Calcutta High Court (Appellete Side)

Smt. Priti Mukherjee & Ors vs State Of West Bengal & Anr on 6 February, 2023

                      IN THE HIGH COURT AT CALCUTTA
                          CRIMINAL REVISIONAL JURISDICTION

Present:

The Hon'ble Justice Tirthankar Ghosh

                                 C.R.R. 568 of 2021

                              Smt. Priti Mukherjee & Ors.
                                         versus
                              State of West Bengal & Anr.


For the Petitioners             : Ms. Aiswarjya Gupta,
                                  Ms. Priyanka Saha.

For the State                   : Mr. Madhusudan Sur,
                                  Mr. Dipankar Paramanick.


Heard On              :      03-02-2023 & 06-02-2023.

Judgement On          :      06-02-2023.



      Tirthankar Ghosh, J. :


       The present revisional application has been preferred challenging

the charge-sheet filed in connection with Andal Police Station Case No.

82 of 2020 dated 01.03.2020 under Sections 447/323/379/506 of the

Indian Penal Code which is pending before learned Additional Chief

Judicial Magistrate, Durgapur as also the order of cognizance and

subsequent orders.
                                        2




       The genesis of the case was on the basis of application under

Section 156(3) of the Code of Criminal Procedure which was filed before

the learned Additional Chief Judicial Magistrate, Durgapur being M.P.

Case No. 98 of 2020. The learned Magistrate on receipt of the same was

pleased to direct the Officer-in-Charge, Andal Police Station to register a

case, consequently the present case was initiated. The allegations made

in the application under Section 156(3) of the Code of Criminal

Procedure were to the effect that the complainant Subrata Mukherjee

was married to Priti Mukherjee on or about 04.07.2009 and out of the

said wedlock a girl child viz., Poulami Mukherjee was born on

29.11.2013

. On 11.04.2013, the complainant's wife left her matrimonial

home along with the child, taking away all her belongings including

Streedhan articles and started staying at her parental home.

Complainant on several occasions went to bring her back, but she

refused to return. On 17.11.2019, the accused persons came in a Tata

Sumo vehicle at the complainant's house, abused and threatened him

thereby asking him to divorce his wife, in the alternative they would

implicate the complainant in false criminal case. The accused persons

smashed the household articles and being afraid the complainant

started shouting when local people assembled at his house and the

accused persons left the house with a message that in case the

complainant do not pay, then he would be murdered. At the time of

leaving, the accused persons took away his wrist watch and also

threatened his mother.

The investigating agency on conclusion of investigation submitted

charge-sheet before the jurisdictional court under Sections

447/341/323/506/34 of the Indian Penal Code and the learned

Additional Chief Judicial Magistrate, Durgapur was pleased to take

cognizance of the offences.

Ms. Gupta, learned advocate appearing for the petitioners

submitted that the present proceedings are attended with malafide and

is counterblast to the proceedings being Misc. Case No. 13/2017

(alimony pendente lite) and Section 12 of the Protection of Women from

Domestic Violence Act, 2005 wherein orders have been passed awarding

maintenance with huge amount of dues pending. The

complainant/opposite party no.2 in order to avoid such payments, is

using the process of criminal law to harass the petitioner no.1 and her

relations. Learned advocate draws the attention of the Court to the order

dated 03.12.2018 passed in Misc. Case No. 13/2017 wherein there was

a direction to pay alimony pendente lite to the tune of Rs.8000/- to the

wife and another sum of Rs.5000/- towards the child. Attention of the

Court was drawn to the judgement delivered in Misc. Case No. 115/2015

wherein on 17.10.2019, the learned Judicial Magistrate, 2nd Court, Suri,

Birbhum was pleased to award maintenance of Rs.15000/- (Rs.10,000/-

to the wife and Rs.5000/- to the child), an amount of Rs.4000/- towards

cost of suitable accommodation, Rs.5,00,000/- as compensation for

treatment of the daughter along with the orders relating to protection

and return of Streedhan articles. It has been submitted that earlier also

similar case was initiated being Andal Police Station Case No. 240/2018

dated 10.12.2018 wherein the police authorities on conclusion of

investigation, submitted charge-sheet for alleged offences under Sections

341/323/506/34 of the Indian Penal Code. Attention of the Court was

also drawn to the contents of the said FIR which was registered on the

basis of an application under Section 156(3) of the Code of Criminal

Procedure.

Mr. Sur, learned advocate appearing for the State has drawn the

attention of the Court to the case diary along with the statement of five

relevant witnesses and the injury report.

