Moumita Ganguly vs State Of West Bengal
2023 Latest Caselaw 3709 Cal

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                IN THE HIGH COURT AT CALCUTTA

                (Criminal Revisional Jurisdiction)

                         Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                      C.R.R. 3925 of 2016
                              With
           CRAN 1 of 2017(Old No. CRAN 4975 of 2017)
           CRAN 2 of 2018 (Old No. CRAN 336 of 2018)
                        Moumita Ganguly
                               Vs.
                      State of West Bengal


For the Petitioner           :Mr. Soumik Ganguly, Adv.
                             Mr. S.Shasmal, Adv.




For the State                :Mr. N.P. Agarwal, Adv.
                             Mr. Pratik Bose, Adv.




Heard on                            : June 05, 2023
Judgment on                         : July 08, 2023
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Bibhas Ranjan De, J.

1. I am dealing with an application under Section 482 of the

Code of Criminal Procedure 1973 with a prayer for quashing

the Andal Police Station Case No. 122 of 2016 dated

18.05.2016 under Section 498A, 406,34 of the Indian Penal

Code (herein after refer to as IPC) pending before the learned

Additional Chief Judicial Magistrate, Durgapur, Burdwan.

2. Mr. Soumik Ganguli, Learned advocate, appearing on behalf of

the petitioner has submitted that marriage between Partha

Chatterjee petitioner no. 4 and opposite party no. 2 Anima

Chatterjee @ Jhuma Chatterjee was solemnized on

21.11.2011 and one application under Section 156(3) of the

Code of Criminal Procedure (hereinafter referred to as CrPC)

was filed by said Anima Chatterjee @ Jhuma Chatterjee on

05.05.2016 before the Court Learned Additional Chief Judicial

Magistrate at Durgapur District Burdwan alleging offence

under Section 498A, 406, 34 of the IPC against the

petitioners/in laws. Mr. Ganguli has further contended that

petitioner no. 4 Partha Chatterjee filed a divorce suit on

16.03.2016 and marriage was dissolved ex-parte on

08.06.2016. Mr. Ganguli submitted that there is no specific

allegation against any particular petitioner and the case was

filed with a false allegation just to harass the petitioners.

3. Mr. Ganguli in support of his contention relied on a case of

Kahkashan Kausar and other Vs. State of Bihar and

others reported in (2022) 6 Supreme Court Cases 599.

4. Learned advocate Mr. N.P. Agarwal appearing on behalf of the

State has submitted that there is specific allegation of

criminal breach of trust under Section 406 of the IPC as the

mother in law, petitioner no. 2, Swapan Chartterjee was

entrusted with all Stridhan articles particularly gold

ornaments but those were not returned.

5. At the outset, I would like to reproduce section 498A as

under:-

" Section 498A. Husband or relative of husband of a woman subjecting her to cruelty.

1[Whoever, being the husband or the relative of the husband

of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purposes of this section, "cruelty means"--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to

meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.] "

6. To constitute an offence under Section 498A of the IPC a

complain shall have to disclose that complainant was subject

to cruelty either by her husband or relatives of her husband

by doing any willful conduct culminating to commission of

suicide or to cause grave injury or danger to life etc; or for

causing harassment of the complainant or to coerce her or any

of her relative to meet any unlawful demand.

7. This case was initiated by an application under Section 156(3)

of the CrPC alleging inter alia that all the petitioners conjointly

used to pick up quarrel with the opposite party no.

2/complainant an abused her in filthy language . In the

month of June 2015 all accused person came to father's house

of complainant and demanded Rs. 1,00,000/- but her father

failed to satisfy their unlawful demand. From then on she was

subjected to in human torture. In the month of September

2015 all the petitioners asked the complainant to inform her

father to meet the demand of Rs. 1,00,000/-. Thereafter,

father and brother of the complainant came to her in laws

house and refused to meet any unlawful demand then all the

petitioners threatened to file divorce case against the

complainant with false and concocted grounds. On 10.01.2016

over such unlawful demand all the petitioners assaulted the

opposite party no.2 / complainant. From the written complaint

under Section 156(3) of the CrPC it is found that the

application under Section 156 (3) was filed after receiving a

notice of divorce under Section 13 of the Hindu Marriage Act.

