Abdus Salam Mondal vs State Of West Bengal And Anr
2022 Latest Caselaw 5739 Cal

                        IN THE HIGH COURT AT CALCUTTA
                        CRIMINAL APPELLATE JURISDICTION
                              APPELLATE SIDE
Present :
The Hon'ble JUSTICE BIVAS PATTANAYAK
                        CRR. 487 of 2013
                        Abdus Salam Mondal
                                Vs.
                  State of West Bengal and Anr.


For the Petitioner:           Mr.Ayan Basu, Adv.
                             Mr. R.L Chakraborty, Adv.
                             Mr. Debapratim Guha, Adv.
                             Mr. Sumit Routh, Adv.
For the State :               Mr.Saswata Gopal Mukherjee,Ld. P.P.
                              Mr. Arijit Ganguly, Adv.
                              Ms. Debjani Sahu,Adv.


Heard on:                     27.06.2022.


Judgment on:                  23.08.2022.


BIVAS PATTANAYAK, J. : -
1.

The present revisional application has been filed by the petitioner under

Section 482 of the Code of Criminal Procedure for quashing of proceeding being

Sessions Sl. No. 127 of 2009 pending before the Learned Additional Sessions

Judge, 3rd Fast Track Court, Berhampore, Murshidabad (arising out of

Hariharpara P.S Case no.39 of 1999 dated 15th April, 1999).

2.The factual matrix of the case is that the opposite party no.2-complainant

filed an application under Section 156(3) of the Code of Criminal Procedure on

4th February,1999 before the Sub-divisional Judicial Magistrate, Berhampore

with the following contentions:-

(i) The petitioner married the elder sister of opposite party no.2-

complainant and after the demise of her elder sister, the petitioner

married one Selina Bibi.

(ii)During subsistence of such marriage with Selina Bibi an affair grew up

between the petitioner and the opposite party no.2-complainant which

ultimately resulted in marriage between them on 07.04.1997.

(iii) Soon thereafter they started to reside as husband and wife in the

house of the petitioner, however, she was inflicted with torture both

physically and mentally and ultimately on 24.01.1999 she was driven

out from the matrimonial home by the petitioner.

(iv)On the aforesaid allegation the petition of complaint was sent to

Hariharpara Police Station for causing investigation and the FIR being

no. 39 of 1999 came to be registered against the petitioner.

(v)Upon completion of investigation the Investigating Agency submitted

charge sheet against the petitioner under Sections 498A/417/376/312

of the Indian Penal Code and under Section 498A against other accused

persons.

(vi)Thereafter the case was committed to the court of Learned Sessions

Judge which transferred the same to the court of Learned Additional

Sessions Judge, Fast Track, 3rd Court, Berhampore for trial and

disposal.

(vii)The learned trial court framed charges against the petitioner under

Sections 498A/417/376/312 of the Indian Penal Code and under

Section 498A of the Indian Penal Code against the rest accused persons

facing trial.

3.Being aggrieved by and dissatisfied with the aforesaid proceeding the

petitioner has preferred the present revisional application.

4.Mr. Ayan Basu, learned advocate appearing on behalf of the petitioner,

firstly, submitted that as per FIR the alleged date of torture is on 24.01.1999,

however on such date there was no existence of legal and valid marriage

between the petitioner and opposite party no.2-complainant as 'talaq' was

already pronounced on 14.01.1999.The petitioner, after registration of the FIR,

filed a Civil suit before the Learned Civil Judge (Junior Division), 2nd Court,

Berhampore, Murshidabad being Title Suit No. 113 of 1999 praying for

declaration that no marital tie existed between the petitioner and opposite

party no.2-complainant since 14.01.1999 when 'talaq' was pronounced and

learned Civil Judge (Junior Division) while disposing of the injunction petition

observed that prima facie there was no legal valid marriage between the parties

since 14.01.1999 which is relevant in terms of Section 41 of the Evidence Act.

Therefore in the absence of legal and valid marriage no case under Section

498A of the Indian Penal Code can be made out and in support of his

contention he relied on the decisions of the Hon'ble Supreme Court passed in

Shivcharan Lal Verma and Another versus State of Madhya Pradesh1.

Further relying on the decision of the Hon'ble Supreme Court passed in

Bhaskar Lal Sharma and another versus Monica2, he submitted the

allegation made in the FIR does not enable one to arrive at an opinion that the

petitioner has primarily committed such an offence under Section 498A of IPC.

