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        IN THE HIGH COURT OF ORISSA: CUTTACK
                     (Criminal Miscellaneous Jurisdiction)

                             CRLMC No.           /2007


In the matter of:
                           An    application   under   Section   482   of    Criminal
                           Procedure Code, 1973.



                                        AND

In the matter of:
                    1.     Mala Roy, aged 56 years, W/o Late Abhijit Roy.

                    2.     Indrajit Roy, aged 31 years, S/o Late Abhijit Roy.

                    3.     Premjit Roy, aged 28 years, S/o Late Abhijit Roy.

                           (all are of 192-D, Netaji Subhas Chandra Bose
                           Road, Kolkata-40)
                                                                 ………. Petitioners.

                                       Versus


                    1.     State of Orissa.

                    2.     Seema Roy, aged 53 years, 192-D, Netaji Subhas
                           Chandra Boase Road, Kolkata-40. At present residing
                           at 2528, New York City, New York-10163, USA.
                                                                 ……. Opp. Parties.


            The matter out of which this CRLMC arises was never before this
            Hon’ble Court in the present form as per the instruction of the
            petitioners.



To
            The Hon’ble Sri Ashok Kumar Ganguly, M.A.LL.B., The Chief
            justice and         His Lordship’s other companion Justices of the
            Hon’ble High Court of Orissa.
                                                                     Page 2 of 15




                                                The humble petition of the
                                                above-named petitioners;

MOST RESPECTFULLY SHEWETH:

1.   That the petitioners in this case invoked the jurisdiction of this Hon’ble

     Court under Section 482 of the Cr.P.C. praying therein to quash the

     proceeding/investigation, vide Capital Police Station Case No.70 (18)

     dt.15.2.2007 on the ground that the same is clearly an abuse of process

     of law and the O.P. no.2 who does not have any fixed whereabouts is all

     out to harass the petitioners by filing cases in different Courts of law,

     both Civil and Criminal, on the very same case on action, allegedly the

     grant of mining lease in favour of the petitioners by the State of Orissa,

     the details of which are enumerated hereunder.



2.   That the O.P. no.2, claiming to be the wife of Late Bikramjit Roy, who is

     the brother of the late husband of petitioner no.1 filed a complaint case,

     i.e. ICC No.477/2007 before the learned S.D.J.M., Bhubaneswar alleging

     offences under Sections 403/406/420/468/471/506 and 120-B of the

     I.P.C. to have been committed by the petitioners.



     The allegations in the complaint are that she resides in USA and her

     husband is the brother of the husband of the petitioner no.1.



     The brothers ere having a mining lease of 450 acres granted in their

     favour by the State in village Jalahuri, Bansapani, Khandabandha,

     Baitarani R.F.-II in the district of Keonjhar. Since her husband was

     staying in USA he authorized his brother, i.e., the husband of petitioner-

     1 to look after the mines. However, her husband expired on 20th June,

     1987 for which she being the legal heir stepped into the shoes of her

     husband and thereafter, she filed an application on 12th May, 1992 along

     with the husband of the petitioner no.1 for renewal of the mining lease.
                                                                     Page 3 of 15




3.   That the complaint further depicts that since the complainant/O.P. no.2

     was staying in USA the husband of the petitioner-1 persuaded her to give

     authorization in his favour for looking after the mining activities as well

     as to deal with the State Government as and when required and believing

     the above said assurances, it is alleged that the complainant /O.P. no.2

     authorized the husband of petitioner no.1 to look after the said mines

     and to do all necessary acts.



     It is pertinent to mention here that the O.P. no.2 alleged that after

     authorization the husband of the petitioner no.1 filed the renewal

     application on 12th May, 1992 before the Government of Orissa and this

     allegation is directly against the fact which the complainant/O.P. no.2

     has narrated in paragraph-8(2) of the complaint.



     It is further alleged that on the renewal application being submitted to

     the State Government, temporary working permission was issued in

     favour of the husband of the petitioner no.1 to operate the mines and in

     the   process   took   away     minerals   without   giving   anything   to

     complainant/O.P. no.2.



