Calcutta High Court (Appellete Side)
Smt. Chandana Saha vs State Of West Bengal & Anr on 4 January, 2023
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present: - Hon'ble Mr. Justice Subhendu Samanta.
C.R.R. No. - 2809 OF 2018
Smt. Chandana Saha
Vs.
State of West Bengal & Anr.
with
CRR 2812 OF 2018
+
IA No. CRAN 1 of 2019
(Old No. CRAN 3877 of 2019)
Debasish Chandra Roy
Vs.
State of West Bengal & Anr.
with
CRR 2813 OF 2018
Subhasish Chandra Roy
Vs.
State of West Bengal & Anr.
with
CRR 2814 OF 2018
Mina Roy
Vs.
State of West Bengal & Anr.
with
CRR 2815 OF 2018
Smt. Bandana Dey
Vs.
State of West Bengal & Anr.
For the petitioner : Mr. Partha Chakraborty, Adv.,
Mr. Archishman Chakraborty, Adv.
For the State : Mr. Saswata Gopal Mukherjee, Adv.,
Mr. Binay Panda, Adv.,
Mr. Subham Bhakat, Adv.,
[In CRR 2809 of 2018]
2
Mr. Swapan Banerjee, Adv.,
Ms. Purnima Ghosh, Adv.
[In CRR 2812 of 2018 & CRR 2815 of 2018]
For the opposite Parties : Mr. Sambhunath De, Adv.,
Mr. Ranjit Kumar Ghosh. Adv.
Judgment on : 04.01.2023
Subhendu Samanta, J.
The present criminal revisions were preferred by the husband and in-
laws of private OP No-2 for quashing of a criminal proceeding vide Garfa P.S
case no.- 222 dated 17.07.2017 U/s 498(A)/406/34 of IPC and section 4 of
Dowry Prohibition Act 1961 now pending before the Learned Additional
Chief Judicial Magistrate Alipore, South 24 Parganas.
The husband and the in-laws were arrayed as an accused in a letter of
complaint dated 16.07.2017 lodged by the opposite party No. 2 addressed
O.C. Garfa Police Station South 24 Parganas under the above mentioned
provisions of law for which the police case was started.
The investigation of the police was ended in charge sheet vide C.S. No.
170 of 2017 dated 25.09.2017 U/s 498(A)/406/34 IPC against all the
accused persons.
In a nutshell, the brief fact of petitioner is that - on bare perusal of
the letter of complaint it would be revealed that it is an afterthought,
imaginary, baseless, false and frivolous allegation has been levelled against
the petitioners. The statement of the petition of complaint are contradictory
from each other and it does not reflect in a prima facie materials of physical
and mental torture upon her. The petitioners have been falsely implicated in
this case and were not at all involved in the alleged occurrence. The
statement in the complaint regarding the involvement of the present
petitioner is practically imaginary and harrasive one. It is the further case of
the petitioner the long hand written complaint stated several occurrences
which actually not happened and it is only filed to harass the present
petitioner. It is the further case of the petitioner that the investigation
conducted by the investigating agency without any proper and fair
investigation dragged the present petitioner in the instant criminal case. No
sufficient materials has been collected by the investigating agency during
the course of investigation of this case. The statement so far as collected by
the I.O. are the statement of father and mother of the de facto complainant.
No other statement of independent witnesses were collected. On the basis of
collected materials the prima facie case against the present petitioner
actually was not substantiated. Thus the continuation of the criminal
proceeding is bad in the eye of law.
Learned Advocate appearing on behalf of the state submitted that
after receiving the petition of complaint of the married lady (OP No. 2) the
police took up the investigation conducted search, made seizure some
stridhan articles were seized from the possession of the accused person.
Statement available as witnesses were recorded and after being satisfying
regarding the prima facie involvement of the present petitioner in the alleged
offence, the charge sheet has been submitted.
Learned Advocate for the State further pointed out that the materials
so collected by the I.O. during the course of investigation of this case cannot
be weighted at this stage. So, he prayed for dismissal of the criminal
revision.
