Sri Kaushik Roy vs The State Of West Bengal & Anr
2023 Latest Caselaw 1745 Cal

                                          1


                 IN THE HIGH COURT AT CALCUTTA
                   Criminal Revisional Jurisdiction
                            Appellate Side


Present: -         Hon'ble Mr. Justice Subhendu Samanta.
                              CRR 3347 of 2018
                                     With
                            IA No. CRAN 3 of 2019
                         (Old No. CRAN 4432 of 2019)

                              Sri Kaushik Roy
                                     Vs.
                       The State of West Bengal & Anr.



       For the petitioner             :       Mr. Atis Kumar Biswas,
                                              Mr. Soumyajit Bhatta,
                                              Mr. Zahid Ali Khan,
                                              Mr. Amit Singh,
                                              Ms. Jyoti Agarwal

       For the opposite party         :       Mr. Jayanta Narayan Chatterjee,
                                              Ms. Moumita Pandit,
                                              Ms. Punita Sinha,

       For the State                  :       Mr. Narayan Prasad Agarwala,
                                              Mr. Pratick Bose,


       Judgment on                    :       16-03-2023


     Subhendu Samanta, J.

This is an application under Section 401 read with Section 482 of the

Criminal Procedure Code for quashing of a criminal proceeding being,

Baguiati P. S. Case No.05 of 2018 dated 3.1.2018 correspondening to G.R. 54

of 2018 wherein charge-sheet has been submitted under Sections

498A/406/34 of the Indian Penal Code.

The brief facts of the case is that the marriage between the present

petitioner and the opposite party no.2 was solemnised on 18.7.2014

according to Hindu Rites and Customs. Their marriage was duly

consummated and out of wedlock between the parities one male child was

born. The matrimonial disputes cropped up between them. The opposite

party no.2 is a school teacher who started residing at her father's house

which is nearer to her school. The petitioner had a job at abroad and he left

India in the middle of 2016 and returned to India in the year 2018. After

returning he found different criminal proceeding was initiated against him

and his parents by the present opposite party no.2. It is further fact of the

petitioner that the opposite party no.2 started residing separately since the

year 2015 and after three years he lodged the instant complaint with the

concerned police station with some vague and frivolous allegations. It is the

argument of the present petitioner that from the plain reading of the FIR, it

would be revealed that the present petitioner was residing at her father's

house since her pregnancy period according to the advice of the Doctor. The

allegation of torture was never properly stated in the complaint and the

allegation of illegal and forceful detention of the Streedhan articles by the

present petitioner was also not substantiated. The specific date when the

Streedhan articles were demanded by the wife and not returned by the

petitioner was also not mentioned.

It is the further argument of the petitioner that the police has

conducted investigation of this case in a slip shod manner. The police could

not find any materials against the present petitioner but they have submitted

charge-sheet. During the course of investigation, all the Streedhan articles

were seized by the police authority and it was given in Zimma to the opposite

party no.2. He further pointed out that learned Magistrate without going

through the police repot and though there is no prima facie case made out

against the present petitioner taken the cognizance of the offence and issued

the process. Hence this revisional application.

Learned advocate for the State submits that the investigation of the

police ended in charge-sheet. During the course of investigation police has

seized Streedhan articles from the house of the petitioner and handed them

over to the opposite party no.2 as Zimmadar. Police has also collected the

evidences including the statement of available witnesses on the basis of

which the charge-sheet has been submitted. This is the initial stage of

criminal proceeding at this juncture, the criminal case cannot be quashed.

Heard the learned advocate; perused the materials on record also

perused the documents filed by the petitioner along with the petition.

Perused the case diary and the Memo of Evidences submitted by the

Investigating Agency. On perusal of the instant FIR, it appears that the

opposite party no.2 has filed this FIR with the I.C., Baguiati P.S. on 3.4.2018,

the FIR stated about torture of present petitioner and his parents upon the

de facto complainant both physically and mentally. It has been also alleged

that she was denied medical assistance during pregnancy as per her Doctor's

advice and also as per their mutual consent she started to reside at her

father's house.

Truly, the allegation of physical and mental torture is not specified in

the petition of complaint. She was admittedly not driven out from her

matrimonial home.

It is also admitted that she was residing at her father's house on

mutual consent. On the basis of such allegation the police conducted

investigation and during the course of investigation the statement of mother,

father and the uncle of the de facto complainant was recorded under Section

161 of the Code of Criminal Procedure. The allegation of physical and mental

torture in the statement of available witnesses are general and also omnibus

in nature.

No medical document was collected by the police during the course of

investigation regarding alleged torture so inflicted upon the de facto

complainant at her matrimonial home. Let me consider whether on the basis

of the attending facts and circumstances, the allegation under Section 498A

has been made out or not.