4.   That it is further alleged that petitioner no.1 along with her husband

     conspired and filed all false documents before the Government of Orissa

     to make out a case that the complainant/O.P. no.2 is not available nor

     she is traceable. It is further alleged that the petitioner no.1 along with

     her husband persuaded the Government authorities, including filing of

     an affidavit before the State Authorities that the share of the

     complainant/O.P. no.2 in the mining property be allowed in his name

     and in the event complainant/O.P. no.2 makes a claim the husband of

     the petitioner no.1 would indemnify her.
                                                                                Page 4 of 15




5.   That it is further alleged that during pendency of the renewal application

     the husband of the petitioner no.1 died on 31st January, 1997 and the

     petitioner being his legal representative stepped into his shoes and by

     applying all illegal and fraudulent means got the mining lease allowed in

     their name. It is further alleged that while granting the said mining lease

     a   condition    was    imposed       to     the   extent    that    whenever      the

     complainant/O.P. no.2 would claim 50% share in the mining property

     she would be getting the same and the petitioners shall also return 50%

     of the income out of the said mining lease from the date of renewal, i.e.,

     1993.



6.   That    the   O.P.   no.2   further    alleged     that     the    accused   persons

     impersonated     themselves and hatched out a criminal conspiracy to

     commit    several    criminal    and       unlawful   activities    to   deprive   the

     complainant/O.P. no.2 of her share in the mining lease. The allegations

     further reveal that the O.P. no.2, of late, came to know that the

     petitioners have opened various bank accounts in her name by utilizing

     forged and fictitious documents so that during the time of transfer of her

     share it could be established that the petitioners have paid sufficient

     money.



7.   That the complaint further disclosed that the O.P. no.2 lodged an FIR

     with Hare Street Police Station in Kolkata and PS Case No.404/2006 of

     Hare Street Police Station was registered and pursuant to such FIR the

     petitioner no.1 was arrested on 19.1.2007 and she was remanded to

     police custody till 29.1.2007.



8.   That the O.P. no.2 further alleged that in the account in State Bank of

     India, Barbil Branch, which stands in the name of complainant huge
                                                                     Page 5 of 15




     amount amounting to crores of rupees was transacted and siphoned of to

     different other accounts by use of illegal means. She also alleged that the

     petitioners have entered into some illegal agreement with one M/s Sesa

     Goa Ltd. in the name of complainant/O.P. no.2 and have made huge

     transactions to put criminal liability on the complainant/O.P. no.2 and

     in the process the petitioners have amassed huge amount of money from

     the said company in the name of O.P. no.2. Her allegation further goes to

     show that accused/petitioners have made transactions in Allahbad

     Bank, HSBC Bank, Delhousie Branch, Kolkata and if the petitioners

     account are checked it would establish the criminal activities of the

     accused/petitioners.



9.   That the complainant further depicts that the complainant/O.P. no.2

     tried to contact the accused/petitioners to enquire about the bank

     account to which the petitioner no.1 threatened the complainant to take

     away her life if she does not remain silent. It is further alleged that the

     accused/petitioner no.1 is a most powerful lady in Kolkata knowing

     every influential persons in power. It is alleged that there is none behind

     her to give her protection to her life and further she threatened the O.P.

     no.2 to the extent that she has taken all steps to see that the

     complainant/O.P. no.2 does not reach Bhubaneswar enabling her to

     lodge complaint before the mining authority concerning the mining lease.

     Besides, it is further alleged that the petitioner no.1 threatened the O.P.

     no.1 to withdraw all cases and complaints filed by her in Orissa failing

     which she would kill her.       The allegation further shows that the

     petitioner no.1 has further threatened O.P. no.2 to kill her by road

     accident if at all she desires to go to Champua and hence apprehending

     danger to her life she filed the aforesaid complaint before the learned

     S.D.J.M., Bhubaneswar on 29.1.12007, which was registered as ICC
                                                                         Page 6 of 15




      No.477/2007. A copy of the aforesaid complaint is annexed herewith as

      ANNEXURE-1.



