Prasenjit Maity & Ors vs State Of West Bengal & Anr
2023 Latest Caselaw 1780 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL REVISIONAL JURISDICTION
                            (APPELLATE SIDE)


 Present:
 The Hon'ble Justice Rai Chattopadhyay


                            C.R.R No. 2082 of 2016

                              Prasenjit Maity & Ors.
                                        Vs.
                           State of West Bengal & Anr.


     For the Petitioners                 : Mr. uday Sankar Chattopadhyay,


 For the defacto complainant             : Mr. Jayanta Banerjee,
                                         : Ms. Ruxmini Basu Roy.


 For the State                           : Mr. Saswata Gopal Mukherjee,
                                                                 Ld. P.P.
                                         : Mr. Imran Ali,
                                         : Ms. Debjani Sahu.


 Hearing concluded on: 17/01/2023

 Judgment on: 17/03/2023


 Rai Chattopadhyay, J.

1. Petitioners in this case are husband and the in-laws of the

opposite party No. 2/wife, who are aggrieved due to filing of the FIR

against them by the opposite party No. 2/defacto complainant and

initiation of the prosecution against them on the basis of the said FIR.

2. At the instance of the opposite party No.2/defacto complainant,

Sonarpur Police Station case No.1109 of 2016 dated 16. 05. 2016 was

lodged. The case was lodged under sections 498A/354D/34 of the

Indian Penal Code and section 3 (x) (xii) (xv) of the Scheduled Caste

and the Scheduled Tribe (Prevention of Atrocities) Act, 1989. The

connected case is G.R. case No. 3905 of 2016, which is now pending

in the court of Additional Chief Judicial Magistrate, Baruipur, South

24 Parganas.

3. Upon perusal of the three pages long first information report

the following may inter alia be found:

The opposite party No. 2/defacto complainant is an employee

under the West Bengal government and is engaged at Ghutiary Sharif

B.P.H.C. She was introduced with the petitioner No.1 through the

social media (Facebook) on November 21, 2014. Later on, at the

intervention and with constant of all the family members of both, she

was married to the petitioner No.1, on January 26, 2015. She states

that she belongs to a caste considered to be lower in societal strata,

than that of the petitioner No.1 and that the said fact was disclosed to

the petitioner No.1 and his family members, at the very outset, to

avoid any kind of misunderstanding as regards the difference of caste

between them. She has stated that all the petitioners had accepted the

fact of her belonging to a caste considered to be lower than that of the

petitioners and had disclosed that they would have no inhibition

regarding difference of caste etc. The defacto complainant has

asserted in the first information report that, after marriage she resided

in her matrimonial home till March 9, 2016. Thereafter, allegedly, she

was forcefully driven out by the petitioners from her matrimonial

home, on March 10, 2016. She says that she has been subjected to

torture and cruelty perpetrated upon her collectively by all the

petitioners. That she was threatened with dire consequences while

being driven out from her matrimonial home.

4. The defacto complainant has further alleged that in spite of

knowing and accepting about her belonging to a caste not at par with

them, she has been repeatedly humiliated by the petitioners with

abuse and stigma of being hailing from one relatively lower caste.

Allegedly her parents-in-law perpetrated mental torture to her by

declining to accept food from her, on this ground. She has stated that

the entire time which she used to spend in her matrimonial home was

marred with abuse and humiliation on her belonging to a separate

and inferior caste. She has alleged of always been isolated on this

ground alone, be it from using the common kitchen or common

washroom or even common source of water. Even then she was forced

to do all the household works alone, without assistance of any

domestic help. The defacto complainant has narrated that she had to

attend her workplace only after completion of all the domestic works

and otherwise not. According to her, even thereafter, the entire

household was used to be purified with sprinkles of Ganga water as

she herself has done the entire household work. She says that such

kind of severe torture caused her mental collapse. Her husband has

been alleged of supporting the other petitioners, who allegedly

collectively behaved in the manner with her, as narrated above.

Against the husband/petitioner No.1 the defacto complainant has

other specific allegations also. She says that her husband used to take

her indecent photographs, without her consent and forcefully. She

was allegedly threatened and blackmailed that in the event of a raising

any protest to whatever behaviour she has been subjected to by the

other members of the family, the husband would upload all the said

indecent photographs to the social media for the purpose of its wide

circulation to diminish her prestige and modesty. The defacto

complainant has even alleged against the husband regarding

circulating such indecent photograph of herself to his friends.

Allegedly she was even threatened to be humiliated openly and also

that her life was at stake. She has stated that she has also been

subjected to physical torture and threat of assault by the husband,

which would always be supported by the other petitioners. The defacto

complainant has said that thrice she was driven out from her

husband's abode by the petitioners, though her matrimonial life was

restored each time, at the instance of her father. According to her,

even her father was abused by her father-in-law on the ground of

hailing from a lower caste.

