Calcutta High Court (Appellete Side)
Deepak Chatterjee @ Dipak ... vs The State Of West Bengal & Anr on 8 June, 2023
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 261 of 2020
Deepak Chatterjee @ Dipak Chatterjee & Ors.
Vs.
The State of West Bengal & Anr.
For the Petitioners : Mr. Avishek Bhandari,
Mr. Dipayan Dan.
For the Opposite Party/State : Ms. Rita Dutta.
Heard on : 01.05.2023
Judgment on : 08.06.2023
Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for quashing of the
proceedings in GR Case No. 254 of 2015 presently pending before the
Learned Judicial Magistrate, 2nd Court, Asansol, Paschim Bardhaman,
arising initially out of Hirapur Police Station Case No. 28 of 2015 dated
04.02.2015 under Sections 498A/406/325/307/376/511/120B/34 of
the Indian Penal Code, 1860 (later transferred to Asansol Women Police
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Station for investigation), including order dated 17.06.2019 and all other
orders passed therein.
2. Mr. Avishek Bhandari, learned counsel for the petitioners has
submitted that the petitioner no. 1 is the father-in-law, the petitioner no.
2 is the mother-in-law and the petitioner no. 3 is the brother-in-law of
the opposite party no. 2.
3. That the elder son of the petitioners no. 1 and 2, namely, Subhas
Chatterjee (since deceased and hereinafter referred to as the 'elder son of
the petitioners no. 1 and 2) was earlier married to one Sona Chatterjee
nee Chakraborty but the said marriage culminated in a divorce.
Thereafter, the said elder son of the petitioner nos. 1 and 2 got married
to the opposite party no. 2 on 30.11.2006 according to Hindu rites and
customs. After the said marriage, the opposite party no. 2 and the elder
son of the petitioners no. 1 and 2 began residing separately at a rented
accommodation at Shyambandh, Burnpur, Asansol.
4. That the petitioners, at the time of marriage of the opposite party no.
2 with the elder son of the petitioners no. 1 and 2, used to reside at
Holding No. 459(N), Manik Chand Pally, Post Office - Burnpur, Police
Station - Hirapur, Asansol, District - Burdwan, PIN - 713 325 and the
opposite party no. 2, after her marriage with the elder son of the
petitioners no. 1 and 2, never resided with the petitioners at the said
address.
5. From the very beginning, the opposite party no. 2 was opposed to the
notion of keeping good and healthy relationship with the petitioners. The
opposite party no. 2 also did not allow the elder son of the petitioners no.
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1 and 2 to keep in touch with the petitioners. The petitioners did not
have any contact with either the opposite party no. 2 or their son after
the marriage between the two.
6. That it came as a shock to the petitioners, when their elder son
namely, Subhas Chatterjee, was purportedly found hanging in his room
on 07.12.2013 and the cause of death was held to be suicidal.
7. That at the time of his death, the said Subhas Chatterjee was still
residing with the opposite party no. 2. That immediately after the death
of her husband, the opposite party no. 2 took all articles including her
own belongings from their rented residence to her own paternal home.
8. That since the death of her husband, the opposite party no. 2 did not
reside with the petitioners. However, she began targeting the petitioners
with the intention to extort money from them by threatening to falsely
implicate them in criminal cases. The opposite party no. 2, in connivance
with notorious and anti-social elements of the society, began mentally
and physically harassing the petitioners. The acts of the opposite party
no. 2, harassing the petitioners, went to such intolerable extent that the
petitioners chose to sell their house at Manikchand Pally and moved to
their present address at Ahibushan Plaza (4th Floor), No. 1 Mohishila
Colony, Atta Chaki More, Simultala, Post Office - Mohishila, Police
Station - Asansol, District - Paschim Burdwan, PIN- 713 303.