10.   That though the complaint is filed on 29.1.2007, on 19.1.2007 the

      learned S.D.J.M., Bhubaneswar passed an order directing the I.I.C.,

      Capital Police Station under Section 156(3) of the Cr.P.C. to register a

      case and investigate into the allegations contained in the complaint.

      Pursuant to the order dt.19.1.2007, the complaint was forwarded to the

      I.I.C., Capital PS who received the complaint on 15.2.2007 and registered

      PS Case No.70/2007 and directed investigation by the O.I.C.



11.   That it is humbly submitted that the complaint, taken in its entirety,

      does not reveal any offence to have been committed within the

      jurisdiction of either the learned S.D.J.M., Bhubaneswar or the I.I.C.,

      Capital PS. The complaint does not whisper commission of any offence in

      the Orissa Mining Corporation, Bhubaneswar whereas the place of

      occurrence reflected in the FIR is OMC, Bhubaneswar. It is further

      humbly submitted that the allegations revealed by the O.P. No.2 projects

      difference between two branches of a family with regard to a mining

      lease, without having any blend of any criminal liability.



12.   That the petitioners humbly submit that in the recent judgment of the

      Hon’ble Apex Court in the case of M/s Indian Oil Corporation Vs. NEPC

      India & others, the Hon’ble Supreme Court of India has laid down the

      principles regarding quashing of complaints and criminal proceedings

      under Section 482 of the Cr.P.C. The principles deduced by Hon’ble Apex

      Court are hereunder:

         i)    The   complaint    can   be   quashed     where     the
               allegations made in the complaint, even if they are
               taken on their face value and accepted in their
                                                                            Page 7 of 15




               entirety, do not prima facie constitute any offence
               or make out the case alleged against the accused.



               For this purpose, the complaint has to be examined
               as a whole, but without examining the merits of the
               allegation. Neither the detailed enquiry nor a
               meticulous   analysis    of   the    material    nor    an
               assessment of the reliability or genuineness of the
               allegations in the complaint is warranted while
               examining prayer for quashing of a complaint.


         ii)   A complaint may also be quashed where it is clear
               abuse of process of court, as when the criminal
               proceeding is found to have been initiated with
               malfide/malice have wrecking vengeance or to
               cause harm, or where the allegations are absurd
               and inherently improbable.
      The Hon’ble Apex Court reiterated the view taken by it earlier in the case

      of State of Haryana vs. Bhajanlal reported in AIR 1992 SC 503.



13.   That therefore, in the instant case it has to be seen as to whether the

      complaint makes out a case against the petitioners and further whether

      the initiation of the criminal proceedings against the petitioners is

      nothing but abuse of process of court.



14.   That is worthwhile to make a mention here that the O.P. no.2, in the

      complaint;   has   given   her   address     at   New    York,   Ashok    Nagar,

      Bhubaneswar and Netaji Subhash Chandra Bose Road, Kolkata, whereas

      in the FIR lodged before the Lal Bazar PS, Kolkata she has given her

      address at 7783, Kingshaw, Drive, Buttler County, Ohio. The allegations

      regarding forgery and opening of bank account in her name by the

      petitioners made in the present complaint were also alleged in the FIR

      lodged by her on 3rd November, 2006 before the Lal Bazar PS, Kolkata. A

      copy of the FIR lodged before the Lal Bazar PS, Kolkata is annexed
                                                                        Page 8 of 15




      herewith as ANNEXURE-2. In the matter concerning the aforesaid FIR in

      Kolkata the petitioner no.1 was taken into custody and subsequently

      enlarged on bail on 7.2.2007 and the present complaint is allegedly filed

      on 29.1.2007.



      The petitioners humbly submit that when the alleged offence is said to

      have been committed in Kolkata, under no circumstances with almost

      self same allegations, complaint could be filed before the learned

      S.D.J.M., Bhubaneswar. Lodging of FIR/filing of complaint in different

      places by the O.P. no.2 reflects here intention to put the petitioners into

      mental harassment and the above endeavour of the said O.P. no.2 is

      aimed at paralyzing the efforts of the petitioners to run the mines with

      the intention to take it over through her allies like Prakash Industries

      who are backing her up to fight out this frivolous litigation against the

      petitioners.



