

5. The pending litigations in the said courts of Howrah District Court is given herein Below :

T.S. NO.28 Howrah Mills Co. LTD. Of 2011 & Vivekananda ConstrucTion CoPlaintiffs

Ld.2ndCivil Judge(Junior Divn)

Vs. Howrah Vivek Vihar (Phase-V)

Welfare Association & Ors. . Defendants

Pending for injunction hearing

T.S.No.44 Howrah Vivek Vihar(Phase-V) of 2009 Welfare Associationplaintiff & vs.

Ld.2nd Civil Judge(Jr.Divn)

T.S.No.285 Howrah Mills Co. Ltd.&Anr. Of 2012

same -

receiver & issue

T.S.No.11 0f 2012 Howrah Mills CO.Ltd. & Anr. Vs. Howrah Municipal Corporation & ORS. pending for party addition And other hearings 3rd Civil Judge(Sr.Divn),Howrah

Your petitioners crave leave to refer to the cause papers of the said suit at the time of hearing of this matter. Over and above in all these suits the Petitioner No. 1 being the Vice-President thereof and the Present General Secretary jointly and/or severally representing the said Welfare Association.

6.

Very recently in 2012 one of the Members,Sri Giriraj Kishore Jhawar

hasfiled a title suit being Title Suit No. 189 of 2012 in the said Court of the

learned 2nd Civil Judge (Jr. Divn.)

At Howrah against the said association and also in the personal names of the petitioner nos. 1 and 2 herein and recently the written statements on behalf of all the defendants have been filed when the matter is pending for ex parte argument. This suit has been filed by the said member arraying the petitioner Nos. 1 and 2 as the defendant nos. 2 and 3 therein describing their respective addresses at the said Vivek Vihar (Phase-V) Complex at 493/C/A, G.T.Road(south),Howrah-711 102 and also described them as the The present president and the vice-president respectively as arrayed therein. And the Suit is being contested by the present petitioners herein. Yours petitioners crave leave to refer to the copy of the plaint and written statement filed therein at the time of Hearing of this matter.

7. That immediately after taking possession of the respective flats the lessees found Many discrepancies , illegalities and loopholes and accordingly started giving several Representations to the competent authorities either individually and/or through their Association.

8.

Ultimately, after long persuasion the Howrah Municipal Corporation

issued stop work notice restraining the said Promoter and the Lessor to make any further constructions in the locale. A writ petition being W.P. No. 1544(W)

of 2011 challenging the Sanction of the second building plan by the said Howrah Municipal Corporation arraying the said Promoter and the Lessor as the party therein and the same is pending. Your petitioners crave leave to refer to a copy of the said writ petition at the time of hearing hereof.

9. At this juncture the petitioners herein received summons of one complaint Case no. 193 of 2012 pending in the court of the learned Chief Judicial Magistrate ,Tamluk,Purba Midnapore at their Howrah residential address as above and to their utter surprise and detriment found the same to be a Criminal Case filed by the Opposite Party NO.2 .

10.

Although they received the said summons with copy of the complaint at

their HowrahAddress as the same were sent to the said address whereas, to their utter surprise and detriment their address was given therein as living in Village Denan ,Post Office-Amalhanda,Police Station-Kolaghat,District-Purba Midnapore. The said purported complaint case was filed by the said Opposite Party No. 2 herein under Sections 323/448/427/504/506/34of the Indian Penal Code.

11.

It has been alleged in the said petition of complaint that the Opposite

Party No. 2 Herein and the petitioners herein are residing in the same premises but in separate rooms situated just side by side and since paucity of space at their said one room accommodation. 8

in the said village and for other alleged commission of offence as stated in the said petition altercation occurred and the petitioners herein committed the said offence.

12.

After being so served the petitioners had to take bail and thereafter

moved an application under Section 205 of the Code of Criminal Procedure for exemption of the Personal appearance as per the advice of the local Advocate appearing for them. In the said petition the petitioners elaborately narrated the entire fact and also their real place of abode and after giving hints of the Promoters oblique hand in filing the said Criminal case just to harass and humiliate the office bearers of the said Association through his paid man prayed for exemption of their personal appearance giving reasons therefor, but by the impugned order dated 8th January,2013 rejected the said just prayer without giving almost no viable ground at all and fixed 11.03.13 as the next date for appearance.Your petitioners have obtained certified copy containing The petition of complaint, Section 205 application and bunch of orders and same is annexed herewith and marked with the Letter P4.

13.