9. That despite having no contact with the petitioners and never having
resided together with the petitioners at any point of time either before or
after the death of her husband, the opposite party no. 2 lodged a
complaint with the Officer-in-Charge, Hirapur Police Station, on the
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basis of which Hirapur Police Station Case No. 28 of 2015 dated
04.02.2015 under Sections 498A/406/325/307/376/511/120B/34 of
the Indian Penal Code, 1860 was registered against the petitioners and
four others namely Tarun Ganguly (uncle-in-law), Sumita Banerjee
(sister-in-law), Sumanta Banerjee (husband of Sumita Banerjee) and one
Mohan Sharma, inter alia, alleging as follows:-
"that the opposite party no. 2 herein and the elder son of
the petitioner nos. 1 and 2 herein got married on
30.11.2006 at Tarapith Mandir in accordance with Hindu
rites and customs; that the opposite party no. 2 herein came
to her in-laws house at Hirapur Manikchand Pally under
Hirapur Police Station and started residing with her
husband, the petitioners herein and others; that at the time
of marriage, the father of the opposite party no. 2 herein
gave Rs.50,000/- (Rupees Fifty Thousand only), gold and
silver ornaments and other valuables and articles to the
petitioners and other accused persons according to their
demand; that the petitioners and others mentally and
physically tortured the opposite party no. 2 herein; that the
petitioner no. 3 herein had the intention to sexually exploit
the opposite party no. 2 herein; that the petitioners and the
other accused persons further demanded dowry of
Rs.1,00,000/- (Rupees One Lakh only) and a motor cycle;
that the father of the opposite party no. 2 herein failed to
fulfil such demand; that the torture meted out at the behest
of the petitioners and the other accused persons grew and
they deprived the opposite party no. 2 herein of food and
mixed salt with her food; that the opposite party no. 2
herein gave birth a male child namely Aniket Chatterjee on
20.12.2008; that on 07.12.2013, the husband of the
opposite party no. 2 herein passed away; that after the
demise of her husband, every night the petitioner no. 3
herein returned home intoxicated condition; that on
14.01.2015, while the opposite party no. 2 herein was
sleeping at her matrimonial home at Hirapur Manikchand
Pally, the petitioner no. 3 herein trespassed into the
bedroom of the opposite party no. 2 herein and tearing her
apparel, attempted to rape her; that upon resistance at the
behest of opposite party no. 2 herein, the petitioner no. 3 left
her and fled away, threatening her; that on 22.01.2015, the
petitioners herein entered into the room of the opposite party
no. 2 herein and by tying her hands with ropes, attempted
to kill her and her son by strangulation but when the
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opposite party no. 2 herein raised hue and cry they left; that
the one Mohan Sharma had entered into criminal conspiracy
with the petitioners herein and had threatened the opposite
party no. 2 herein and her son; that the opposite party no. 2
herein along with her minor son was driven out of her
matrimonial home on 25.01.2015."
10. It is submitted that even after the registration of the instant case, the
opposite party no. 2 continued to threaten and intimidate the petitioners.
The opposite party no. 2 also demanded Rs.8,00,000/- (Rupees Eight
Lakhs only) from the petitioners. On one occasion, she forced the
petitioner nos. 1 and 3 to put their signatures on a blank piece of paper
and extorted Rs.20,000/- (Rupees Twenty Thousand only) from them.
Unable to bear the incessant torture and intimidation meted out by the
opposite party no. 2, the petitioner no. 2 preferred an application under
Section 156(3) of the Code of Criminal Procedure, 1973 before the
Learned Additional Chief Judicial Magistrate, Asansol and thereafter,
pursuant to the direction of the Learned Magistrate, Asansol (S) Police
Station Case No. 211/15 dated 27.05.2015 under Sections
341/323/384/448/386/34 of the Indian Penal Code was registered
against the opposite party no. 2. The said case is still pending.
11. The investigation in connection with the instant case was made
over to the Asansol Women Police Station on 24.02.2015. The
investigating agency has submitted the charge sheet being Charge Sheet
No. 149/15 dated 31.07.2015 under Sections 498A/34 of the Indian
Penal Code against the petitioners.
12. That the petitioners, after receiving the copies in compliance with
Section 207 of the Code of Criminal Procedure, 1973 preferred an
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application before the Learned Magistrate on 30.01.2019, inter alia,
praying for discharge. The said application was taken up for hearing on
17.06.2019 and by an order dated 17.06.2019, the said application was
rejected.
13. It is stated that the statement of the opposite party no. 2 under
Section 164 of the Code of Criminal Procedure, 1973 depicts beyond any
reasonable doubt that the instant case is a concocted one and has been
falsely registered to harass the petitioners.
14. That the opposite party no. 2 has unambiguously stated in her
statement under Section 164 of the Code of Criminal Procedure, 1973
that she used to reside separately with her husband and even after the
death of her husband, she was not staying with the petitioners at her
matrimonial home owing to the purported objection of the petitioners. It
is pertinent to mention in this regard that the opposite party no. 2 had,
in contradiction to her statement under Section 164 of the Code of
Criminal Procedure, 1973, alleged in her written complaint that she was
residing with the petitioners after her marriage and was subjected to
mental and physical torture by them.