15.   That it is pertinent to mention her that O.P. no.2, who claims to be the

      wife of late Bikramjit Roy bases her entire claim on an alleged will

      executed by her late husband, which according to O.P. no.2 was allegedly

      probated from the Court of Common Peoples                  Division-Buttler

      Country, Ohio, USA. However, the Hon’ble Kolkata High Court in probate

      proceeding being PLA No.85/98, vide order dt.28.6.04 held as follows:-

                     “The central issue before us in the present
                     appeal revolves around the question as to the
                     manner in which the probate of will was
                     obtained not only from this Hon’ble Court but
                     also from County Court of Hamlton, Ohio, USA.

                     Though the copy of the original will was not
                     annexed to the application for extension of
                     probate filed before this Hon’ble Court, an
                     authenticated will was sought to be produced
                     before this Hon’ble Court together with all
                     relevant documents. Upon examination of the
                     said documents it is apparent in the application
                     that was filed before the County Court, Ohio,
                     USA the appellant had not disclosed the names
                                                                 Page 9 of 15




            of the next of kin as was required to be done in
            accordance     with    the   prescribed   format.
            Therefore, it appears that there has been a gross
            suppression of material facts while obtaining the
            probate from the County Court of Ohio.

            The application for probate before the Country
            Court of Ohio was filed on 14th June, 1988. The
            appellant also filed an affidavit on the said date
            stating that she is the sole survivor of the
            deceased. On the same date an entry was made
            admitting the will and probate was granted. It is
            admitted position when the order dt.16th
            February, 1990 was passed by granting probate,
            during    the    application    for   Letters   of
            Administration as application for grant of
            probate, no citation was issued to any of the
            respondents.

            It is also submitted on behalf of the appellant
            the will was proved in accordance with the
            relevant laws of County Courts of Ohio and that
            in accordance with the relevant laws of the said
            Court, there was no necessity but to disclose the
            names of the next of kin when under will the
            appellant was the only beneficiary. In fact time
            was taken from us to show what the relevant law
            in Ohio is at the time of the probate was
            granted, but unfortunately in spite of repeated
            opportunities given by us, no law was produced
            before us.

            In the instant case, the initial order granting
            Letters of Administration was recalled and a
            probate was granted. It is needless to mention
            here that before grant of probate proper citation
            is required to be given to the legal heirs in
            accordance with the prescribed procedure. There
            is little room to doubt that the probate obtained
            from County Court of Ohio was obtained upon
            suppression of material facts. Further the
            manner in which the probate has been obtained
            also clearly indicate that the will has not been
            proved either in sales form or in common form.”

Therefore, from the above findings of Hon’ble High Court of Kolkata it

becomes abundantly clear that the alleged probate obtained from Ohio

Court was so obtained by perpetration of fraud and concealment of the

fact that there are three children of late Bikramjit Roy and therefore, the

Court in Ohio granted probate without giving any notice to the children

of late Bikramjit Roy. It is further humbly stated that after obtaining the

alleged probate by perpetrating fraud on Ohio Court the O.P. no.2, by
                                                                        Page 10 of 15




      perpetrating the similar sort of fraud on the Hon’ble Kolkata High Court,

      by concealing the fact that the late Bikramjit Roy had three children,

      obtained probate in her favour which was later recalled on the

      application of the three children of late Bikramjit Roy, vide order

      dt.12.7.2000 passed by the Hon’ble Kolkata High Court which was

      upheld by the appeal court vide order dt.28.6.2004.



      After perpetrating fraud on the Courts at Ohio and the Hon’ble High

      Court of Kolkata the O.P. no.2 by perpetrating similar kind of fraud filed

      civil suit no.61/06 before the learned Civil Judge (Sr. Division) champua,

      praying therein for a decree to allot 50% share in her favour in regard to

      the mining lease and rendition of account. A copy of the complaint in CS

      no.61/06 is annexed herewith as ANENXURE-3.



