Calcutta High Court (Appellete Side)

Dinabandhu Mukherjee & Anr vs The State Of West Bengal on 23 August, 2021

23.08.2021
Ct.42
Sl.1
F.B./B.R/K.S

(Via Video Conference)
C.R.A. 262 of 2017
Dinabandhu Mukherjee & Anr.
-Vs.-
The State of West Bengal
With
IA. No. CRAN 1 of 2021
Dinabandhu Mukherjee & Ors.
-Vs.-
The State of West Bengal

Mr. Antarikhya Basu
Mr. Debarshi Brahma
Mr. Sayan Mukherjee
Ms. Madhumita Basak
.....For the Applicant Nos.1 and 2
Mr. Sandip Chakraborty
Mr. Pratik Ghosh
..... For the Applicant No.3
Mr. Madhusudan Sur
Mr. Dipankar Paramanick
.....For the State

This case is appearing under the heading "To Be Mentioned"

upon mentioning of the parties.

I have heard Mr. Antarikhya Basu alongwith Mr. Debarshi

Brahma, learned counsel for the appellants, Mr. Sandip

Chakraborty alongwith Mr. Pratik Ghosh, learned counsel for the

de facto complainant/respondent-wife and Mr. Madhusudan Sur

alongwith Mr. Dipankar Paramanick, learned counsel for the

State.

On their submission, the appeal is taken up for

consideration in terms of the compromise arrived at by and

between the husband and wife. The appellants being husband and

mother-in-law of the de facto complainant were convicted and

sentenced for the charge under Section 498A/34 of the I.P.C.,
2

although they were acquitted of the charges under Section 307/34

of the Indian Penal Code by the impugned judgment and order

dated 10.04.2017 passed by the Learned Additional District &

Sessions Judge (Re-designated Court) at Bankura in Sessions

Case No.07 (03)15 corresponding to Sessions Trial Case No.02(07)

of 2015 arising out of Bankura Women Police Station Case

No.95/14 dated 07.09.2014 which is under challenge whereby

and whereunder the appellants were sentenced to rigorous

imprisonment for two years and also to pay fine of Rs.5,000/-

each in default clause to suffer simple imprisonment for a further

period of six months for offence punishable under Section 498A of

the Indian Penal Code.

Background

leading to this case is that based on the

complaint of de facto complainant/wife the specific case was

started against the appellants who stood trial for the charges

under Section 498A/307/34 of the Indian Penal Code.

On 17.01.2013 the complainant (P.W.1) married the

appellant no. 1 as per Hindu rites and rituals. On professional

score both the complainant i.e. P.W. 1 and the appellant no. 1 are

Assistant Teachers of Government Schools. At the time of

marriage as per the demand of the appellants cash Rs. 1 lakh,

gold ornaments of worth Rs. 5 lakhs, utensils, computer, camera,

almirah etc. were given by P.W. 1 to them. After marriage, P.W. 1

started residing in her matrimonial home but within few days of

her marriage she was subjected to mental torture by the appellant

no. 2 and other members of her-in-laws i.e. her sister-in-laws and

husbands of the respective sister-in-laws. Initially the appellants

and their family members used to criticize P.W. 1 by saying that

the articles which were given by the father at the time of her

marriage were of substandard by nature and they started

pressuring her to bring more money and ornaments from her

paternal home particularly which she purchased from her salary

prior to her marriage. Whenever P.W. 1 raised objection against

such activities of the appellants and their family members she was

restrained by the appellants and their family members from

visiting her paternal home. In the meantime P.W. 1 became

pregnant and the appellants and their family members started

creating mental pressures on her by saying that if she gives birth

to a female child then she should stay in her paternal home with

the child permanently. Being unable to bear such mental torture

P.W. 1 fell sick and the appellants started pressurizing the father

of P.W. 1 i.e. P.W. 3, to take her daughter for treatment to Vellore.