15. It is stated that the investigation in this case has revealed that the
opposite party no. 2 took away all her belongings to her paternal home
on 14.12.2013 and such fact has been substantiated by the statement
under Section 164 of the Code of Criminal Procedure, 1973 of one Sanjay
Sarkar, who was present when the opposite party no. 2's belongings were
taken to her paternal home and had put his signature on a document
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endorsing the same. The said signed document has been seized in
connection with the instant case.
16. It is further stated that the opposite party no. 2 has clearly stated in
her statement under Section 164 of the Code of Criminal Procedure,
1973 that she had left her matrimonial home on 20.01.2015 owing to the
torture meted out by the petitioners. However, she has alleged that the
petitioners had attempted to murder her by strangulation on 22.01.2015.
This inconsistency was duly noted by the Learned Additional Chief
Judicial Magistrate, Asansol while granting bail to the petitioners.
However, the Learned Judicial Magistrate, 2nd Court, Asansol failed to
consider such anomaly while rejecting the discharge application
preferred by the petitioners.
17. Thus, the array of the allegations made by the opposite party no. 2
has been found to be utterly baseless and the charge sheet submitted by
the investigating agency has depicted the same. The statement of the
opposite party no. 2 under Section 164 of the Code of Criminal
Procedure, 1973 itself is sufficient to establish her mala fide intention to
falsely implicate the petitioners. The Learned Magistrate, too, failed to
consider the aforementioned facts and circumstances and rejected the
discharge application of the petitioners by passing a non speaking order,
without application of judicious prudence. Cumulatively, the
aforementioned facts are sufficient to warrant the quashing of the instant
proceedings in favour of the petitioners herein.
18. In spite of due service there is no representation on behalf of the
opposite party no. 2.
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19. Ms. Rita Dutta, learned counsel for the State has placed the case
diary.
20. Considering the materials on record and the case diary, the
following facts are before this Court:-
i) In the written complaint, it has been stated that the opposite
party no. 2 lived with her husband in a joint mess with the
petitioners, since her marriage on 30.11.2006.
ii) During that period she was allegedly tortured and her brother
in law allegedly made sexual advances.
iii) A son was born on 20.12.2008.
iv) Her husband committed suicide on 07.12.2013.
v) It is stated in the written complaint that after that till 2015 she
was allegedly tortured and sexual advances were made towards
her by her brother in law.
vi) They allegedly tried to kill her with threat to give up her right in
the family property.
vii) She was allegedly driven out from her matrimonial home on
25.01.2015.
viii) The written complaint has been filed on 04.02.2015.
ix) Charge sheet has been filed for offence punishable under
Section 498A/34 of the Indian Penal Code.
21. The most relevant material/document/evidence in this case is
the statement under Section 164 of the Code of Criminal Procedure
of the complainant.
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22. In her statement recorded under Section 164 Cr.P.C, the
complainant has stated as follows:-
i) That as since her marriage she was not liked by the petitioners,
she and her husband left her matrimonial home and started
living in a rented accommodation at Burnpur.
Thus, the statements in her complaint that she lived in
her matrimonial home till 25.01.2015, when she was allegedly
driven out is not prima facie true.
ii) The statement under Section 164 Cr.P.C. giving the reason for
her husband's suicide has also not been stated in the written
complaint.
iii) She has stated that on 14.01.2015 when she went to stay in her
matrimonial home, her brother again tried sexually abuse her.
23. All these statements have not been proved during investigation.
24. The present case against the petitioners is under Sections 498A/34
IPC.
25. Section 498A Indian Penal Code lays down:-
"498A. Husband or relative of husband of a
woman subjecting her to cruelty.--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 purpose 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
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valuable security or is on account of failure by her or
any person related to her to meet such demand.
Ingredients of offence. -- The essential ingredients
of the offence under Sec. 498A are as follows:-
(1) A woman was married;
(2) She was subjected to cruelty;
(3) Such cruelty consisted in--
(i) any wilful conduct as was likely to drive such
woman to commit suicide or to cause grave injury or
danger to her life, limb or health whether mental or
physical;
(ii) harm to such woman with a view to coercing her to
meet unlawful demand for property or valuable security
or on account of failure of such woman or any of her
relations to meet the lawful demand;
(iii) the woman was subjected to such cruelty by her
husband or any relation of her husband."