It is apparently clear that the said complaint case has been filed only to

harass,humiliate and malign the dignity of the office-bearers of the Association . Your petitioners are living at their respective Howrah addresses with their respective families and are attached with respective avocations as stated

herein above which has/have no nexus Either with the said village or with the complainant.

14.

It is further worthwhile to note that petitioners are well renowned

within the sphere of their residence and as such they were elected office bearers of the said Association As also in their respective avocations which also has got no nexus either with the said Complainant or with the said Village.

15. a

Over and above it is unbelievable that both the petitioners are living in

room In the said village and for the short space of their room they are indulging in criminal acts as alleged in the said alleged petition of complaint.

16.

That in the cause title of the petition of complaint it has been written

what petitioners being the accused persons therein are the residents of the said Village address whereas the whereas the summons thereof were sent to

the Howrah addresses of the petitioners herein.

17.

The petitioners, being the accused Nos. 1 and 2 therein had no occasion

to visit the Said village not to speak of living in a single room in the said village. From all angles the said Proceedings arising out of the criminal case being

10

complaint case No. 193 of 2012 fifled by the said complainant on or about 16th April, 2012 in the court of the learned Chief Judicial Magistrate which was subsequently transferred to the court of the learned 2nd Judicial Magistrate(1st class) at Tamluk is harassing, mala fide and malicious proceedings just to Harass, humiliate and malign the petitioners herein and such the same should be quashed.

18. Being aggrieved by and dissatisfied with the continuance of the said malicious ,harassing,And humiliating proceedings and the said order dated 8th January, 2013 by the said learned 2nd Judicial Magistrate at Tamluk,Purba Midnapore your petitioners beg to move this Honble Court on the following , amongst other:

Grounds

I are

For That the said malicious prosecution and the said impugned order Bad in law and liable to be quashed.

II as

For That the said Prosecution is mala fide and malicious are apparently Clear from the prima facie reading of the section 205 application and Such the same should be quashed.

III

For That the petitioners are permanent residents of Howrah 11

And as such their being resident of the said remote village in a small room And committing the offence as alleged is false , fabricated, harassing and Maligning and as such the proceedings arising out of the said petition of Complaint should be quashed .

IV For That the impugned order is a reflection of a complete nonapplication Of mind and has been passed without assigning any ground and the Discretion excercised by the said learned court is also worth of any merit And as such the same should be set aside.

19.

That your petitioners are filing this application to prevent gross abuse of

Process of law .

20.

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

In the circumstances it is prayed that Your Lordships Would graciously be please to Admit the petition and Issue a rule calling Upon the opposite parties to show Cause asto why the proceedings arising out Of Complaint Case No. 193 of 2012 should Not be quashed And after having considered The causes shown if any make the rule abso12

Lute and pass such other or further order or Orders asto this Honble Court may deed fit And proper

And

Pending disposal of this petition it Is also prayed that Your Lordships Would be pleased to pass an Interim order of stay of all Further proceedings in Criminal case No.193 of 2012 Pending in the court of the

Ld. 2nd Judicial Magistrate, Tamluk,Purba Midnapore.

And your petitioners, as in duty bound, shall ever pray

12

Affidavit

I,SURESH KUMAR GHORAWAT, son of Sri Hanuman Mal Ghorawat, aged about 47 years, by Caste Hindu, by Occupation-Service of Flat No. 2C. ,Block-9 of HowrahVivek VIhar (Phase-V) at 493/C/A, G.T. Road(south), Post Office and Police StationShibpur, Howrah-711 102 , do hereby solemnly affirm and state as follows :

1.

That I am the petitioner No. 1 herein and as such well acquainted with the Facts and circumstances of this case and I am otherwise authorised and competent To make and affirm this affidavit for myself and also for and on

2. That the statements made in paragraphs 1 to 16 and 18 ,19 and 20 Of the foregoing petition are true to my knowledge and those made inparagraph 17 thereof are my humble submissions to this Honble Court.

Prepared in my office

Deponent is known to me

Advocate

Clerk to Advocate

Solemnly affirmed before me on Day of March, 2013

COMMISSIONER

DISTRICT:HOWRAH IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION C.R.R. NO. In the matter of : An application under Section 482 of the Code of CRIMINAL Procedure; And In the matter of : SURESH KUMAR GHORAWAT & ANR. -VERSUSSTATE OF WEST BENGAL & ANR. OF 2013

A p p li c a t I o n

MR.SUPRIYA CHATTERJEE
ADVOCATE, 9,OLD POST OFFICE STREET, 1ST. FLOOR,KOLKATA-700001.