8. Mr. Ganguli has tried to make this Court understand that all

allegations made in the complaint were of general or omnibus

in nature and in support of his contention he relied on ratio of

Kahkashan Kausar (supra) and particular observations

made in paragraphs 17 18 & 19 as follows:-

"17. 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.

18. 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.

19. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17."

9. This case was initiated by an application lodged by the de

facto complainant Anima Chatterjee @ Jhuma Chatterjee by

filing an application under Section 156(3) of CrPC alleging

inter alia that she got married with petitioner no. 4 Patha

Chatterjee on 21.11.2011and after marriage she came to her

in laws house where she entrusted all her ornaments with her

mother in law (petitioner no.2). All petitioners used to pick up

quarrel with her without any rhyme or reason and abused her

in filthy languages. Petitioners did not provide any medical aid

to her and son. In the middle of June, 2015 all the petitioners

came to her father's house and demanded Rs. 1,00,000/- from

the father of the complainant, who failed to meet up the

demand. Thereafter, she was subjected to inhuman torture.

10. Aforesaid allegations enumerated in the application

under Section 156(3) of CRPC, I am of the opinion, are nothing

but general and omnibus in nature.

11. Now, the op no. 2/ de facto complainant has tried to

specify the aforesaid allegations in the application from

paragraph 11 onwards. It is alleged that her husband and

parent in laws came to the house of the petitioner no. 1 in the

month of September 2015 and all the petitioners directed the

complainant/ op no.2 to ask her father to meet their demand

of a sum of Rs. 1,00,000/-. Accordingly, complainant asked

her father who tried to make them understand that it was

unlawful demand. Then they threatened to divorce the

complainant. Subsequently, on 10.01.2016 all the petitioners

assaulted him with slap and kick. On 16th February, 2016 the

complainant along with her husband petitioner no. 4 came to

her parental house where her husband again demanded Rs.

1,00,000/-. Again on 18.02.2016 all the petitioners came to

her father's house with the demand of Rs. 1,00,000/- but her

father denied to pay the same. Then they threatened to file

divorce suit and her husband (petitioner no. 4) send a notice

of the divorce under Section 13 of Hindu Marriage Act.

12. Mr. Ganguli on behalf of the petitioners has submitted

that divorce suit was decreed ex-parte because of non

appearance of the complainant/op no. 2.

13. There is nothing mentioned in the complain under

section 156 (3) about the purpose of demand initially in the

year 2015 while complainant was married in the year 2011

and admittedly in the year 2012 she gave birth a male child.

Though evidence collected in course of investigation disclosed

that the complainant was driven out after assault on

18.02.2016 but nothing is appearing in the complaint under

Section 156(3) of CrPC to that effect.

14. From the record it appears that one Matrimonial Suit No.

88 of 2016 was filed on 16.03.2016 and summons was duly

served upon the complainant/ op no. 2 who did not appear

inspite of receiving summons far to speak of challenging the

grounds taken for divorce in the Matrimonial Suit No. 88 of

2016. Consequently, on 08.06.2016 the said Matrimonial Suit

was decreed ex-parte on the ground of cruelty under Section

13 (1) (ia) of the Hindu Marriage Act. It is an admitted position

that complaint under Section 156 (3) of CrPC was filed after

filing of the Matrimonial suit on 16.03.2016.

15. That apart from the record, I find that one CRAN

application being no.4975 of 2017 was filed conjointly by all

the petitioners/ accused as well as de facto complainant/op

no.2 with a prayer for quashing the proceeding of GR Case no.

834 of 2016 arising out of Andal Police Station Case No. 122 of

2016 dated 18.05.2016 under Sections 498A, 406, 34 of the

IPC. In that CRAN application it is embedded that the criminal

proceeding was initiated due to some misunderstanding in

between the parties.

16. In the above conspectus I find no other alternative but to

hold that allegations made in the complain under Section

156(3) of CrPC were all general and omnibus for which

proceeding cannot be allowed to continue otherwise it would

result in an abuse of process of law .

17. In the aforesaid view of the matter the impugned GR

Case no. 834 of 2016 arising out of Andal Police Station Case

No. 122 of 2016 dated 18.05.2016 under Sections 498A, 406,

34 of the IPC stands quashed.

18. The revision application stands allowed.

19. Case diary be returned.

20. Pending applications, if there be any, stand disposed of.

21. Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

[BIBHAS RANJAN DE, J.]