5. The defacto complainant has also alleged that all the

humiliations she endured with the hope of sustenance of the

marriage. She has further stated that all her salary, passbook,

cheque-book and ATM card were taken over by the husband. She was

forced to pay for the electric bill and purchases for he family. She was

also forced to provide cash amount of money to her husband as well

as father-in-law. According to her the mental and physical torture and

also severe abuse on the ground of her belonging to a lower caste, had

become unbearable. That, when she was driven out from her

matrimonial home, all her "streedhan" properties were taken away

from her by the petitioners. She has been threatened to be murdered

if any day she would return to her matrimonial home. Allegedly the

husband has not taken care of her whereabouts and severed all

contacts.

6. The defacto complainant has further alleged, specifically

against the husband/petitioner No.1 of circulating indecent,

superimposed photographs of her to undermine her social prestige.

Another incident of May 1, 2016, has been alleged by the defacto

complainant in the first information report that the husband along

with his friends came to her paternal home to threat them to murder

as well as spread social abuse against them, by circulating those

indecent photographs. Pertinent to note that the defacto complainant

has asserted about her knowledge regarding the 1989 Act and sought

protection under the said statute.

7. Mr. Uday Sankar Chattopadhyay who has appeared and

represented the petitioners in this case has strongly argued that the

present first information report is an outcome of malice of the defacto

complainant who intends only to wreck vengeance against the

petitioners and nothing else. According to Mr. Chattopadhyay the first

information report has been dramatically drafted incorporating certain

untrue facts to cover up the matrimonial disharmony between the

parties. Mr. Chattopadhyay would refer to the settled provision of law

that unless the FIR is eloquent about a cognizable offence being made

out against the accused persons, the same would not be allowed to be

proceeded with and in that case the same would render only the

abuse of the process of court.

8. Mr. Chattopadhyay has referred to an earlier police case lodged

by the husband/petitioner No.1, being Sonarpur police Station Case

No.933 of 2016 dated 01.05.2016, under sections 341/325/497/506

of the Indian Penal Code. Mr. Chattopadhyay has pointed out that the

amorous lifestyle of the opposite party No.2, her illicit extramarital

relationships, had compelled the petitioner No.1 to lodge the said

case, much prior to lodging the present case by the opposite party

No.2. It has been submitted that the said case lodged by the petitioner

no.1 has resulted into filing of a charge sheet by police. A photocopy of

the charge sheet has also been handed over to the court during the

course of argument. Thus Mr. Chattopadhyay has deducted firstly

that the materials as regards the offence alleged in the other case

against the defacto complainant, are already on record and also that

the instant criminal case lodged by the defacto complainant/opposite

party No.2 is nothing but only a counter blast of the earlier case

against her by the present petitioner No.1 and a result of malice and

vengeance.

9. So far as the allegations made in the first information report by

the defacto complainant against the petitioner, Mr. Chattopadhyay

would submit that none of the ingredients of offence as alleged against

the petitioner could be found present in the same. According to him

the allegations made therein, even if are taken on their face value

would not make out a case against his clients. He has specifically

pointed out that the first information report is silent and nonspeaking

regarding any offensive act to have happened within the public view,

as envisaged in the 1989 Act.

10. During his argument Mr. Chattopadhyay has relied on the

following judgments:

(i) Pramod Suryabhan Pawar vs State of Maharashtra & Anr., reported in (2019) 9 SCC 608;

(ii) B. Venkateshwaran and Ors. vs. P. Bakthavatchalam, reported in 2023 SCC Online SC 14.

11. In Pramod's (supra) case, while considering the applicable

provisions of law, the Hon'ble Supreme Court has been pleased to

hold that the available specific materials, like the WhatsApp messages

sent or the alleged words to have been spoken, would constitute the

offence under the strict provisions of the Scheduled Caste and the

Scheduled Tribe (Prevention of Atrocities) Act, 1989. By relying on the

same it has been submitted that unless the charges made against the

petitioners satisfy the ingredients of offence, as alleged with the help

of any such specific material, the prosecution should not be allowed to

be proceeded with.

12. In the judgment of B. Venkateshwaran (supra), the Hon'ble

Supreme Court has deprecated any private civil dispute between the

parties to be converted into a criminal proceeding by invoking false

accusations and wrong provisions of law. There the Hon'ble court has

quashed the criminal proceedings being unable to find any ingredient

of offence as alleged against the accused persons. According to Mr.

Chattopadhyay in this case also, the defacto complainant has

converted her matrimonial dispute into a proceeding under the rigours

of the Scheduled Caste and the Scheduled Tribe (Prevention of

Atrocities) Act, 1989. As such, he says that the same should not be

allowed to prevail. Mr. Chatterjee has prayed for an order quashing

the entire criminal proceeding against the present petitioners.