In the meantime, P.W. 1 was blessed with a baby girl and the

moment she was blessed with a daughter, the appellants and their

family members started perpetrating inhuman mental torture on

her. In the month February, (year not mentioned) P.W. 1 along

with her family members went to Vellore for treatment. However,

the appellants refused to accompany her to Vellore. It was

informed by the doctors at Vellore to P.W. 1 that she was a patient

of 'neuro' but it was curable. After returning from Vellore, P.W. 1

found that the appellants stopped keeping all sorts of contact with

her. Finding no alternatives P.W. 1 tried to get in touch with the

appellants and they did not allow her to enter the matrimonial

home. Seeing her conjugal life at stake, one day the complainant,

i.e. P.W. 1 and her father, P.W. 3 went to her matrimonial home

with a feeble hope that they (appellants) will accept her. Initially

the appellants did not allow her to enter the house but later on

P.W. 1 managed to enter. Entering her matrimonial home when

P.W. 1 stated that she will not leave her matrimonial home, at that

time the appellant no. 1 became excited and with intent to kill her

started throttling her. Somehow, P.W. 3, the father of P.W. 1

rescued her from the clutches of the appellant no. 1 but out of

fear P.W. 3 could not say anything. Later on when P.W. 1 regained

her senses the appellants drove them out from their home and

while leaving her matrimonial home, P.W. 1 demanded her gold

ornaments, passbook, cheque book etc. but both the appellants

did not allow her to take those things back rather they forcibly

kept back few sarees of her and Rs. 1 lakh.

On conclusion of trial, the learned Additional Sessions

Judge, at Bankura, in Sessions Case No. 07(03)15 corresponding

to Sessions Trial No. 02(07)2015 convicted the appellants for

commission of the offences punishable under Sections 498A/34 of

the Indian Penal Code and sentenced them to suffer rigorous

imprisonment for 2 years and to pay a fine of Rs.5000/- in default

to suffer simple imprisonment for further period of 6 months and

further directed that all the sentences shall run concurrently.

However, by the selfsame Judgment, the learned Judge was

pleased to acquit the other 4 accused persons i.e. Jyotsna

Chatterjee, Sukla Ganguly (the two sisters of the appellant no. 2)

and Uttam Chatterjee and Shyamsundar Ganguly (the son-in-laws

of the appellant no. 2). Further, the appellants were also acquitted

from the charge under Sections 307 of Indian penal Code.

Being aggrieved by and dissatisfied with the judgment

impugned, appellants preferred the instant appeal contending that

this appeal, the husband and the wife in particular entered into

an amicable settlement stating that the appellant no.3 (wife) does

not want to proceed with the criminal complaint leading to

registration of the First Information Report being, Bankura

Women Police Station Case No.95 of 2014 dated 07.09.2014

wherein the appellants were arraigned as accused persons for the

offence punishable under Sections 498A/34 and under Sections

307/34 of the I.P.C.

However, it is contended that P.W. 1 stated in her cross

examination that she stayed in her matrimonial home for a period

of only four months since the date of her marriage (i.e. on

17.01.2013) and the reasons behind staying at her paternal home

was as her pregnancy, doctor suggested her to have nutritious

food. There is no iota of evidence on record to establish that the

victim was subjected to any torture mentally and physically far

less torture which may cause grave injury to the mind, health or

body of the victim which may constitute offence punishable under

Section 498A of the Indian Penal Code. Rather in her complaint,

she failed to mention one single date when she was tortured by

the appellants at her matrimonial home.

Although P.W. 3 and P.W. 4 narrated before the

Investigating Officer i.e. P.W. 8 that the appellants used to torture

their daughter for the demand of more ornaments or as she gave

birth to a female child she was humiliated by the appellants or

that once their daughter was assaulted by the appellant no. 1 as a

result of which she became unconscious but from the deposition

of the Investigating Officer P.W. 8 but such facts were never

divulged by P.W. 3 and P.W. 4 before him at the time of

interrogation. Mere misbehaviour or demand for an article is not

falling within the purview of Section 498A of the Indian Penal

Code and something more is necessary to fasten an accused with

criminal liability falling under Section 498A of the Indian Penal

Code. As such judgment is bereft of legal and factual materials, is

unworthy of acceptance. Admittedly, witnesses i.e. P.W. 1, P.W. 2,

P.W. 3, P.W. 5 are relations of the deceased and as such they fall

within the category of interested witnesses.