Section 498A of IPC read as follows:

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

cruelty-whoever, begin 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 demand."

The definition of cruelty has specifically pointed out in Section 498A

itself. The ingredients of cruelty as described under Section 498A IPC is

not actually attributed in this case. There is no allegation of demand of

dowry in this case; no substantial evidence has been collected by the

police regarding harassment allegedly inflicted by the in laws is of such

nature which can drive the married woman to commit suicide.

Considering the facts and circumstances, I am of the view the

offence punishable under Section 498A IPC is not at all prima facie made

out against the present petitioner.

The Section 406 IPC described a punishment for criminal breach of

trust. The criminal breach of trust is defined under Section 405 of IPC as

follows:

"405. Criminal breach of trust.- Whoever, being in any manner

entusted with property, or with any dominion over property, dishonestly

misappropriates or converts to his own use that property, or dishonestly

uses or disposes of that property in violation of any direction of law

prescribing the mode in which such trust is to be discharged, or of any legal

contract, express or implied, which he has made touching the discharge of

such trust, or wilfully suffers any other person so to do, commits 'criminal

breach of trust'."

To made out an offence under Section 406 IPC there are certain

ingredients there:

A. Mens rea from the inception.

B. The accused was entrusted with the property or domain over it.

C. There must be mis-appropriation or conversation to one own's use

for violation of a legal direction or of any legal contract.

D. Accused dishonestly misappropriate or dispose of that property.

In this particular case it has been alleged by the de facto complainant

that her Streedhan articles have been illegal and forcefully held by the

present petitioner and other in laws and they are not returning the same as

and when asked by her. The allegation does not mentioned any particular

date or even when she demanded the return of her Streedhan articles and

when it was denied by the accused persons to return the same.

This is the fact of this case that during the marriage the present

petitioner has gifted some articles, which she kept at her matrimonial house

where she actually resides just after marriage. Consequently, the articles

were kept at her in law's house under the guidance of herself as well as her

in laws. Subsequently, the matrimonial relation became worse and she left

her matrimonial home. No specific allegation was made in this case that any

particular Streedhan articles was mis-appropriated by any of the in laws or

petitioner at any point of time. The basic ides for the offence enumerated

under Section 406 IPC is the mens rea from its inception. It cannot be said

that from the initial stage of marriage the present petitioner or in laws of the

de facto complainant had any intention to retain those Streedhan articles

with them. More over in this case, the de facto complainant actually initiate

the instant proceeding to recover her Streedhan articles.

During the course of investigation police has recovered huge Streedhan

articles and it was kept in Zimma with the de facto complainant. Thus, it

appears that the purpose of the petitioner to initiate the criminal case has

materialised.

The ingredients of the offence punishable under Section 406 IPC also

appears to be not at all made out in this case against the present petitioner.

Hon'ble Supreme Court in State of Hariyana Vs. Bhajan Lal (AIR 1992

SC 604) has formulated some guidelines wherein the High Court can exercise

its inherent power to quash a criminal proceeding. In paragraph 108 of the

same citation it has been enumerated that 108(1).

"1. Where the allegations made in the First Information Report or the

complaint, even if they are taken at their fact value and accepted in the

entirety do not prima facie constitute any offence or make out a case against

the accused."

In considering the same, it appears that if the allegation in the FIR in

this particular case if taken to be true, and also if the evidence collected by

the police during the course of investigation is not at all altered during the

trial; the offence against the present petitioner under Section 498A/406 IPC

cannot be proved beyond reasonable doubt. The instant criminal proceeding

pending before the learned Court below if allowed to be continued, it would

either abuse the process of the Court or otherwise the ends of justice would

be frustrated.

Considering the entire circumstances and the considering the

materials on record, I find there are merit to entertain the instant criminal

revisional application. This is a fit case wherein inherent power of the high

can be exercise to quash the criminal proceeding.

In result thereof, the criminal revisional application is allowed. The

criminal proceeding being Baguiati P.S. Case No.05 of 2018 dated 3.1.2018

corresponding to G.R. 54 of 2018 under Section 498A/406/34 IPC pending

before the learned Chief Judicial Magistrate, Barrackpore and connected

proceeding if any is hereby quashed.

Accordingly, CRR 3347 of 2018 is disposed of.

Connected pending CRAN application, if any, is consequently disposed

of.

Any order of stay passed by this Court during the pendency of the

instant criminal application is hereby also vacated.

Urgent Photostat certified copy of this order, if applied for, be given to

the parties, upon compliance of necessary formalities.

(Subhendu Samanta, J.)