13. To the contention and prayer of the petitioners regarding non-

maintainability of the criminal proceedings and quashing of the same,

vehement objections have been raised on behalf of the opposite party

No.2/defacto complainant/wife. It is submitted that the first

information report is enough eloquent to suggest the ingredients of

offence and a cognizable case against the petitioners. It has been

pointed out that the defacto complainant has categorically contended

in the same regarding her being subjected to severe humiliation and

abuse on the ground of her belonging to a caste considered to be not

at par with that of the petitioners. It has further been submitted that

the FIR has well narrated as to how the defacto complainant has been

subjected to cruelty in her matrimonial life. Specific allegations have

been made against the petitioners to suggest their individual role in

perpetrating severe violation of mental serenity of the defacto

complainant. By referring to the first information report, it has been

pointed out that how a coordinated and collaborated effort of all the

petitioners have caused such trauma to the defacto complainant.

14. To controvert the argument made on behalf of the petitioners,

Mr. Jayanta Banerjee representing the defacto complainant/opposite

party No.2 has submitted that mere pendency of a previous police

case or the same having culminated into filing of a charge sheet by

police, would not render the present case as not maintainable, insofar

as in the present one the defacto complainant has exhaustively and

categorically brought on record the ingredient of offence, which she

alleges against the petitioners. It is pointed out that while exercising

power under section 482 CrPC, this court would look into as to

whether the first information report speaks about presence of the

ingredients of offence alleged, at least prima facie. It has further been

pointed out that in that case, the court would be slow in interfering

with the same. Hence, according to Mr. Banerjee, as in this case the

FIR has amply indicated about presence of such ingredients, there

would not be any necessity for this court to invoke its inherent power

under section 482 CrPC and quash the same, as prayed for by the

petitioners.

15. The following judgment has been referred to, on behalf of the

opposite party No.2: Swaran Singh and Ors. vs. State through

Standing Counsel & Anr., reported in (2008) 8 SCC 435. In the same

the Hon'ble Apex Court has held that an offence if happened in a lawn

outside the house and bounded by wall, would be considered to have

happened at a place within the public view, as envisaged in the

Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities)

Act, 1989. By referring to the same it has been submitted that the

arguments advanced on behalf of the petitioners that the alleged

offence cannot be said to have happened within the public view as per

the 1989 act shall not be tenable insofar as according to the first

information report the defacto complainant has been subjected to

abuse in the name of her caste, even at the open spaces of her

matrimonial home and not only under the roof thereof. According to

Mr. Banerjee the present case filed by the petitioners is liable to be

dismissed.

16. The rancour between the parties have arose in their

matrimonial life and not for enmity for any other reason. The parties

were introduced to each other on November 21, 2014 and were

married on January 26, 2015. On March 9, 2016, the defacto

complainant was allegedly driven out from her matrimonial home and

since then she was living separately from her husband and other in-

laws. On May 1, 2016, the petitioner No.1 lodged a criminal case

against the present opposite party No.2. Within a short period of time

from there, the present case was lodged by the opposite party No.

2/defacto complainant on May 16, 2016.

17. The argument on behalf of the petitioners has mainly been

concentrated regarding application of the provisions under the

Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities)

Act, 1989, in this case. It has been urged that dispute, if any, between

the parties is purely civil in nature, that is, there exists matrimonial

discord, disharmony and dispute between them. Bringing the

provisions under the 1989 act in this case of matrimonial dispute has

been controverted on the ground that its application is only malicious,

motivated and revengeful.

18. It would be beneficial for the sake of discussion to look to the

Statement of Objects and Reasons accompanying the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989,

when it was introduced in Parliament, sets out the circumstances

surrounding the enactment of the said Act and points to the evil

which the statute sought to remedy. In the Statement of Objects and

Reasons it is stated: -

"Despite various measures to improve the socio-economic condition of the Scheduled Castes and Scheduled Tribes, they remain vulnerable. They are denied number of civil rights and are subjected to various offences, indignities, humiliations and harassment. They have, in several incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.

When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes

and Scheduled Tribes. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes, has, therefore, become necessary."

19. It is therefore clearly evident that the object for which this

specific statute was promulgated was to achieve social justice for the

downtrodden scheduled castes and tribes, who were subjected to

societal injustice being marked as untouchables and being kept

isolated from the mainstream of the society. The greater the menace

was, so stringent was the provisions and punishments made in the

said piece of legislation. Thus the scope and application of the Act of

1989, rests on absolutely exclusive and distinct pedestal, than for

redress of any dispute between two individuals or entities, relating to

their matrimony. In the case of B. Venkateshwaran (supra), that relied

on by the petitioners, the Hon'ble Apex Court has been stern and firm

against any private civil dispute between the parties being converted

into a criminal proceedings by wrong application of the provisions of

this specific statute.