Now, the appellant no.3 (wife) and the appellant no.1

(husband) and the appellant no.3 (wife) agreed for a decree of

mutual divorce and have file an application under Section 13B of

the Hindu Marriage Act, 1955 before the learned District Judge,

Bankura registered a Matrimonial Suit No. 95 of 2020. The terms

and condition of the amicable settlement has been articulated and

affirmed by the respective applicants in the application under

Section 13B of the Hindu Marriage Act, 1955.

My attention is invited to Paragraph- 9(viii) of the

application for settlement and in particular the averments made in

Paragraph-10 of the application wherein it has been stated that

the proceedings initiated by and between the parties against each

other were out of misunderstanding and they have now mutually

agreed to withdraw all the cases, proceedings, appeal, revisional

application including the settlement before the Hon'ble Court.

Learned advocate for the husband/applicant/appellants

referring to the observations made in paragraphs 6,9,10 of a

decision in the case of Arvind Barsaul (Dr.) and Ors. -vs- State of

Madhya Pradesh and Anr. reported in AIR (2008) 5 Supreme Court

Cases 794 submits that since the wife is not interested in the

prosecuting of the appellants condition of criminal proceeding

would amount to abuse of process of law.

In the cited case, the judicial magistrate had convicted the

appellants for the offence under Section 498A IPC and sentence

them to imprisonment for 18 months and fine of Rs.100/- each in

default to suffer further imprisonment for 10 days against which

appeal was preferred before the Second Additional District and

Sessions Judge wherein during the pendency of the appeal,

parties had sorted out their differences and file three separate

applications for recording the compromise in the criminal

proceedings. But the appellate Court had rejected the compromise

petition stating that the offence under Section 498A IPC is not

liable of compromise.

In such set of facts, the Hon'ble Apex Court having regard to

the inherent power of the Court and in exercise of the power under

Article 142 of the Constitution deemed it fit to quash the criminal

proceedings pending against the appellants emanating from the

FIR lodged under Section 498A IPC.

The Hon'ble High Court of Punjab and Haryana in a decision

of a case Chhota Singh -vs- State of Punjab reported in 1997 SCC

OnLine P&H 200 : (1997) 2 RCR (Cri) 392 allowed an appeal by

setting aside the conviction and sentences against the appellants

for the offences under Sections 326/325/324 and 323 of the IPC

and further bearing in mind the principle laid down in Criminal

Misc. Case No. 11501-M of 1996 Titled Sunil Kumar Yadav -vs-

State of Punjab holding that compromise is for the benefit of the

parties and for the betterment of all concerned, it can be accepted,

because the parties are closely related and it will be a starting

point in maintaining peace in the families.

Learned advocate for the appellants/applicants also refers

to a decision in the case of Kiran Tulshiram Ingale -vs- Smt.

Anupama P. Gaikwad & Ors. reported in 2006 SCC OnLine Bom

1391, to contend that relying in case of B.S. Joshi's case, (2003) 4

SCC 675 : AIR 2003 SC 1386 and in case of G.V Rao vs. L.H.V.

Prasad (2000) 3 SCC 693 : AIR 2000 SC 2474, the Bombay

High Court quashed the criminal proceeding answering a

reference to a question whether it is open for the High Court in

which an application in exercise of inherent powers even in a case

which has ended with an order of conviction after trial in the

affirmative. It was holding that even in case of conviction, inherent

powers can be exercised and criminal proceedings can be

quashed.

It would be apt to take note of observation made in case of

G.V. Rao (supra) which reads thus:-

"It was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly extend which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about re-approachment are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts."

Having regard to the principle laid down in the said decision

and further in consideration of the judgment impugned before this

Court and having regard to the fact that the applicant no. 3/wife

is living separately for more than 7 years and the allegation at it

appears from the observation made in the impugned judgment is

that she used to taunted for her fatty figure by her mother-in-law

and having cursed that her breath would cause harm to her

husband and for that she was not allowed to stay in her

matrimonial home as she had given birth to a female child. Such

petty allegations against the mother and the husband appears to

be omnibus in nature, hence, the judgement impugned itself is

liable to be set aside. Moreover considering the mutual settlement