Calcutta High Court (Appellete Side)
Subrajit Sarkar @ Subrajit Sarkar ... vs The State Of West Bengal & Anr on 21 September, 2022
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Rai Chattopadhyay
C.R.R. 1917 of 2016
Subrajit Sarkar @ Subrajit Sarkar & Ors.
Versus
The State of West Bengal & Anr.
For the petitioners : Ms. Karabi Roy.
For the State
: Mr. Saswata Gopal Mukherjee,
Ld. P.P
Mr. Imran Ali,
Ms. Debjani Sahu.
Hearing concluded on: 15/09/2022
Judgment on: 21/09/2022
Rai Chattopadhyay, J. :
1.
Aggrieved husband of the complainant, her parent-in-law and married
sister-in-law living in separate mess, have preferred to file the present case
under Section 482 read with Section 401 of the Criminal Procedure Code,
1973, challenging initiation and process of the police case at the behest of the
opposite party no.2/complainant/wife.
2. The petitioners have prayed in this case, for an order of the court
quashing the proceedings and charge sheet filed against them in Jalangi PS
Case No.368 of 2015 dated 14.04.2015 under Section 498A IPC, 1860.
3. Not all the details of unhappy married life of the petitioner no.1 and
opposite party no.2 may be discussed in this case. Suffice to say that they
were married in the year of 2005 but the same was never peaceful. They have
allegations and counter allegations against each other in their matrimonial life.
Like the petitioner no.1 contends that since after marriage he has been
regularly instigated and forced to severe relationship with his parents and
family, that the opposite party no.2 was not at all dutiful of the members of
family of her husband and was always hostile towards fulfillment of marital
obligation. He has further states that the opposite party no.2 has left her
matrimonial home without anybodies knowledge, consent and only according
to her own whims. He stated further that all his endeavor to bring his wife
back to her matrimonial home went in vain due to adamant attitude of the
opposite party no.2.
4. Contrarily the opposite party no.2/complainant has summarized her
allegations in the written complaint filed by her in the court of Chief Judicial
Magistrate at Murshidabad. The said complaint dated April 2, 2015, has
stated inter alia, that, since after her marriage she has been subjected to
extreme torture by the present petitioners, on demand of more dowry of Rs.1
lakh, over and above the monetary and other valuable gifts given to the
petitioner's family by the parents of opposite party no.2 at the time of marriage.
Details of the said marital gifts are narrated in the complaint itself. It is
specifically stated that her inability to remit such an amount has subjected her
to both mental and also physical torture perpetrated by the petitioner no.1 and
his family. She was otherwise harassed and tortured by not being allowed to
keep any contact with her matrimonial family members and also by the undue
bludgeon of her husband to dissolve the marriage by a decree of divorce. The
opposite party no.2/complainant has stated specifically in the complaint that
on February 27, 2015, at the evening she was subjected to immense physical
abuse at the instance of all the petitioners and immediately thereafter on the
next date, i.e, February 28, 2015, she was forced to leave her matrimonial
home with her brother. Since then she has been leaving separated from her
husband and matrimonial family members, of which her husband has never
been bothered about or taken any steps to bring back peace in their life.
5. These being the allegations and counter allegations regarding the
unhappy matrimonial life of the petitioner no.1 and opposite party no.2, have
given rise to the genesis of this case, that is, the complaint made by the
opposite party no.2 as stated above, before the court of Chief Judicial
Magistrate at Murshidabad. All the present petitioners were made accused
persons in that case. According to the direction of the court the police
registered Jalangi PS Case No.368 of 2015 dated 14.04.2015 under Section
498A IPC.
6. After investigation, police has submitted charge sheet, in the said
police case.
7. On this factual background the petitioners have come up with the
present case with the prayer to quash the entire proceedings in connection
with Jalangi PS Case No.368 of 2015 dated 14.04.2015 under Section 498A
IPC, on the grounds that the complainant/opposite party no. 1/wife has acted
only under ulterior motives and malice in filing the complaint against all of the
petitioners, that the complaint was full of untrue statement and baseless facts
which ought not have been taken into consideration by the trial court in order
to direct and investigation into the allegations, that the investigation conducted
by police has been perfunctory without following the rule of law or natural
justice, that the malicious proceedings initiated by the opposite party no.2 is
not tenable in the eye of law and that the same is liable to be quashed by an
order of this court.
