Calcutta High Court (Appellete Side)
Malay Saha vs State Of West Bengal & Ors on 9 June, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 1013 of 2020
Malay Saha
Vs.
State of West Bengal & Ors.
For the Petitioner : Ms. Debipriya Mitra,
Ms. Sudakshina Dey.
For the State : Ms. Purnima Ghosh.
For the Opposite Party No. 2 : None.
For the Opposite Party No. 3 : Ms. Manasi Roy.
Heard on : 04.05.2023
Judgment on : 09.06.2023
Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for quashing of the
charge sheet proceedings in Baranagar Police Station case No.472 of 2017
corresponding case number being GR 4149 of 2017 under Sections
498A/406/506/323/34 of the Indian Penal Code pending before the learned
Judicial Magistrate, 5th Court, Barrackpore, North 24 Parganas.
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2. The petitioner's case is that the opposite party no.3 i.e. the proforma
opposite party is a cousin brother of the petitioner residing at 54A,
Gurupada Halder Road, Police Station-Kalighat, Kolkata-700 026.
3. The opposite party no.2 and opposite party no.3 got married to each
other on 20.01.2016 and the petitioner had taken several responsibilities
pertaining to the said marriage.
4. After the said marriage was solemnized, the opposite party no. 2 and
proforma opposite party no. 3 started to reside as husband and wife at
54/A, Gurupada Halder Road, Kolkata-700 026, District-24 Parganas.
5. During this period the petitioner was residing at 1094, Kalikapur
Main Road, Post Office-Mukundapur, Kolkata-700 099 and thus had no
connection with the opposite party no.2 and 3 in any way.
6. Sometime in the month of September, 2016 the opposite party no.3
informed the petitioner that there has been some misunderstanding between
him and the opposite party no.2 and subsequently the opposite party no.2
has left her matrimonial home.
7. The petitioner presuming such dispute by and between the opposite
party no. 2 and 3 as a normal misunderstanding agreed to mediate and thus
talked to the parents of the opposite party no.2 with the intention to resolve
the dispute between the opposite parties as any person of ordinary prudence
would have done.
8. On such intervention by the petitioner, the opposite party no. 2
returned to her matrimonial home at 54/A, Gurupada Halder Road, Police
Station-Kalighat, Kolkata-700 026. Thereafter, again the opposite party nos.
2 and 3 started to lead their conjugal life at 54/A, Gurupada Halder Road,
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Police Station-Kalighat, Kolkata-700 026. The petitioner was neither
involved, nor aware about the conjugal relation between the opposite party
no.2 and the proforma opposite party no.3.
9. On July 2017 the petitioner received a notice under 41(A) of the Code
of Criminal Procedure, 1973 and came to know that the opposite party no.2
had filed a complaint and subsequently a F.I.R has been registered against
the petitioner along with the opposite party no.3 being the husband of the
opposite party no.2 and such FIR was registered under Sections
498A/406/506/323/34 of the India Penal Code. It is stated that the
opposite party no.2 has lodged such F.I.R with malafide intention to harass
the petitioner.
10. The petitioner complied with the notice under Section 41(A) of the
Code of Criminal Procedure, 1973, and met the investigating authorities.
11. Ms. Debipriya Mitra, learned counsel for the petitioner has
submitted that the opposite party no.2 has also preferred a false and
frivolous proceeding under the provisions Domestic Violence Act, 2005.
12. It is submitted that the FIR lodged by the opposite part no.2 is a
result of personal vendetta. The investigating authorities have submitted the
impugned charge sheet without conducting any investigation.
13. That the charge sheet has been submitted by the investigating officer
in connivance with the opposite party no.2.
14. And for that this instant proceeding is liable to be quashed.
15. In spite of due service there is no representation on behalf of the
opposite party no.2.
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16. The opposite party no.1/State is represented through Ms.
Purnima Ghosh.
17. Ms. Manasi Roy has appeared on behalf of the opposite party no.
3.
18. Certified copy of the case diary is placed by the learned counsel for the
State.
19. From the records, it appears that the petitioner has complied with the
notice under Section 41A of IPC.
20. In Arnesh Kumar vs State of Bihar and Anr., Criminal Appeal No.
1277 of 2014, on 2 July, 2014, the Supreme Court laid down the
guidelines regarding arrest in cases where the punishment is less than
seven years of imprisonment. The present case is one such.
21. The petitioner is the cousin of the husband of the defacto
complainant and he allegedly asked for dowry over phone along with
the complainant's husband.
22. 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
valuable security or is on account of failure by her or
any person related to her to meet such demand.
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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."
23. 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."
24. From the materials on record and the case diary more specifically the
written complaint, the only statement against the petitioner is that he
allegedly asked for dowry over phone along with the opposite party no. 3,
husband of the opposite party no. 2/complainant. All the allegations are
against opposite party no. 3, the husband of the opposite party no.
2/complainant. The conduct as alleged by the complainant against the
petitioner in no way constitutes 'cruelty' as defined/laid down under Section
498A IPC. The ingredients required to constitute the said offence is not
present in the present case.
25. 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 accused/petitioner as alleged and there is no materials for
proceeding against the accused/petitioner 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.
26. The ultimate test therefore, is whether the allegations have any
substance (Prakash Singh Badal Vs State of Punjab, AIR 2007 SC
1274).
27. 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.
28. CRR 1013 of 2020 is thus allowed.
29. The proceedings in Baranagar Police Station case No.472 of 2017
corresponding case number being GR 4149 of 2017 under Sections
498A/406/506/323/34 of the Indian Penal Code pending before the
learned Judicial Magistrate, 5th Court, Barrackpore, North 24
Parganas, is hereby quashed.
30. No order as to costs.
31. All connected Applications stand disposed of.
32. Interim order if any stands vacated.
33. Copy of this judgment be sent to the learned Trial Court forthwith
for necessary compliance.
34. Urgent Photostat Certified copy of this Judgment, if applied for, be
supplied expeditiously after complying with all necessary legal formalities.
(Shampa Dutt (Paul), J.)
