Calcutta High Court (Appellete Side)

Sri Pralay Kumar Das & Ors vs The State Of West Bengal & Anr on 1 March, 2023

                      IN THE HIGH COURT AT CALCUTTA

                      (Criminal Revisional Jurisdiction)

                              APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                               CRR 3721 of 2019

                         Sri Pralay Kumar Das & Ors.

                                     Vs

                       The State of West Bengal & Anr.




For the Petitioners                 : Mr. Debashis Banerjee,
                                      Mr. Rakesh Jana.



For the State                       : Mr. Arijit Ganguly.



For the Opposite Party No. 2        : None.




Heard on                            : 07.02.2023

Judgment on                         : 01.03.2023
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Shampa Dutt (Paul), J.:




       The present revision has been preferred praying for quashing of

the charge sheet being no. 113/19 dated 31.08.2019 and the

proceedings in connection therewith arising out of Coke Oven Police

Station Case No.     71/19 dated 22.05.2019 pertaining to G.R. No.

773/19, under Section 498A/406/34 of the Indian Penal Code pending

before the learned Additional Chief Judicial Magistrate at Durgapur,

Paschim Bardhaman.


       The petitioner's case is that the opposite party no. 2 is the wife of

the petitioner no. 1 and the petitioner no. 2 is the mother of the

petitioner no. 1, the petitioner no. 3, 4 and 5 are the brother of the

petitioner no. 1 and the petitioner no. 6 is the married sister of the

petitioner no. 1. It is pertinent to mention in this regard that the

petitioner no. 2 that is the mother of the petitioner no. 1 is a lady aged

about 92 years.


       That the petitioner no. 1 got married to the opposite party no. 2

on 19.02.1995 as per Hindu rites and customs and some disputes

cropped up between the petitioner no. 1 and the opposite party no. 2

which resulted in filing of a series of legal proceedings both by the

petitioner no. 1 and the opposite party no. 2 against each other and/or

their family members and admittedly the petitioner no. 1 and the
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opposite party no. 2 are living separately at their respective

residences, since 2010 that is since the last 9 years or more.

However, the petitioner no. 1 and the opposite party no. 2 mutually

decided to settle their disputes permanently.


       In the meantime, the opposite party no. 2 apparently submitted

a petition of complaint under Section 156(3) of the Criminal Procedure

Code before the Court of the learned Additional Chief Judicial

Magistrate at Durgapur on April 10, 2019 being M.P. Case No.

217/2019, and pursuant to directions passed by the learned Court in

the said case the instant criminal proceeding was initiated being Coke

Oven Police Station Case No. 71/19 dated 22.05.2019 pertaining to

G.R. No. 773/19, under Section 498A/406/34 of the Indian Penal Code

as against the petitioners herein.


       The investigating agency has submitted the impugned charge

sheet as against the petitioners in connection with the instant case

being no. 113/19 dated 31.08.2019 under Section 498A/406/34 of the

Indian Penal Code.


       The petitioner no. 1 and the opposite party no. 2 had both

mutually decided to amicably settle their disputes and to that effect the

petitioner no. 1 and the opposite party no. 2 had entered into an

agreement in writing thereby inter alia resolving that the petitioner no.

1 and the opposite party no. 2 would apply for mutual divorce and that
                                       4


the petitioner no. 1 would pay to the opposite party no. 2 a total sum of

Rs. 8,00,000/- (Rupees eight lakhs) as permanent alimony in two

installments and both the parties would withdraw all the pending cases

between them and/or their family members including the instant

criminal proceeding arising out of Coke Oven Police Station Case No.

71/19 dated 22.05.2019          and   in   furtherance   to   aforesaid,   the

petitioner no. 1 and the opposite party no. 2 have filed an

application for mutual divorce under Section 13B of the Hindu

Marriage Act, 1955 before the Court of the learned Additional District

Judge at Durgapur, being Mat Suit No. 568 of 2019.


       It is further submitted by the petitioners that in view of the

amicable settlement so arrived between the parties that is the petitioner

no. 1 and the opposite party no. 2, the pendency of the instant criminal

proceeding is redundant as it would be apparent that the opposite party

no. 2 has filed the petition of complaint out of misunderstanding

between the parties and that the petitioners, none of them, are guilty of

commission of any offence which require any one or all of them to stand

trial in connection with the instant proceeding, which would result in

sheer miscarriage of justice.


       Mr. Debashis Banerjee, learned Counsel for the Petitioners

has submitted that this is a fit case for this Hon'ble Court to invoke its

inherent power conferred upon the Hon'ble Court under Section 482 of
                                         5


the Criminal Procedure Code and to quash the instant criminal

proceeding to prevent misuse of the process of law and for the ends of

justice.