Learned Advocate appearing on behalf of the petitioner cited several
decisions in support of his contention there Wasim Vs. State (NCT of Delhi)
[(2019) 7 SCC 435], Shafiya Khan Vs. State of Uttar Pradesh [(2022) 4
SCC 549], Durshi Chand Agarwal vs. State of West Bengal [2011(2) CHN
(CAL)1011] and State of Hariyana & Ors. Vs. Ch. Bhajanlal & Ors. [ AIR
1992 Supreme Court 604]
In Wasim vs. State (NCT of Delhi) Hon'ble Supreme Court has held
in para- 12 that
12. Conviction under section 498-A IPC is
subjecting a woman to cruelty. Cruelty is
explained as any wilful conduct which is likely
to drive a woman to commit suicide or to cause
grave injury or danger to life, limb or health.
Harassment of a woman by unlawful demand
of dowry also partakes the character of
"cruelty''. It is clear from a plain reading of
Section 498-A that conviction for an offence
under Section 498-A IPC can be for wilful
conduct which is likely to drive a woman to
commit suicide OR for dowry demand. Having
held that there is no evidence of dowry
demand, the trial court convicted the appellant
under Section 498-A IPC for his wilful conduct
which drove the deceased to commit suicide.
The appellant was also convicted under
Section 306 IPC as the trial court found him to
have abetted the suicide by the deceased.
In this cited reference the Hon'ble Supreme Court is of clear view that
the prosecution has failed to prove mental or physical cruelty so inflicted
upon the victim thus, Hon'ble Supreme Court is of final observation that
conviction U/s 498A cannot be sustained.
Hon'ble Supreme Court in State of Hariyana and Ors. Vs. Ch.
Bhajanlal and Ors. Has formulated some comments regarding the quashing
of FIR. Para 91 of the said judgment is read as follows-
Gajendragadkar, J. Speaking for the Court
while considering the inherent powers of the
High Court in quashing the First Information
Report under Section 561-A of the old Code
(corresponding to Section 482 of the new
Code) in R.B. Kapur v. The State of Punjab
(cited above (1960) 3 SCR 338: (AIR 1960 SC
866 at p. 869) at page 393 made the following
observation :
" Cases may also arise where the allegations
in the First Information Report or the
complaint, even if they are taken at their face
value and accepted in their entirety, do not
constitute the offence alleged; in such cases no
question of appreciating evidence arises; it is a
matter merely of looking at the complaint or the
First information Report to decide whether the
offence alleged is disclosed or not. In such
cases, it would be legitimate for the High Court
to hold that it would be manifestly unjust to
allow the process of the criminal court to be
issued against the accuse person."
Paragraph 107 and 108 of the said judgment has also fixed some
guiding principles regarding the quashing of FIR.
107. Mr. Parasaran, according to whom the
allegations in the present case do not make out
an offence, drew our attention to a recent
judgment of this Court in State of U.P. vs.
V.R.K. Srivastava (1989) 4 SCC 59 : (AIR 1989
SC 2222) to which one of us (S. Ratnavel
Pandian, J.) was party. In that case, it has
been ruled that if the allegations made in the
FIR, taken on the face value and accepted in
their entirety, do not constitute an offence, the
criminal proceedings instituted on the basis of
such FIR should be quashed. The principle laid
down in this case does not depart from the
proposition of law consistently propounded in
a line of decisions of this Court and on the
other hand it reiterates the principle that the
court can exercise its inherent jurisdiction of
quashing a criminal proceeding only when the
allegations made in the FIR, do not constitute
an offence and that it depends upon the facts
and circumstances of each particular case.
108. In the backdrop of the interpretation of
the various relevant provisions of the Code
under Chapter XIV and of the principles of law
enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code
which we have extracted and reproduced
above, we give the following categories of
cases by way of illustration wherein such
power could be exercised either to prevent
abuse of the process of any Court or otherwise
to secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to
give an exhaustive list or myriad kinds of
cases wherein such power should be
exercised.
1. Where the allegations made in the First
Information Report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
2. Where the allegations in the First
Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156 (1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
3. Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
4. Where, the allegations in the F.I.R do not
constitute a cognizable offence but constitute
only a non- cognizable offence, no investigation
is permitted by a police officer without an
order of a magistrate as contemplated under
Section 155(2) of the Code.
5. Where the allegations made in the F.I.R or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and / or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly
attended with mala fide and / or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.
Hon'ble Supreme Court in Shafiya Khan in the State of Uttar Pradesh
also followed the same principle in Bhajanlal Case.