      Petitioners humbly submit that the contents of Annexures 1 and 2 taken

      together are almost identical to the contents of Annexure-3, which

      therefore clearly established that the O.P. no.2 is not only in the habit of

      perpetrating fraud on various Courts but also his hell bent to harass the

      petitioners by filing litigations in various courts to cramp activities of the

      petitioners with the help of aforesaid Prakash Industries.



16.   That the petitioners further humbly submit that in the civil suit filed

      before the learned Civil Judge (Sr. Division), Champua the O.P. no.2 has

      shown her address 2528 New York City, USA which clearly shows that

      the O.P. no.2 is not even disclosing her address of her present residence

      and at different time she is providing different addresses to suit her

      cause.

17.   That the petitioners further humbly states that the mining lease was

      renewed by the State Government, vide order dt.11.6.1999 in favour of
                                                                     Page 11 of 15




      the petitioners and while renewing the said mining lease the Government

      of Orissa imposed certain conditions, one of which is quoted hereunder:

                   “when Smt. Seema Roy will claim right over the
                   lease of her husband in future with necessary
                   documents, then she will be given due share of
                   the mining lease.”

      Copy of the renewal order dt.11.6.1999 is annexed herewith as

      ANNEXURE-4.



18.   That against the order of renewal of mining lease dt.11.6.1999 the

      opposite party no.2 filed a revision before the Central Government.

19.   That it is pertinent to mention here that the O.P. no.2 filed W.P.(C) No.

      5799/2006 before this Hon’ble Court on 19.9.2006 praying therein as to

      why the order dt.11.6.1999 (Annexure-4), wherein the renewal of the

      mining lease was granted in favour of the petitioner herein shall not be

      set aside and the said application is still pending. In the said writ

      petition the O.P. no.2 further prayed for issuance of appropriate writ

      directing O.Ps. 1 and 2 therein to grant renewal of the mining lease in

      respect of 50% of the lease hold area in her name towards the share of

      her late husband Bikramjit Roy. Therefore, in substance the O.P. no.2

      has been pursuing the following litigation against the petitioners in

      various courts of law:-

         i)     Civil Suit no.441/1993 before the City Civil Court at Kolkata;

         ii)    Probate proceeding being PLA No.85/1998 in the High Court of

                Kolkata;

         iii)   Suit no.2757/1997 in the City Civil Court at Kolkata;

         iv)    Revision Petition no.22/17 of 2002-RC-i before the Central

                Government, New Delhi;

         v)     W.P.(C) No.5799/2006 in the High Court of Orissa;

         vi)    Civil Suit No.61/2006 in the Court of the Civil Judge (Sr.

                Division), Champua, Keonjhar;
                                                                     Page 12 of 15




         vii)    Criminal case, as narrated above in Kolkata;

         viii)   ICC No. 477/2007 corresponding to G.R. Case No.545/2007.

      It is humbly submitted that the allegations in all these cases as well as

      the present criminal cases filed at Bhubaneswar are almost similar and

      the O.P. no.2 has gone Hayward to harass the petitioners and further to

      put them behind bar, shall be when her probate application before the

      Kolkata High Court got dismissed.



20.   That the petitioners humbly state that the O.P. no.2 is neither the wife of

      late Bikramjit Roy nor his legal heir and in that view of the matter no

      Letters of Administration/Probate could be issued in her favour when the

      same was challenged by the three children of late Bikramjit Roy as his

      legal heirs.

21.   That it is humbly stated here that O.P. no.2 has been guilty of concoction

      of facts and further mis-representation of the true aspects, as well. It is

      humbly stated here that no Bank Account has been opened in the name

      of O.P. no.2 at Barbil as alleged by her.



      It is further humbly stated here that in the complaint the O.P. no.2 has

      alleged that she has been threatened by the petitioner of dire

      consequences if at all she would visit Bhubaneswar as there is no grain

      of truth involved in the same as the O.P. no.2 herself had come to

      Bhubaneswar to file the aforesaid complaint against the petitioners and

      moreover, she has given an address to be at Ashok Nagar in

      Bhubaneswar.



