Calcutta High Court (Appellete Side)

F.A.M. Aminuzzaman Chowdhury @ ... vs The State Of West Bengal & Anr on 3 August, 2022

             IN THE HIGH COURT AT CALCUTTA
            CRIMINAL REVISIONAL JURISDICTION
                     APPELLATE SIDE

Present:
The Hon'ble Justice Ajoy Kumar Mukherjee

                            C.R.R. 3221 of 2018

       F.A.M. Aminuzzaman Chowdhury @ Fama Chowdhury & Ors.
                                  -vs-
                    The State of West Bengal & Anr.


For the Petitioners                 : Mr. Amitavha Karmakar
                                      Mr. Arup Kumar Bhowmick


For the O.P. no. 2                  : Mr. Apurba Kr. Datta
                                      Md. Hadiur Rahaman

For the State                       : Mr. P.K. Dutta, Ld. APP
                                      Mr. Nirupam Dhali


Heard on                             : 28.7.2022

Judgment on                          : 03.08.2022


Ajoy Kumar Mukherjee, J.

1. The present revisional application under Section 482 of the Code of

Criminal Procedure has been preferred for quashing of a proceeding being G.R.

case no. 4135 of 2018 pending before the learned Additional Chief Judicial

Magistrate, Barrackpore arising out of Jagaddal Police Station case no. 310 of

2018 dated 16.3.2018 under Section 498A of the Indian Penal Code.

2. It is alleged in the first information report that marriage between the

opposite party no. 2 herein along with the petitioner no. 1 herein was

solemnized according to the Muslim Rites and Customs. At the time of

marriage, gold ornaments and other articles were given. It is further alleged

that few days after marriage, the petitioner demanded cash from the father of

the complainant and since the father of the complainant could not arrange

additional amount, the complainant was subjected to ill treatment and torture

both mentally and physically. Father of the complainant requested the

petitioner no. 1 not to inflict torture any further but the petitioner no. 1 did

not pay any heed to such request. On 29.1.2016 the petitioners physically

assaulted the complainant and had driven her from her matrimonial home.

Subsequently on 24.01.2018 the petitioner no. 1 came to paternal house of the

complainant and made an attempt to kill her.

3. Learned advocate for the petitioner Mr. Karmakar submits that in the

year 2016, the husband of the complainant/petitioner no. 1 went to the house

of the defacto complainant to bring her back in the matrimonial home but the

defacto complainant and her family members misbehaved with petitioner no. 1

and tried to assault him. He further submits that on 18.7.2016, the opposite

party No. 2 gave 'khula' (divorce) in presence of her parents and relatives and

local people to the petitioner no. 1 and on the same day, the petitioner

returned all her stridhan articles. In fact, the instant proceeding has been

initiated by the complainant/opposite party no. 2 after dissolution of the

marriage. He further submits that in the first information report, the

complainant stated that beside husband her in-laws also demanded additional

amount from the father of the complainant but the materials in the case diary

does not support such allegation against in-laws of the complaint. In fact, the

defacto complainant/opposite party no. 2 had voluntarily left her matrimonial

house but police without making proper investigation, has submitted charge-

sheet under Section 498A of the Indian Penal Code. He further submits that

petitioner no. 1 tried his level best to resume the conjugal life but the

complainant gave 'khula' (divorce) to the petitioner and the lodgement of first

information report is clearly an afterthought and has been filed with a motive

to harass the petitioners.

4. Learned advocate for the opposite party no. 2 Mr. Dutta submits that

materials collected during investigation and the contents of complain itself,

clearly and specifically discloses offence against the petitioners. At the time of

marriage, accused no. 1 expressed that he is a divorcee but ultimately, it

appears that accused no. 1 has another wife and child prior to this marriage

and a criminal case under Section 498A/292/373 of the Indian Penal Code is

pending before the learned District Judge, Baharampur vide FIR no. 577 of

2011, (dated 11.11.2011) being G.R. no. 2365 of 2011. He also submits that

petitioner no. 1 tried to kill the opposite party no. 2 by pouring kerosine oil but

somehow the complainant managed to save herself. Petitioner no. 1 made

attempt to murder the opposite party nos. 2 on five to seven times and also

forcibly aborted her pregnancy on 3.8.2015 and 20.4.2017. Furthermore, the

petitioner no. 1 taken naked photo and video of opposite party no. 2, taking

advantage of her absence of mind and now threatening to share the same in

social media. On 24.2.2018 the accused no. 1 brutally assaulted the opposite

party no. 2 and threw acid towards the complainant and as such police has

rightly submitted charge-sheet against the accused persons.