20. Pertinent to note that though alleging about the petitioners

subjecting her with abusive and undermining languages pointing out

to her caste, the defacto complainant has not mentioned in the first

information report any specific comment, which might have been

hurled against her, as alleged. Therefore, though the defacto

complainant has several times mentioned about her being targeted for

abuse on the ground of her caste, she has left the same to be non-

specific one, having not mentioned as to the specific language of

humiliation or abuse in the name of her caste. In absence of any such

specific mention, the prima facie ingredient of offence cannot be said

to have been laid down in the first information report.

21. Marriage of the parties was not a peaceful one. Opposite party

No. 2/wife started living separately from petitioner No. 1/husband

and her in-laws. There is no dispute to this fact whereas the reason

for the same has been narrated differently by the two parties in their

respective first information reports, as mentioned above. Also in this

first information report, the opposite party No. 2 has expressed her

mind to pursue litigation separately for redress regarding her

matrimonial discord. The reason as to why all these are being

discussed is that existence of matrimonial dispute and absence of any

ingredient of offence as alleged against the petitioners under the

provisions of the Act of 1989 is apparent in this case which would

render the ratio of the decision in B. Venkateshwaran (supra) case to

apply squarely here in this case. It would amount to be a civil case

regarding matrimony of the parties to be converted into a criminal

proceeding, that too, under the stringent provisions of the said specific

statute. Following the ratio of the said judgment, it is held that such

an endeavour is not to be upheld by a Court.

22. At this stage let the relevant provisions of the said Act be

extracted for clarity, which are as follows:

3. Punishments for offences of atrocities.-- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

*****

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

*****

(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;

*****

(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

23. It is worth mentioning that from the four corners of the FIR no

material as to insult of the defacto complainant in a place within

public view would be evident. There are averments regarding

execution of threat to humiliate her openly in the public, but there

can be found no specific material that any such action has already

been undertaken by the petitioners. The defacto complainant has also

alleged of forcefully photographing her in indecent conditions and also

circulation of those through the social media channels by the

petitioner No.1. A specific query as regards the same was made by this

court earlier. The answering forensic report has however clearly

depicted about no fruitful result to have yielded from the examination.

This fact, emanating from the report dated 10.04.2019, prima facie

nullifies wife's claims as such. By alleging the same, the defacto

complainant had tried to make out certain ingredient as to the offence

under section 3 (1) (xii) of the said Act, but in vain, in view of the

report as discussed above. It has already been stated earlier that the

reason as to why the defacto complainant has started living separately

is disputed and there are divergent versions available from the

respective parties. Accordingly it can also not be stated in unequivocal

terms that the present first information report has disclosed any

prima facie material as regards the offence under section 3 (1) (xv) of

the said Act, against the present petitioners.

24. Since lodging of the criminal proceedings against the petitioners

under the other provisions of law, which have been attracted against

them, that is, sections 498A, 354D and 34 of the Indian Penal Code,

has not been disputed in this case, any question or discussion as to

the application of those provisions of law against the present

petitioners in this case, has been kept outside the purview of decision

making process and decision in this revision.

25. From the discussions as made above, it is clearly and

categorically found that in this criminal proceeding the defacto

complainant has not been able to bring on record any material, even

prima facie, against the petitioners regarding any offence under the

Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities)

Act, 1989. Therefore the allegations made in the first information

report have not made out a prosecutable case against the petitioners.

According to the settled provision of law therefore, to proceed against

the petitioners under the provisions of 1989 Act as stated above,

would be an abuse of the process of Court, which is to be prevented in

this case by exercising this court's extraordinary power and inherent

jurisdiction under section 482 CrPC.

26. Hence, this revision being C.R.R 2082 of 2016 succeeds.

27. The proceeding against the petitioners in Sonarpur Police

Station case No.1109 of 2016 dated 16. 05. 2016 (connected GR Case

No. 3905 of 2016) is quashed, so far as the alleged offence under

section 3 (1) (x), (xii) and (xv) is concerned. However the proceeding in

connection with the said first information report under sections 498A,

354D and 34 of the Indian Penal Code shall duly take place in

accordance with law. The trial Court henceforth shall treat the FIR, to

have been lodged under Sections 498A, 354D and 34 of the Indian

Penal Code.

28. Connected application, if any, is also disposed of.

29. Certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

                                        RAI     Digitally signed
                                                by RAI
                                        CHATTOP CHATTOPADHYAY
                                                Date: 2023.03.17
                                        ADHYAY 13:50:08 +05'30'
                                                 (Rai Chattopadhyay,J.)