Calcutta High Court (Appellete Side)

Poornima Ghosh vs Unknown on 2 August, 2023

02.08.2023 Serial no. 393 [G.S.D]

CRR 1591 of 2021

In the matter of : Poornima Ghosh

... ... Petitioner Mr. Apalak Basu Mr. Nazir Ahmed Ms. Snehal Seth ... For the Petitioner

Mr. Tapan Datta Gupta Mr. Saurabh Guha Thakurata Ms. Nilanjana Sarkar ... For the O.P. No.2 Mr. Saswata Gopal Mukherjee Mr. Narayan Prasad Agwarwala Mr. Pratick Bose ... for the State

This revisional application has been preferred

challenging the further continuance of Bansdroni P.S. Case

No. 98 of 2021 dated 24.6.2021 under Sections

498A/406/506/34 of the Indian Penal Code read with

Sections 3 & 4 of the Dowry Prohibition Act, 1961 filed by

one Poornima Ghosh.

During pendency of the revisional application, it has

been submitted that charge-sheet was submitted before the

jurisdictional Court against all the accused persons, who

were named in the First Information Report except one,

Shubhasish Sharma Sarkar, who was the superior office

colleague of the husband of the defacto-complainant/the

O.P. No.2.

Mr. Basu, Learned Advocate appearing for the

petitioner, submits that even if the allegations made in the

letter of complaint, which has been treated to be the First

Information Report, are taken to be true, there are no

incriminating allegations appearing against the present

petitioner in respect of the complicity of the alleged offence

under Sections 498A/406/506/34 of the I.P.C.

The petitioner, as is reflected from the letter of

complaint, happens to be the grandmother of one Anasuya

Ghosh, against whom there was an allegation that she had

an illicit relationship with the husband of the defacto-

complainant, namely, Jyotirmoy Biswas.

Mr. Tapan Datta Gupta, Learned Advocate appearing

for the Private O.P. No.2/defacto-complainant, submits that

there were overt act of the present petitioner in the manner

that she had shouted to the complainant when the

complainant wanted to bring it to the notice of the parents

and the grandmother of said Anasuya Ghosh regarding the

relationship which, she had developed with her husband in

spite of being a cousin sister.

Learned Advocate also submitted that as the

revisional application was preferred at the stage when the

investigation was in process and charge-sheet has already

been submitted before the jurisdictional Court, although the

Learned Magistrate has deferred taking cognizance of the

offence, this Court should not interfere with the proceedings

pending before the Learned Magistrate.

Mr. Agarwala, Learned Advocate appearing for the

State, has drawn the attention of this Court to the list of

witnesses, who have been relied upon in the charge-sheet

and to the specific allegation in the letter of complaint,

which has been treated to be the First Information Report,

wherein it has been alleged that the complainant having

come to know the illicit relationship with said Anasuya

Ghosh, who are the maternal relatives, complained to her

parents and grandmother requesting them not to encourage

such activities but they started shouting and abusing her

badly which was supported by her husband and her father-

in-law.

At the conclusion, in her further statement, the

defacto-complainant, at the concluding paragraph, has

alleged that her husband, father-in-law, mother-in-law,

maternal uncle-in-laws, maternal-in-laws, maternal-sister-

in-law and grand mother together conspired to break her

family and so steps should be taken against them.

The Case Diary is produced before this Court by the

Learned Advocate appearing for the State.

I have considered the materials from the point of

view of the present petitioner, who happens to be the

grand-mother and, on consideration of the nature of the

allegations complained against her and the purpose for

which the criminal case was initiated particularly under

Section 498A/406/506/34 of the Indian Penal Code read

with Sections 3 & 4 of the Dowry Prohibition Act, 1961, I

find that the present petitioner was not involved either in

retaining any stridhan articles or had any role to play for the

demand of dowry or for that matter compelling the

complainant to pay EMIs for the flat, which was purchased

by her husband. The only aspect for which the petitioner

was implicated in the present case was her reaction on

hearing that her grand-daughter, being the cousin, was

involved in a questionable relationship with the defacto-

complainant's husband. The same is a single incident, which

has been complained of.

Considering the judgment, which has been relied

upon by the defacto-complainant/O.P. no2, reported in

[(2010) 2 Cr LR (SC) 108 (K. Neelaveni -Vs- State Rep. by

Inspector of Police & Ors.)], wherein the facts reflects that

during the subsistence of the first marriage, the husband of

the petitioner married on the second occasion and in the

First Information Report, it was clearly alleged that the gold

ornaments and other household articles, which were given in

the marriage were retained by the accused persons and the

petitioner was subjected to cruelty at the matrimonial home.

I am of the view that the cited judgment is based on

separate factual circumstances.

So far as the procedural part is concerned, the

attention of this Court is drawn to paragraph 11 of the said

judgment, which is set out below:

"11. It is relevant here to state that offences under Sections 406, 494 and 498A are triable by a Magistrate, First Class and as all these offences are punishable with imprisonment for a term exceeding two years, the case has to be tried as a warrant case. The procedure for trial of warrant case by a Magistrate instituted on a police report is provided under Chapter XIX Part A of the Code of Criminal Procedure, 1973. Section 239 inter alia provides that if upon considering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. It seems that the accused persons even before the case had reached that stage filed an application for quashing of the charge sheet under Sections 406 and 494 of the Indian Penal Code. In our opinion, the High Court ought not to have interfered after the submission of the charge sheet and even before the Magistrate examining as to whether the accused persons deserved to be discharged in terms of Section 239 of the Code of Criminal Procedure."

I have considered the totality of the circumstances

and I am of the opinion that having regard to the allegations

made in the F.I.R. itself, the case should not have been

registered against the present petitioner and on perusal of

the Case Diary wherein the statement of different witnesses

have been recorded, I do not also find the complicity of the

petitioner so as to call upon her to participate in further

proceedings of the instant case.

Consequently, all further proceedings so far as the

present petitioner is concerned, in connection with

Bansdroni P.S. Case No. 98 of 2021 dated 24.06.2021 under

Sections 498A/406/506/34 of the Indian Penal Code and the