The statement of other independent witnesses also does not disclose of any

torture

Secondly, he submitted that the FIR does not disclose any allegation of rape on

promise of marriage or of any abortion of foetus conceived by alleged sexual

act. Although the opposite party no.2-complainant stated of rape upon her on

promise of marriage and subsequent abortions in her statement under Section

164 of the Code of Criminal Procedure yet that is a total departure from her

earlier statement made in the FIR. If at all any sexual act has taken place in

between the petitioner and the opposite party no.2 -complainant it is fall out of

a consensual relationship between two major persons which act cannot be

termed as "rape".. Further the opposite party no.2-complainant has already

married one Humayan Kabir Biswas on 18.12.2009 and is leading her conjugal

life. The petitioner has filed one supplementary affidavit disclosing such facts

(2007) 15 SCC 369

(2009) 10 SCC 604

annexing document of marriage between the opposite partyno.2-complainant

and said Humayun Kabir Biswas and as such the allegations are baseless and

frivolous. In the light of his above submissions he prayed that the proceeding

should be quashed in the interest of justice.

5.In reply to the contention raised on behalf of the petitioner, Mrs. Debjani

Sahu learned advocate for the State submitted that prior to marriage the

opposite party no.2-complainant conceived twice due to forcible sexual act

committed upon her by the petitioner and in both the occasions the child in the

womb had to be aborted on 26.01.1992 and 08.03.1995 respectively, which is

revealed from the statement of the victim under Section 164 as well as under

Section 161 of the CrPC. The petitioner being a married person by act of

deception got involved in sexual activity with the opposite party no.2-

complainant resulting in pregnancy of the victim, followed by forceful abortion.

Further, she submitted that the statement of the witnesses also indicate of

torture upon the opposite party no.2-complainant by the petitioner after she

was married to him. Furthermore, she submitted that on the basis of prima

facie materials charge sheet has been submitted against the petitioner and

others and charges have been framed before the trial court. In the aforesaid

backdrop, she prayed for dismissal of the revisional application.

6.None appeared on behalf of opposite party no.2-complainant in spite of

service of notice.

7.At the outset it is placed on record that in CRR 2644 of 1999, though not

preferred by the petitioner there was direction to continue proceeding against

the husband. The petitioner subsequent thereto along with two others filed an

application under Section 482 of the Code for quashing of the proceeding as

well as order issuing warrant of arrest being CRR no. 530 of 2007 but the same

was dismissed. However, at a different stage of proceeding upon framing

charges against him by learned trial court, the petitioner has filed the instant

application for quashing of the proceeding including orders. Be that as it may,

having heard the rival contentions of the both the sides, I now proceed to

decide the prayer of the petitioner made in the present application on the

touchstone of available materials.

7.1. The statement of the victim (opposite party no.2-complainant) recorded

under Section 164 and Section 161 of Criminal Procedure Code reveals that the

petitioner was earlier married to the elder sister of the victim and after the

demise of her elder sister he married one Selina Bibi. In the meantime a love

affair developed between the petitioner and the complainant (victim). There are

allegations that the petitioner made physical relationship with the complainant

(victim) which led to pregnancy of the victim twice and on both the occasions

the child in her womb had to be aborted on 26.01.1992 and 08.03.1995

resepctively at the instance of the petitioner. Ultimately on 07.04.1997 the

petitioner married the complainant. On 22.10.1998 the petitioner conveyed a

piece of land measuring 1½ sataks with house in favour of the victim and since

then she started to reside therein. There are also allegations that since such

conveyance there were infliction of torture and assault upon her and on

24.01.1999 she was driven out from the matrimonial home. The statement of

the witnesses recorded under Section 161 of CrPC also reveals of torture. The

statement of doctor, who treated the victim, shows that he found mark of

injury in the body of the victim. Further it is found from the materials on

record that upon completion of investigation charge sheet has been submitted

against the petitioner under Sections 498A/417/376/312 of the Indian Penal

Code and under Section 498A of the Indian Penal Code against the rest

accused persons by the Investigating Agency on the basis of primary materials

collected during the course of investigation. The trial Judge basing on such

primary materials framed charges against the petitioner under Sections

498A/417/376/312 of IPC and under Section 498A of IPC against the rest

accused persons facing trial.

7.2.Learned advocate has vociferously argued on behalf of the petitioner relying

on the decision of the Hon'ble Supreme Court passed in Shivcharan Lal

Verma (supra) that as on alleged date of torture there was no subsistence of

valid marriage due to pronouncement of 'talaq' on 14.01.1999, hence no

offence of Section 498A of IPC is made out. The aforesaid argument does not

hold good in view of the fact that offence under Section 498A of the Indian

Penal Code is a continuing one and as per the statement of the victim she was

tortured in the matrimonial home since after transfer of land in the year 1998

and ultimately on 24.01.1999 she was driven out from the matrimonial home.