In Paragraph 15 of Durshi Chand Agarwal Vs. State of West Bengal
this court has held that
15. In the general election to the legislative
assembly of the State of Haryana in June
1987, Smt. Jasma Devi, the wife, of Ch.
Bhajan Lal contested from Adampur
constituency on being sponsored by the
Congress (I) party as against the second
respondent, Mr. Dharam Pal who was a
nominee of the Look Dal.Mrs. Jasma Devi was
successfully elected. Dharam Pal presented an
election petition calling in question the election
of Smt. Jasma Devi on a variety of grounds.
Ch. Devi Lal, the third respondent in this
appeal who was the second respondent in the
writ petition also contested on Lok Dal's ticket
and became successful. Thereafter, Ch. Devi
Lal became the Chief Minister of the State of
Haryana in 1987.
It seems that after the general election
there were a number of criminal proceedings
between the parties one of which being a
criminal prosecution against Dharam Pal
under Section 307, IPC registered in Adampur
police station. On account of the political
rivalry and the institution of a number of
criminal cases and counter cases there was
bad blood between Ch. Bhajan Lal on the one
hand and Ch. Devi Lal on the other.
The facts and circumstances of the case mentioned in the Durshi
Chand Agarwal is separate to the facts and circumstances of the instant
case thus this principle is not at all applicable.
Heard Learned Advocate perused the materials on record also perused
the principles laid down in the Bhajanlal case.
In Mahavir Vs. State (2000) 8 SCC 115 Hon'ble Supreme Court is of
view that "power of quashing criminal proceeding should be exercised
sparingly and with circumspection and that too of rarest of rare cases".
In the case of Bhajanlal it is formulated that the allegations in the FIR
of the complaint even if, they are taken on their face value and accepted
entirety do not constitute the offence alleged, in such cases no question of
appreciating evidences arises, it is a matter merely of looking at the
complaint or the FIR to decide whether the offence alleged is disclosed or
not. In such cases it would be legitimate in the High Court to hold that it
would be manifestly unjust to allow the process of the Criminal Court to be
issued against the accused persons.
Let me consider whether principles laid down in the Bhajanlal's case
is applicable in the case.
In the present case it appears that there is a long hand petition of
complaint written by the complainant herself. It contents some instances
and allegations of torture committed by the accused persons. Some
allegations is of such a nature as is likely to causes grave injury or torture to
life, or limb or health of the complainant. The complaint also mentioned day
to day affairs; it disclosed the allegation of mental torture inflicted upon the
de facto complainant by the petitioners. On receiving the complaint police
registered a criminal case and started investigation. During the course of
investigation some stridhan articles were seized from the possession of the
petitioners. The statement of mother and father of the de facto complainant
was recorded. Now the petitioners are before this court with a specific plea
that the statement of the petition of complaint is false and contradictory to
each other. At this juncture the fact disclosed in the complaint cannot be
accepted to be false without examination of the de facto complainant at trial.
Further more the facts in the complaint is not appears to me self
contradictory. During the course of investigation, police should have
collected some evidence of independent witnesses but they have failed to do
so. The failure of the investigating agency to collect proper evidence itself
cannot disprove the facts in the complaint. This is a very initial stage of this
case where the charge sheet has been submitted after completion of
investigation. At this juncture I find no justification to hold that allegation
made in the FIR is not constitute an offence. Whether the prosecution would
be able to prove the case at trial is the matter and future probabilities. In
the criminal jurisdiction the High Court has no power to measure the
probative value of evidences collected by the investigating agency by holding
mini-trial.
The facts and circumstances of this case suggests the principle for
quashing FIR as laid down in the Bhajan Lal's case is not at all applicable.
I find the allegation made in the FIR are not so absurd by which it can
be presumed that no prima facie case has been made out. The petitioner
also failed to establish any particular circumstances for which it can be hold
that the criminal proceeding is instituted with an ulterior motive for
wrecking vengenance on the accused.
Thus after considering the facts and circumstances of this case and
also considering the entire materials on record I am of a view that the
criminal proceeding pending against the present petitioners before the
Learned Magistrate is not liable to be quashed.
In conclusion, criminal revisional applications are dismissed.
Pending connected CRAN applications if any, are also disposed of.
Any order of stay passed by this court during the continuation of the
revisional applications are also vacated.
CRRs are disposed of.
(Subhendu Samanta, J.)