Before proceeding with the submissions advanced by the learned

advocate appearing for the petitioners as well as that of the State,

certain settled principles of law as laid down by the Hon'ble Supreme

Court are required to be taken into consideration.

In Rajiv Thapar v. Madan Lal Kapoor reported in (2013) 3 SCC

330, the Hon'ble Supreme Court has laid down the circumstances under

which documents of unimpeachable character or sterling quality can be

relied upon to interfere in a proceeding or for the purpose of exercising

powers under Section 482 of the Code of Criminal Procedure.

Paragraphs 29 and 30 are relevant for the purpose of the present case

which are set out as follows :

"29. The issue being examined in the instant case is the jurisdiction of

the High Court under Section 482 CrPC, if it chooses to quash the

initiation of the prosecution against an accused at the stage of issuing

process, or at the stage of committal, or even at the stage of framing of

charges. These are all stages before the commencement of the actual

trial. The same parameters would naturally be available for later stages

as well. The power vested in the High Court under Section 482 CrPC, at

the stages referred to hereinabove, would have far-reaching

consequences inasmuch as it would negate the

prosecution's/complainant's case without allowing the

prosecution/complainant to lead evidence. Such a determination must

always be rendered with caution, care and circumspection. To invoke

its inherent jurisdiction under Section 482 CrPC the High Court has to

be fully satisfied that the material produced by the accused is such that

would lead to the conclusion that his/their defence is based on sound,

reasonable, and indubitable facts; the material produced is such as

would rule out and displace the assertions contained in the charges

levelled against the accused; and the material produced is such as

would clearly reject and overrule the veracity of the allegations

contained in the accusations levelled by the prosecution/complainant. It

should be sufficient to rule out, reject and discard the accusations

levelled by the prosecution/complainant, without the necessity of

recording any evidence. For this the material relied upon by the defence

should not have been refuted, or alternatively, cannot be justifiably

refuted, being material of sterling and impeccable quality. The material

relied upon by the accused should be such as would persuade a

reasonable person to dismiss and condemn the actual basis of the

accusations as false. In such a situation, the judicial conscience of the

High Court would persuade it to exercise its power under Section 482

CrPC to quash such criminal proceedings, for that would prevent abuse

of process of the court, and secure the ends of justice."

"30. Based on the factors canvassed in the foregoing paragraphs, we

would delineate the following steps to determine the veracity of a

prayer for quashment raised by an accused by invoking the power

vested in the High Court under Section 482 CrPC:

30.1.Step one: whether the material relied upon by the accused is

sound, reasonable, and indubitable i.e. the material is of sterling and

impeccable quality?

30.2.Step two: whether the material relied upon by the accused

would rule out the assertions contained in the charges levelled against

the accused i.e. the material is sufficient to reject and overrule the

factual assertions contained in the complaint i.e. the material is such as

would persuade a reasonable person to dismiss and condemn the

factual basis of the accusations as false?

30.3.Step three: whether the material relied upon by the accused

has not been refuted by the prosecution/complainant; and/or the

material is such that it cannot be justifiably refuted by the

prosecution/complainant?

30.4.Step four: whether proceeding with the trial would result in an

abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, the judicial

conscience of the High Court should persuade it to quash such criminal

proceedings in exercise of power vested in it under Section 482 CrPC.

Such exercise of power, besides doing justice to the accused, would

save precious court time, which would otherwise be wasted in holding

such a trial (as well as proceedings arising therefrom) specially when it

is clear that the same would not conclude in the conviction of the

accused."

The documents which have been enclosed along with the present

revisional application include the judgement delivered by the learned

District Judge, Birbhum in Misc. Case No. 13/2017, the judgement

delivered by the learned Judicial Magistrate, 2nd Court, Suri, Birbhum in

Misc. Case No. 115/2015 under the provisions of the Protection of

Women from Domestic Violence Act, 2005, the earlier case which was

registered at the instance of the same complainant i.e. Subrata

Mukherjee being Andal Police Station Case No. 240 of 2018 dated

10.12.2018 under Sections 323/324/379/427/506/120B/34 of the

Indian Penal Code and the charge-sheet filed therein under Sections

341/323/506/34 of the Indian Penal Code including the certified copies

of the orders relating to present case where charge-sheet has been

submitted.