The marriage admittedly took place on 07.04.1997. As per the FIR there are

allegations of torture since the last part of 1998. Thus primarily it is found that

since the year 1998 till she was driven out from the matrimonial home in the

year 1999 there are allegations of torture. Relying on the observation of learned

Civil Judge (Junior Division), 2nd Court, Berhampore made in Title Suit no.113

of 1999 that there was no subsistence of valid marriage since 14.01.1999

between the parties, learned advocate tried to impress upon the court that the

offence under section 498A of the IPC is not attracted on the alleged date of

occurrence on 24.01.1999 and pressed for acceptance of such observation of

the Civil Judge in terms of Section 41 of the Evidence Act. Although it appears

from order annexed to the petition that the learned Civil Judge (Junior

Division), 2nd Court, Berhampore while disposing of the application for

temporary injunction in Title Suit no.113 of 1999 observed, on the basis of

prima facie materials, that there was no marital tie between the petitioner and

opposite party no.2-complainant since 14.01.1999 yet that is a tentative

opinion and not a final one. Section 41 of the Evidence Act provides for

relevancy of certain judgments where such judgment is a final judgment or

order or decree of a competent court passed in exercise of probate,

matrimonial, admiralty or insolvency jurisdiction. Accordingly, the argument

advanced on behalf of the petitioner in this regard fall short of merit.

7.3.With regard to the decision of the Hon'ble Supreme Court passed in

Bhaskar Lal Sharma (supra) cited on behalf of the petitioner it is found that

after analyzing the facts the Hon'ble Court observed that ex facie no case has

been made out under Section 498A of IPC. However, in the case in hand there

are allegations of torture inflicted upon the opposite party no.2-complainant by

the petitioner and others and as such the facts of the cited decision are quite

distinguishable from the case in hand.

7.4. Learned advocate for the petitioner by filing supplementary affidavit

contented that the opposite party no.2-complainant has already married one

Humayan Kabir Biswas on 18.12.2009 and as such the entire case is baseless.

Be that as it may, such aspect has hardly any consequence as far as the

alleged offence is concerned which has its root much prior in time to the

aforesaid marriage.

8.It is a trite law that while exercising power under Section 482 the Court

should not usurp the jurisdiction of the trial court. The Court can quash a

prosecution which amounts to abuse of process of the court, but that power

cannot be exercised to hold a parallel trial, only on the basis of the statements

and documents collected during investigation or enquiry, for the purpose of

expressing an opinion whether the accused concerned is likely to be punished

if the trial court is allowed to proceed. (See Radhey Shyam Khemka and

Another versus State of Bihar3. It is settled principle of law that at the stage

of quashing FIR or complaint it is not justified in embarking upon an enquiry

as to the probability, reliability or genuineness of the allegations made therein

unless they are so absurd and inherently improbable that no prudent man can

ever reach to just conclusion. (See Rupan Deol Bajaj (Mrs) and Another

(1993) 3 SCC 54.

versus Kanwar Pal Singh Gill and Another4. It is placed on record that

there is neither any absurd or inherent improbability noted in the facts of the

present case nor the facts alleged in the complaint on its face value fails to

disclose an offence with which the accused is charged. As it is already found

that there are primary materials to proceed, hence invoking inherent power will

lead to stifling of a legitimate litigation. The questions whether the marriage

between the petitioner and the opposite party no.2-complainant was subsisting

at the time of alleged torture or whether sexual act was consensual or whether

such sexual act was on promise of marriage or whether there was any abortion

of foetus conceived by alleged sexual act at the instance of the petitioner or not

are purely questions of fact which needs to be assessed after taking evidence.

9.In the aforesaid backdrop I do not find any reason to interfere with the

proceeding before the trial court. However, it is made clear that the

observations made hereinabove shall not have any bearing on the rights and

contentions of the parties before the trial court.

10.Accordingly, the present revisional application being CRR no. 487 of 2013

stands dismissed.

11.All connected applications, if any, stand disposed of.

12.Interim orders, if any, stand vacated.

(1995) 6 SCC 194

13.Urgent Photostat Certified copy of this judgment, if applied for, be supplied

to the parties expeditiously after complying with all necessary legal formalities.

14.Let a copy of this order be sent to learned trial court for information.

(Bivas Pattanayak, J.)