5. Learned advocate for the State Mr. P.K. Dutta submits that sufficient

incriminating materials have been collected during investigation against the

petitioners and first information report itself discloses offence under various

provisions of the Indian Penal Code against the petitioners. Moreover, the

investigation has already been ended in charge-sheet and the case is pending

for trial and as such at this stage, it would not be proper to quash the

proceeding invoking power under Section 482 of the Code of Criminal

Procedure.

6. Considered the rival submissions.

7. It appears from the complain as well as from the materials in the case

diary including the statements recorded under Section 161 of the Code of

Criminal Procedure and the copy of the medical papers that it prima facie

discloses offence against the petitioner no. 1/husband.

8. Following the ratio as laid down in the State of Haryana Vs. Bhajan

Lal, reported in 1992 Supp (1) SCC 335, it can be said that it is not a proper

case to quash the proceeding so far as petitioner no. 1 is concerned. However,

on a perusal of the case diary as well as the complain, it appears that the

allegations levelled against the other petitioners, namely petitioner nos. 2 to 7

who are in-laws are evasive and no specific overt act has been attributed

against the said petitioner nos. 2 to 7. Relatives of the husband has been

implicated without analysing long term ramification of the trial on the

complain.

9. The Apex court time and again as deprecated such baseless implication

by way of general allegation made in the course of matrimonial dispute against

the relatives of husband, in catena of judgments.

10. In Kahkashan Kausar @ Sonam and ors. Vs. State of Bihar and

ors., reported in (2022) 6 SCC 599 it was observed by the Apex Court in Para

18:-

"18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 1-4-2019, it is revealed that general allegations are levelled against the appellants. The complainant alleged that "all accused harassed her mentally and threatened her of terminating her pregnancy". Furthermore, no specific and distinct allegations have been made against either of the appellants herein i.e. none of the appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are, therefore, general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High Court, we have not examined the veracity of allegations made against him. However, as far as the appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution."

11. On perusal of the materials as available in the case diary and also from

the averments made in the complaint , it is clear that though specific case has

been disclosed against the petitioner no. 1 but veiled object behind implicating

petitioner nos. 2 to 7 is apparently to harass the said petitioners. On perusal

of the contents of the first information report it is apparent that no specific

overt act has been alleged against any of the petitioner nos. 2 to 7. Mere casual

reference of the names of the family members in a matrimonial dispute without

allegation of active involvement in the matter, would not justify to place them

for trial, overlooking the fact that there is a tendency to involve the entire

family members of the household in the domestic quarrel taking place in a

matrimonial dispute. It has been specifically held in Neelu Chopra and anr.

Vs. Bharti reported in (2009) 10 SCC 184, in Para 9 and 10 reads as follows:

"9. In order to lodge a proper complaint, mere mention of the sections and the language of those sections is not the be all and end all of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence."

"10. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of the process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein, on the basis of a vague and general complaint which is silent about the precise acts of the appellants."

12. In the above backdrop and in ultimate analysis, I am of the view that

prayer for quashing present proceeding against the petitioner no. 1 is liable to

be rejected but the prayer for quashing of the present proceeding against the

petitioner nos. 2 to 7 is required to be allowed for the ends of justice because

even if the proceeding against the petitioner nos. 2 to 7 is allowed to be

continued that will be an abuse of process of court because there is hardly any

chance of their conviction on the basis of materials so far collected during

investigation.

13. In view of above CRR 3221 of 2018 is allowed in part.

14. Let the prayer for quashing the entire proceeding being G.R. case no.

4135 of 2018 pending before the learned Additional Chief Judicial Magistrate,

Barrackpore arising out of Jagaddal Police Station case no. 310 of 2018 dated