The peculiarity of the present case is that the averments made in

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

in M.P. Case No. 777 of 2018 which was the genesis of Andal Police

Station Case No. 240 of 2018 dated 10.12.2018 are similar and

identical. Paragraphs 3, 4 and 5 of the said application under Section

156(3) of the Code of Criminal Procedure are set out as follows :

"3) That the Complainant went several time to bring her back but

she flatly refused to lead conjugal life with him and always tells to

file Divorce on mutual consent but the Complainant never agrees

with her and lastly on 18/11/2018 at about 09:00 A.M. suddenly

all the accused person came to the Complainant's house at Ukhra,

Dist - Paschim Bardhaman with a TATA Sumo without bearing No.

and seriously assaulted the Complainant by fist and blows in

presence of his family members and all the accused persons used

slang languages towards the Complainant's family members and

says "TUI AMARDER MEYE K DIVORCE DIYA DE. TA NA HOLA TOK

MITTHA CASE E JORABO" and also threatened to murder the

Complainant and his other family members and during the time of

assault due to hue and cry some neighbours reached at the spot

and the accused persons went away by giving threat to the

complainant and all the accused person also broken some

household articles of the complainant.

4) That during said time accused no 4 snatched away One Wrist

Watch and one golden chain of the complainant.

5) That the complainant went to the nearest police station and

informed the officer-in-charge regarding the theft of valuable articles

but without any result."

In Usha Chakraborty & Anr. Vs. State of West Bengal & Anr.

reported in 2023 SCC OnLine SC 90, the Hon'ble Supreme Court was

pleased to hold that concealment in respect of earlier cases which relate

to civil dispute do give a cause of action to the High Court for invoking

its jurisdiction under Section 482 of the Code of Criminal Procedure.

Paragraph 15 of the said judgment is set out as follows :

"15. The materials on record pertaining to the said pleadings

instituted in the Civil Suit, produced in this proceeding would reveal

that the respondent was in fact ousted from the membership of the

trust. In the counter affidavit filed in this proceeding, the respondent

has virtually admitted the pendency of the suit filed against his

removal from the post of Secretary and the trusteeship and its

pendency. The factum of passing of adverse orders in the

interlocutory applications in the said Civil Suit as also the prima

facie finding and conclusion arrived at by the Civil Court that the

respondent stands removed from the post of Secretary and also

from the trusteeship are also not disputed therein. Then, the

question is why would the respondent conceal those relevant

aspects? The indisputable and undisputed facts (admitted in the

counter-affidavit by the respondent) would reveal the existence of

the civil dispute on removal of the respondent from the post of

Secretary of the school as also from the trusteeship. Obviously, it

can only be taken that since the removal from the office of the

Secretary and the trusteeship was the causative incident, he

concealed the pendency of the civil suit to cover up the civil nature of

the dispute."

It is a fact that the documents which have been enclosed along

with the revisional application are of unimpeachable character and of

sterling quality. Relying upon the same, it can be concluded that the

complainant and the petitioner no.1 herein are at loggerheads because of

matrimonial discord. The complainant in his application under Section

156(3) of the Code of Criminal Procedure suppressed regarding the civil

suits, the case under the Protection of Women from Domestic Violence

Act and the earlier case of Andal Police Station which is pending. The

allegations in the FIR relating to Andal Police Station Case No. 240 of

2018 dated 10.12.2018 and the present FIR and charge-sheet relating to

Andal Police Station Case No. 82 of 2020 dated 01.03.2020 are identical

and similar.

Having considered the contentions advanced by the petitioners, I

am of the view that the present case is a counterblast to the proceedings

wherein directions for alimony pendente lite as also for payment were

passed by the learned Magistrate in the proceedings under the

provisions of the Protection of Women from Domestic Violence Act,

2005.

Paragraph 8 of the judgement of the Hon'ble Apex Court in

Anupriya Pal Vs. State of Uttar Pradesh reported in (2019) 14 SCC 643 is

relevant for the purpose of the present case which is set out as follows:

"8. This is a classic case of taking revenge by the husband against

the wife since he was aggrieved by the action of the wife moving an

application seeking maintenance. Absolutely no allegation which

could fit in for the offence under Section 420 IPC is found in the first

information report lodged by Respondent 2. Since the first

information of Respondent 2 appears to be a counterblast to the

maintenance proceeding initiated by the wife against her husband,

these proceedings are liable to be quashed. Accordingly, this

petition is allowed and the order dated 31-1-2017 [Anupriya

Pal v. State of U.P., 2017 SCC OnLine All 2831] passed by the High

Court is set aside. The proceedings in Complaint Case No. 6714 of

2011 pending before the Additional CJM Court, Ghaziabad are

hereby quashed."