26. In Kahkashan Kausar @ Sonam & Ors. vs. State of Bihar &
Ors., 2022 LiveLaw (SC) 141, the Supreme Court held as follows:-
"Issue Involved
11. Having perused the relevant facts and contentions
made by the Appellants and Respondents, in our
considered opinion, the foremost issue which requires
determination in the instant case is whether allegations
made against the in-laws Appellants are in the nature of
general omnibus allegations and therefore liable to be
quashed ?
12. Before we delve into greater detail on the nature
and content of allegations made, it becomes pertinent to
mention that incorporation of section 498A of IPC was
aimed at preventing cruelty committed upon a woman
by her husband and her in-laws, by facilitating rapid
state intervention. However, it is equally true, that in
recent times, matrimonial litigation in the country has
also increased significantly and there is a greater
disaffection and friction surrounding the institution of
marriage, now, more than ever. This has resulted in an
increased tendency to employ provisions such as 498A
IPC as instruments to settle personal scores against the
husband and his relatives.
13. This Court in its judgment in Rajesh Sharma and
Ors. Vs. State of U.P. & Anr; (2018) 10 SCC 472, has
observed:-
"14. Section 498-A was inserted in the statute with the
laudable object of punishing cruelty at the hands of
husband or his relatives against a wife particularly
when such cruelty had potential to result in suicide or
murder of a woman as mentioned in the statement of
Objects and Reasons of the Act 46 of 1983. The
expression 'cruelty' in Section 498A covers conduct
which may drive the woman to commit suicide or cause
grave injury (mental or physical) or danger to life or
harassment with a view to coerce her to meet unlawful
demand. It is a matter of serious concern that large
number of cases continue to be filed under already
referred to some of the statistics from the Crime Records
Bureau. This Court had earlier noticed the fact that most
of such complaints are filed in the heat of the moment
over trivial issues. Many of such complaints are not
bona fide. At the time of filing of the complaint,
implications and consequences are not visualized. At
times such complaints lead to uncalled for harassment
not only to the accused but also to the complainant.
Uncalled for arrest may ruin the chances of settlement."
14. Previously, in the landmark judgment of this court in
Arnesh Kumar Vs. State of Bihar and Anr; (2014) 8
SCC 273, it was also observed:-
"4. There is a phenomenal increase in matrimonial
disputes in recent years. The institution of marriage is
greatly revered in this country. Section 498-A IPC was
introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband
and his relatives. The fact that Section 498-A IPC is a
cognizable and non-bailable offence has lent it a
dubious place of pride amongst the provisions that are
used as weapons rather than shield by disgruntled
wives. The simplest way to harass is to get the husband
and his relatives arrested under this provision. In a
quite number of cases, bed- ridden grandfathers and
grand-mothers of the husbands, their sisters living
abroad for decades are arrested."
15. Further in Preeti Gupta & Anr. Vs. State of
Jharkhand & Anr; (2010) 7 SCC 667, it has also been
observed:-
"32. It is a matter of common experience that most of
these complaints under section 498A IPC are filed in the
heat of the moment over trivial issues without proper
deliberations. We come across a large number of such
complaints which are not even bona fide and are filed
with oblique motive. At the same time, rapid increase in
the number of genuine cases of dowry harassment are
also a matter of serious concern.
33. The learned members of the Bar have enormous
social responsibility and obligation to ensure that the
social fiber of family life is not ruined or demolished.
They must ensure that exaggerated versions of small
incidents should not be reflected in the criminal
complaints. Majority of the complaints are filed either on
their advice or with their concurrence. The learned
members of the Bar who belong to a noble profession
must maintain its noble traditions and should treat
every complaint under section 498A as a basic human
problem and must make serious endeavour to help the
parties in arriving at an amicable resolution of that
human problem. They must discharge their duties to the
best of their abilities to ensure that social fiber, peace
and tranquility of the society remains intact. The
members of the Bar should also ensure that one
complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint
the implications and consequences are not properly
visualized by the complainant that such complaint can
lead to insurmountable harassment, agony and pain to
the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth
and punish the guilty and protect the innocent. To find
out the truth is a herculean task in majority of these
complaints. The tendency of implicating husband and all
his immediate relations is also not uncommon. At times,
even after the conclusion of criminal trial, it is difficult to
ascertain the real truth. The courts have to be extremely
careful and cautious in dealing with these complaints
and must take pragmatic realities into consideration
while dealing with matrimonial cases. The allegations of
harassment of husband's close relations who had been
living in different cities and never visited or rarely
visited the place where the complainant resided would
have an entirely different complexion. The allegations of
the complaint are required to be scrutinized with great
care and circumspection.