8. Learned advocate on behalf of the petitioner has referred to a
document annexed with the petition, that is, a plaint in Matrimonial Case
No.272 of 2015, in the court of District Judge Murshidabad. It is found from
the said document that the Matrimonial Case No.272 of 2015 was filed by the
opposite party no.2 under Section 13 of the Hindu Marriage Act, 1956, praying
for desolution of her marriage with the petitioner no.1 by decree of divorce.
The said suit has ended in delivering an ex-parte order and decree by the
concern court on February 3, 2016, by dint of which the matrimonial court
decreed the suit. It is stated that by dint of the said decree the marriage tie
between the petitioner no.1 and opposite party no.2 has been severed since
February 3, 2016.
9. Learned advocate on behalf of the petitioners has also relied on certain
averments made in the plaint in the said matrimonial suit like the fact that
opposite party no.1 has stated there on affidavit that she left her matrimonial
home ultimately on February 28, 2012, over and above the wife's allegations of
torture etc, as made therein.
10. Learned Advocate on behalf of the petitioners has further pointed out
the statement of the opposite party no.2 as made in her complaint before the
court of Chief Judicial Magistrate, at Murshidabad dated April 2, 2015, that
she has mentioned the date of her leaving matrimonial home to be February
28, 2015, which is glaringly contrary with the fact she disclosed in her
matrimonial suit.
11. It is further submitted that since after the opposite party no. 2
deserted her client and with the intention to resume their conjugal life,
petitioner no. 1 sent a letter through his advocate on March 9, 2015, asking
the opposite party no. 2, to return to her matrimonial home. According to the
Learned Advocate, immediately thereafter the complaint was filed by opposite
party no.2 on April 2, 2015, as a counterblast thereof, which is full of untrue
facts and only malicious.
12. It is submitted that firstly, the marriage between two parties is no
more in existence by dint of the court's decree dated February 3, 2016.
Secondly, that the contradictions of the relevant and important fact as stated
by the opposite party no. 2 in her plaint in matrimonial suit and complaint in
Magistrate's court respectively, should only indicate about the concoction of
the facts she has brought against the petitioners with ulterior motive, before all
the respective fora. It is submitted that the same suggests complainant's
malice only in order to thrash a criminal proceeding against the present
petitioners which otherwise has got no sanctity in absence of substantiable
facts, so far as ingredients of offences under Section 498A, are concerned.
13. Learned Advocate, on behalf of the petitioners have prayed for
quashing of the proceeding before the trial court as mentioned above.
14. During her arguments Learned Advocate on behalf of the petitioners
has relied on the following judgments, the propositions of which, according to
her, supports her case:
(i) Kahkashan Kausar @ Sonam & Ors. vs. State of Bihar & Ors.
reported in (2022) 6 SCC 599.
(ii) Unreported judgment of this court in F.A.M Aminuzzaman
Chowdhury @ Fama Chowdhury & Ors. vs. State of West
Bengal & Anr. delivered on August 3, 2022 in C.R.R 3221 of
2018.
(iii) Unreported judgment of this court in-re Manoj Kumar Agarwal &
Ors. delivered on March 3, 2021 in C.R.R 397 of 2015.
15. State has been represented in this case. However, opposite party no.
2 is not represented, in spite of due and completed service.
16. So far as opposite party no. 2 is concerned the affidavit of service
filed by the petitioners in court has shown the service to be completed. Hence,
there is no impediment to accept the same as good service, though the said
opposite party is not represented in this case.
17. Learned advocate on behalf of the state has, however, strongly
controverted the submissions made on behalf of the petitioners and challenges
the grounds and prayer made in this case.
18. It has submitted on the basis of the materials available in CD in
connection with Jalangi PS Case No. 368 of 2015 dated April 14, 2015 under
Section 498A IPC, that during investigation the witnesses have duly
corroborated the allegations made by the opposite party no. 2/complainant in
her complaint dated February 4, 2015. He has controverter the submission of
the petitioners regarding non availability of any medical report by saying that
infliction of mental torture shall also entail the petitioners to come under the
four corners of Section 498A IPC. According to him during investigation
sufficient materials are collected in the form of witness's statement and the
statement of the complainant/victim regarding continuous and excessive
infliction of mental torture upon her by the present petitioners. Thus
according to the learned advocate on behalf of the state the grounds pleaded by
the petitioners in this case shall have no legs to stand upon and on the basis of
the investigation done, the petitioners are obviously and unquestionably to face
trial in this case.
