Sri Bivas Rana & Another vs The State Of West Bengal & Another
2022 Latest Caselaw 4003 Cal

06-07-2022                               C.R.R. No. 1393 of 2019
   KB
Item no.73
                                        Sri Bivas Rana & Another
                                                   -vs-
                                   The State of West Bengal & Another


                     Mr. Prasenjit Debnath
                                                   ... For the petitioners.

                     Mr. Saryati Datta
                                                   ... For the State.


                     In spite of service none appeared on behalf of the opposite party

             no.2.

                     The State is being represented by Mr. Saryati Datta, Learned

             Advocate.

                     This revisional application has been directed to quash the

             proceeding being G.R. No.846 of 2018 arising out of Daspur Police

             Station Case No.338 of 2018 dated 29.10.2018 under Sections

             498A/323/325/406/506/354/34 of the Indian Penal Code along with

             Sections 3 and 4 of the Dowry Prohibition Act, 1961 pending before the

             Learned Additional Chief Judicial Magistrate, Ghatal, Medinipur (W).

                     The gist of complaint is that marriage took place between the

             brother of the petitioner no.1 and the opposite party no.2 (hereinafter

             called as opposite party No.2) herein on 24.01.2017 according to

             Hindu rites and customs and cash amount of Rs.1,50,000/- (One Lakh

             Fifty Thousand), 5 (five) vori gold ornaments and other articles were

             given by the father of the O.P. No.2 herein.

                     Further allegation is that after few days of marriage the O.P.

             No.2 was subjected to physical and mental torture by her husband and
                                     2




parents-in-law to bring more dowry. She was not given proper food to

survive and she was forced to do all household works from morning to

night.

         On 27.05.2018, the husband of the O.P. No.2, upon instruction

of her mother-in-law pressed a hot iron at her right hand and the

neighbours rescued her and thereafter O.P. No.2 went to her father's

house. Subsequently she returned to her matrimonial home only after

she was given an assurance by her husband and parents-in-law not to

torture her any further. But thereafter again her husband assaulted

her to bring Rs.1,20,000/- from her father and lastly on 26.10.2018 at

about 9 P.M. her husband assaulted her and also tried to strangulate

her and the other accused persons outraged her modesty. Thereafter,

she went to hospital for treatment on 27.10.2019 and since then she is

residing at her father's house.

         It is submitted on behalf of the petitioner that there are total

nine accused persons in this case including the petitioners. The

petitioners are brother-in-law and wife of brother-in-law of the opposite

party No. 2. After investigation police has submitted charge sheet and

upon submission of charge sheet, learned Magistrate had taken

cognizance of the offence on 18.02.2019.

         Mr. Prasenjit Debnath, learned advocate appearing on behalf of

the petitioner submits that the petitioner no. 1 completed Master

Degree in Physics     from the Indian Institute of Technology, Delhi in

May, 2009 and thereafter he joined at Satyendranath Bose National

Center for Basic Sciences, Salt Lake in July 2009 for pursuing PhD

degree. Before receiving his PhD Degree, petitioner no.1 left India on
                                       3




February 28, 2014 and went to Japan to work as research associate.

          It is also to be mentioned that the petitioner no.2 being the wife

of petitioner no.1 also went along with the petitioner no.1 in Japan.

Since March, 2015, both the petitioners had been residing in Japan

and time to time the employment agreement was extended and the

petitioners obtained residence card of Japan issued by the competent

authority. Though the petitioners were residing in Japan since

2014/2015 but        sometime they came to India for short duration to

spend holidays with their family members at subsequent different

stages.

          Mr. Debnath further submitted that no specific allegation

against the petitioner no.1 and his wife i.e. petitioner No.2 has been

attributed in the First Information Report. The materials available in

the Case Diary does not at all disclose any offence against the

petitioners. The name of the petitioner merely given as list of accused

person in F.I.R. and the allegation is omnibus in nature.

          Mr. Debnath strenuously argued that there is no denial of the

fact that on the date of alleged incident i.e. on 27.05.2018, 20.06.2018

and 27.10.2018, petitioners were not present at the place of

occurrence and as such present proceeding has been instituted by the

O.P.No.2 against the present petitioners with mala fide intention and

ulterior motive.

          Allegation against the present petitioners are absurd and

inherently improbable and there is no sufficient ground for proceeding

against the petitioners. Allegation made in the F.I.R. even if they are

taken at their face value and accepted in entirety it does not constitute
                                   4




any offence as alleged against the present petitioners and if the

proceeding is allowed to be continued then it will be an abuse of the

process of the Court and as such the petitioners have prayed for

quashing the said proceeding, to obviate the harassment of the

petitioners.

       Learned advocate appearing on behalf of the State submits that

in the complaint no specific allegation has been attributed against the

present petitioners and the O.P. No.2 in her statement recorded under

Section 164 Cr.P.C. has also not made any allegation against the

present petitioners. Only in the statement recorded by police under

Section 161 Cr.P.C. their names transpires with omnibus allegation of

abusing her with filthy languages and inflicting torture upon her. Mr.

Datta, on behalf of the state further appraised the court that martial

tie of opposite party no.2 with the brother of petitioner No.1 has

already been dissolved by way of decree of mutual divorce on

21.04.2022

.

I have gone through the materials in the Case Diary including

the complaint and the statement recorded under Section 161, seizure

list as well as the injury report. No specific allegation has been

attributed against the present petitioners and except said isolated

statement before police that her brother-in-law and wife of brother-in-

law along with other accused persons have abused her with filthy

languages and inflicted torture upon her. I find no other incriminating

material against the petitioners. Moreover when she made statement

before the Magistrate on oath under Section 164 she has not

corroborated the allegation against present petitioners which she

allegedly made before police while examined u/s 161 of the code.

The name of the present petitioners has been only listed in the

bottom of the written complaint under the heading "Name of the

accused persons" and in view of the materials available in the case

diary, it can be logically concluded that there is not even remote

chance of their conviction, even if the proceeding allowed to be

continued. There is no denial that petitioners are residents of Japan

since 2014/2015 and occasionally they used to come India and as

such omnibus allegation of inflicting torture, without attributing any

specific role in furtherance of the general allegations made against

them, leads to the conclusion that the allegation in the complain is

inherently improbable and absurd.

In this context reliance can be placed upon Apex Court

Judgment in Kahkashan Kausar @ Sonam and Others Vs. State

of Bihar and Others reported in, 2022 SCC online SC 162.

"18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."

"19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, 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."

"22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged."

In view of the aforesaid facts and circumstances of the case and

in view of the materials collected during investigation, I find that the

present proceeding if allowed to be continued against present

petitioners that will be an abuse of the process of the Court.

In view of the above, let further proceeding being G.R. No. 846

of 2018 arising out of Daspur Police Station Case No.338 of 2018

dated 29.10.2018 under Sections 498A/ 323/ 325/ 406/ 506/ 354/34

of the Indian Penal Code, in respect of present petitioners hereby

quashed.

CRR 1393 of 2019 is accordingly allowed.

Urgent photostat certified copy of this order, if applied for, be

supplied to the parties on compliance of necessary formalities.

(Ajoy Kumar Mukherjee, J)