36. Experience reveals that long and protracted criminal
trials lead to rancour, acrimony and bitterness in the
relationship amongst the parties. It is also a matter of
common knowledge that in cases filed by the
complainant if the husband or the husband's relations
had to remain in jail even for a few days, it would ruin
the chances of amicable settlement altogether. The
process of suffering is extremely long and painful."
16. In Geeta Mehrotra & Anr. Vs. State of UP &
Anr; (2012) 10 SCC 741, it was observed:-
"21. It would be relevant at this stage to take note of an
apt observation of this Court recorded in the matter of
G.V. Rao vs. L.H.V. Prasad & Ors. reported in
(2000) 3 SCC 693 wherein also in a matrimonial
dispute, this Court had held that the High Court should
have quashed the complaint arising out of a matrimonial
dispute wherein all family members had been roped into
the matrimonial litigation which was quashed and set
aside. Their Lordships observed therein with which we
entirely agree that:
"there has been an outburst of matrimonial dispute in
recent times. Marriage is a sacred ceremony, main
purpose of which is to enable the young couple to settle
down in life and live peacefully. But little matrimonial
skirmishes suddenly erupt which often assume serious
proportions resulting in heinous crimes in which elders
of the family are also involved with the result that those
who could have counselled and brought about
rapprochement are rendered helpless on their being
arrayed as accused in the criminal case. There are
many reasons which need not be mentioned here for not
encouraging matrimonial litigation so that the parties
may ponder over their defaults and terminate the
disputes amicably by mutual agreement instead of
fighting it out in a court of law where it takes years and
years to conclude and in that process the parties lose
their "young" days in chasing their cases in different
courts." The view taken by the judges in this matter was
that the courts would not encourage such disputes."
17. Recently, in K. Subba Rao v. The State of
Telangana, (2018) 14 SCC 452 it was also observed
that:-
"6. The Courts should be careful in proceeding against
the distant relatives in crimes pertaining to matrimonial
disputes and dowry deaths. The relatives of the
husband should not be roped in on the basis of omnibus
allegations unless specific instances of their involvement
in the crime are made out."
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."
And finally the court held:-
"22. Therefore, upon consideration of the relevant
circumstances and in the absence of any specific role
attributed to the accused appellants, it would be unjust
if the Appellants are forced to go through the tribulations
of a trial, i.e., general and omnibus allegations cannot
manifest in a situation where the relatives of the
complainant's husband are forced to undergo trial. It
has been highlighted by this court in varied instances,
that a criminal trial leading to an eventual acquittal also
inflicts severe scars upon the accused, and such an
exercise must therefore be discouraged."
27. Thus from the materials on record it is clearly evident that the
statement of the complainant in her petition of complaint is in total
contradiction to her statements recorded under Section 164 Cr.P.C. The
materials on record including the statement of the complainant under
Section 164 Cr.P.C. clearly show that the opposite party/wife never
resided with the petitioners and thus the question of being inflicted with
cruelty as defined/laid down under Section 498A IPC does not arise. The
ingredients required to constitute the said offence is not present in the
present case.
28. It is thus seen that the materials in the case diary and the charge
sheet there in, do not prima facie make out a case of cognizable offence
against the accuseds/petitioners as alleged and there is no materials for
proceeding against the accuseds/petitioners towards trial and this is a fit
case where the inherent power of the court should be exercised to
prevent abuse of process of Court/law.
29. The ultimate test therefore, is whether the allegations have any
substance (Prakash Singh Badal Vs State of Punjab, AIR 2007 SC
1274).
30. In the Present case there is no substance in the allegations and no
material exists to prima facie make out the complicity of the petitioners
in a cognizable offence and as such the proceedings in this case is liable
to be quashed.
31. CRR 261 of 2020 is thus allowed.
32. The proceedings in GR Case No. 254 of 2015 presently pending
before the Learned Judicial Magistrate, 2nd Court, Asansol, Paschim
Bardhaman, arising initially out of Hirapur Police Station Case No. 28
of 2015 dated 04.02.2015 under Sections
498A/406/325/307/376/511/120B/34 of the Indian Penal Code,
1860, and Asansol Women Police Station charge sheet no. 149/15
dated 31.07.2015 under Sections 498A/34 of the Indian Penal Code,
are hereby quashed.
33. No order as to costs.
34. All connected Applications stand disposed of.
35. Interim order if any stands vacated.
36. Copy of this judgment be sent to the learned Trial Court forthwith
for necessary compliance.
37. Urgent Photostat Certified copy of this Judgment, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.
(Shampa Dutt (Paul), J.)