           In spite of due service there is no representation on behalf

of the opposite party no. 2.


           Mr. Arijit Ganguly, learned counsel for the State has placed

the case diary.


           Heard the learned counsel for the petitioner and the State.

Perused the materials on record and the case diary. Considered.


           The following facts are before this Court:-


           (1) On 19.02.1995, the petitioner and the opposite party no. 2

              got married.

           (2) The parties are residing separately since 2015 (allegation in

              petition under Section 156(3) Cr.P.C. of the husband having

              an illicit affair).

           (3) The petitioner returned to her parent's house with her

              daughter at Sagarbhanga, Durgapur in June 2015 (petition

              under Section 156(3) Cr.P.C.).

           (4) The present case has been initiated on 22.05.2019 (after Four

              years) on the basis of a petition under Section 156(3) Cr.P.C.
                                     6


          filed on 10.04.2019 stating that she was assaulted in her

          parent's house by the accused person on 24.03.2019.

       (5) It has been submitted by the petitioner that divorce by

          mutual consent has been effected between the parties and

          therein an undertaking has been given that all other

          proceedings pending before the parties would be withdrawn

          as the dispute between the parties has been settled.

       No document of the divorce as stated is on record.

       The petitioner's case is that she returned to her parent's house

in June 2015.

       No complaint was filed from June 2015 to April 2019 (almost

four years).

       Thereafter allegedly only one incident, on 24.03.2019 took place

as stated by the petitioner, that is the accused persons came to the

complainant's house and assaulted and used slang language.

       The present case has been filed without any medical papers to

substantiate the allegation of assault.

       In the present case charge sheet has been filed within 3 months

from the date of complaint on 31.08.2019.

       Section 498A of the 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 pun-
                                     7


              ished 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.


                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 lawful 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."

       In a case of such nature, the High Court can quash the

proceedings if the Court is convinced that the person is innocent and

falsely implicated. It can also be done if the ingredients of the offence

alleged is not proved (even prima facie). In the present case there is

no materials to show that cruelty as defined under Section 498A

IPC was inflicted upon the petitioner.
                                   8


      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."

It is seen that the materials in the case diary and the charge

sheet therein do not prima facie make out a case of cognizable offence

against any of the accuseds/petitioners 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.

The Charge Sheet and the evidence placed in support thereof,

form the base to take or refuse to take cognizance by the competent

court.

In Ramesh Chandra Gupta vs. State of Uttar Pradesh and

Ors., 2022 LiveLaw (SC) 993, Criminal Appeal No(s). 2060 of 2022

(Arising out of SLP (Crl.) No(s). 39 of 2022), the Supreme Court held:-

"15. This Court has an occasion to consider the ambit and scope of the power of the High Court under Section 482 CrPC for quashing of criminal proceedings in Vineet Kumar and Others vs. State of Uttar Pradesh and Another, (2017) 13 SCC 369 decided on 31st March, 2017. It may be useful to refer to paras 22, 23 and 41 of the above judgment where the following was stated: "22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 CrPC vested in the High Court. Section 482 CrPC saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

23. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 CrPC and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 CrPC. A three-Judge Bench of this Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated :

'7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary

public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.'

41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fides and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 which is to the following effect :

'102. (7) Where a criminal proceeding is manifestly attended with mala fides 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.' Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court

has noted the judgment of State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."

16. The exposition of law on the subject relating to the exercise of the extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 CrPC are well settled and to the possible extent, this Court has defined sufficiently channelized guidelines, to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. This Court has held in para 102 in State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp. (1) 335 as under :

"102. 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 of 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 FIR 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 FIR 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 FIR 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."

17. The principles culled out by this Court have consistently been followed in the recent judgment of this Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, 2021 SCC Online SC 315."

The ultimate test therefore, is whether the allegations have any

substance (Prakash Singh Badal Vs State of Punjab, AIR 2007 SC

1274).

In the Present case there is no substance in the allegations and

no material exists to prima facie make out the complicity of the

applicant in a cognizable offence as alleged and as such the proceedings

in this case should be quashed in the interest of justice.

CRR 3721 of 2019 is thus allowed.

The proceedings in Coke Oven Police Station Case No. 71/19

dated 22.05.2019 pertaining to G.R. No. 773/19, under Section

498A/406/34 of the Indian Penal Code pending before the learned

Additional Chief Judicial Magistrate at Durgapur, Paschim Bardhaman,