19. In the judgment of Kahkashan Kausar @ Sonam & Ors. vs. State of
Bihar & Ors., the Hon'ble Apex Court has been pleased to hold as follows:
"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."
Coordinate Benches of this court, in the judgments as relied on by the
petitioners, have followed the ratio of the Hon'ble Apex Court's verdict, as
above.
20. Therefore the law regarding the point involved in this case is very
much well settled, that, vague and omnibus allegations should not lead up to
conduct of a trial pursuant to any such complaint. On the touch stone of this
settled principle of law the facts of the present is now required to be examined.
21. The opposite party no.2/wife filed her written complaint before the
Chief Judicial Magistrate at Murshidabad under Section 156(3) Cr.P.C, 1973,
alleging inter alia, taking dowry by the present petitioners at the time of her
marriage, inflicting mental as well as physical torture upon her, so much so
that her life and well being was at threat and she had to leave her matrimonial
home.
22. As it has been rightly pointed out on behalf of the petitioners,
opposite party no.2/wife has stated on affidavit before a court of law regarding
her date of leaving her matrimonial home differently than the same as in the
present complaint. In her complaint under Section 156 (3) Cr.P.C, 1973, before
the Chief Judicial Magistrate she has stated on affidavit that she was forced to
leave her matrimonial home on 28.02.2015, whereas before the matrimonial
court in a suit she has declared such date to be 27.02.2012. No doubt this has
prima facie shown about vagueness of complainant's contention. Since her
case is based upon the ground that due to the torture of the present petitioners
she had to leave her matrimonial home, for a criminal trial to be proceeded
against the petitioners, precession of such a fact is very much imperative and
necessary.
23. The complaint under Section 156 (3) Cr.p.c as well as the materials
in CD show that the allegations of the opposite party no.2 are non-specific and
from neither the complaint nor the materials in CD, specific or direct
allegations against any of the accused persons, individually, could be found.
This, excepting not justifying sending up the petitioners for trial, also show a
desparate plunge of the opposite party no.2, to involve all the members of
entire household, which tendency has been repeatedly deprecated by the
Hon'ble Supreme Court, in various judgments.
24. No doubt it is a matter on record, that, by an ex-parte decree of
divorce of the competent court, the marriage tie of the parties was severed with
effect from 3rd February, 2016, after a prolonged period of living separate from
each other. Needless to mention that the opposite party no.2 is far from being
specific regarding the relevant dates, as discussed above.
25. Upon this factual background, the ratio of the judgment as relied on
by the petitioners squarely applies to their case. No specific roll is attributed to
any of the petitioners individually in commission of the offence, as alleged.
Also that the relevant and pertinent dates are merely her surmise. On all the
facts and circumstances as discussed above, it would only be unjust if the
petitioners are forced to go through the riguors of trial in so far as the general,
omnibus allegations against them could not manifest the situation where the
petitioners may be forced to undergo a trial. If so done, that would amount to
be an abuse of the process of the court. Hence it is appropriate that this court
intervenes and quashes the proceedings.
26. One cannot however, leave aside the argument on behalf of the
state/opposite party, that, not only the physical torture but mental torture is
also a component to construe an offence under Section 498A IPC, which the
complainant has specifically pleaded. Even accepting the principle as argued,
in this particular case, one cannot find such material in the CD not to speak of
any definite or precise of those, to even presume any iota of such allegations to
have been subsantiated by any material in that.
27. Accordingly this court has no hesitation to hold that there is no
material against the petitioners to direct the trial to be proceeded with against
them and the present criminal revision case merits success.
28. C.R.R 1917 of 2016 is allowed. The case pending before the trial
court being G.R Case No.1484 of 2015 in connection with Jalangi PS Case
No.368 of 2015 dated 14.04.2015 under Section 498A IPC, is quashed and set
aside.
29. C.R.R 1917 of 2016 along with all connected applications is disposed
of. Copy of the order be sent to the learned trial court for information and
necessary action.
30. Urgent certified website copy of this order, if applied for, be supplied
to the parties upon usual undertaking.
( Rai Chattopadhyay, J. )