      Therefore, in view of the above, the petitioners humbly submit that the

      O.P. no.2, in order to grab the property of late Bikramjit Roy has gone

      Hayward to file several litigations against the petitioners in all forms

      available to her.
                                                                       Page 13 of 15




      It is further humbly submitted here that when she          lodged an FIR in

      Kolkata she could have reflected all these aspects in the said FIR for

      investigation to be undertaken by the local police but in stead of doing

      that she filed the above complaint case at Bhubaneswar corresponding to

      G.R. Case No. 545/2007 making similar allegations, more so ventilating

      her civil dispute in the form of complaint.



      The petitioners further humbly submit that the entire reading of the

      complaint does not make out a probable case against the petitioner, on

      the contrary, the allegations leveled against the petitioners are having

      the consequences of civil disputes, which cannot be taken cognizance of

      either by the criminal court or any other machinery in criminal law.



22.   That on being directed by learned S.D.J.M., Bhubaneswar under Section

      156-3 of the Cr.P.C., I.I.C./O.I.C., Capital Police Station has taken up

      the investigation and are trying to apprehend the petitioners.

23.   That the petitioners further humbly submit that there is no whisper in

      the complaint that during her stay at Bhubaneswr she was threatened by

      the petitioners of dire consequences for which under Section 177 of the

      Cr.P.C. the trial, possibly, cannot be held at Bhubaneswar and further

      other allegations are quite vague and omnibus and the same cannot

      attract a criminal liability as far as the petitioners are concerned.

24.   That the petitioners humbly submit that they are operating the mines

      after it was leased out in their favour and since the iron ore mines, in

      the meanwhile been a profitable business in Orissa, the O.P. no.2 is

      eyeing of such profit which is hard earned property of the petitioners. It

      is further humbly submitted that at the time of death of late Abhijit Roy

      the petitioner nos. 2 and 3 were in the teens and the petitioner no.1 was

      quite young. Despite the loss of the husband/father of the petitioners,
                                                                      Page 14 of 15




      the petitioners struggle to maintain the mines operation and now

      because of their hard work the mining is providing some dividend to

      them and the same has become an eye shore for the O.P. no.2.



25.   That when the O.P. no.2’s status as wife of late Bikramjit Roy is in

      question and she has failed in her attempt to get the will probated, she is

      trying all out being backed of by Prakash Industries who are need of iron

      ore to crush the petitioners and the resultant is the filing of the above

      number of cases against the petitioners.



26.   That the petitioners further humbly submit that any further continuation

      of the investigation and criminal case will not only an abuse of process of

      court but also it will have the effect of curtailing fundamental rights of

      the petitioners and their right to life enshrined under Article 21 of the

      Constitution.



27.   That there fore, under the circumstances, the petitioners invoked the

      jurisdiction of the Hon’ble Court under Section 482 of the Cr.P.C. to

      quash the above G.R. Case No.545/2007 and further quash the entire

      criminal case against the petitioners, or else, the petitioners shall suffer

      irreparable loss and injury.



                               PRAYER

      It is prayed therefore, that this Hon’ble Court may graciously be pleased

      to admit this CRLMC and issue notice to the O.P. no.2 after hearing the

      parties may be pleased to quash the G.R. Case No. 545/2007 pending in

      the court of Hon’ble S.D.J.M., Bhubaneswar and the investigation

      corresponding to Capital PS Case No.        ;

      An for this act of kindness,     the petitioner, as in duty bound, shall

      remain ever pray.
                                                                        Page 15 of 15




Cuttack,                                            By the petitioners through

Date:

                                                            Advocate



                                   AFFIDAVIT

I, Premjit Roy, aged 28 years, S/o late Abhijit Roy,resident of 192-D, Netaji

Subhas Chandra Boase Road, Kolkata-40, do hereby solemnly affirm and state

as follows:-



   1.      That I am the petitioner no.2 in this petition and have duly been

           authorized by other petitioners to swear this affidavit on their behalf.

   2.      That I have gone through the petition and have understood the

           contents of the same.

   3.      That the facts stated above are based on official records available in

           the office of this deponent and are believed by me to be true.



   Cuttack,                                                      Deponent

   Date

				
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