Calcutta High Court (Appellete Side)

Sipra Majumdar vs The State Of West Bengal & Anr on 28 March, 2023

                 IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                               CRR 590 of 2019



                              Sipra Majumdar

                                    Vs

                     The State of West Bengal & Anr.




For the Petitioner                : Mr. Avirup Roy Sanyal.




For the State                     : Mrs. Anasuya Sinha,
                                    Mr. Pinak Kumar Mitra.



For the Opposite Party no. 2      : None.




Heard on                          : 27.02.2023

Judgment on                      : 28.03.2023
                                        2


Shampa Dutt (Paul), J.:



1.        The present revision has been preferred praying for quashing of

     the proceedings pending before the Court of Learned Additional Chief

     Judicial    Magistrate,   at   Bidhannagar,   24   Parganas   (North)   in

     connection G.R. Case No. 1084 of 2013 arising out of Lake Town Police

     Station Case No. 334 of 2013 dated 13.12.2013 under Sections

     498A/420 of the Indian Penal Code and the charge sheet therein.

2.        The petitioner's case is that by relation, the petitioner is the

     aunt-in-law of the Opposite Party No. 2 with whom the Opposite

     Party never stayed or shared any household.

3.        The petitioner is innocent of charge brought against her by the

     Opposite Party No. 2 i.e. the de-facto complainant and has been falsely

     implicated in the complaint before the Lake Town Police Station, 24

     Parganas (North) on 13.12.2013, which forms the basis of this case

     and same was registered as Lake Town Police Station Case No. 334 of

     2013 dated 13.12.2013 under Section 498A/406/420 of the Indian

     Penal Code and the same is pending before the Court of Learned

     Additional Chief Judicial Magistrate, Bidhannagar, 24 Parganas

     (North).

4.        In the petition of complaint it has been stated inter alia as

     follows:-

                  "I Debashree Nandi, d/o Indubhusan De,
                  presently residing in Jubani Apt., Flat 101-B, 45
                                      3


                Kampara Lane Dhakuria, Kol - 700 031 got
                married to Dr. Biplap Nandi on 5th May, 2011 and
                consequently the marriage got registered in
                Kolkata (Lake Town). After my marriage my
                husband and his family harassed me mentally
                and physically at my matrimonial home. At the
                same time they harassed me with dowry
                demands. Finally my husband left me at my
                father's place. After my father intervened with my
                husband and my mother-in-law, to solve the
                situation and to continue a peaceful life they
                demanded dowry in return of the continuation of
                our marriage. All my belongings, my gold,
                platinum, diamond, cheque books and other
                expensive articles were under their custody. I
                therefore went to my matrimonial house to retrieve
                the same but I was not only denied entry but also
                physically tortured. My father intervened but he
                was held captive for 3 hours by my
                abovementioned in-laws. They have never kept
                track of my whereabouts. Recently during my
                stay abroad for my higher studies, I received call
                from Sikha Biswas and Mr. Gobinda Biswas, who
                verbally abused me to no limits. They also
                threatened to spoil my life."

5.       Mr. Avirup Roy Sanyal, the learned counsel for the petitioner

     has submitted that the action of the police authorities is malafide,

     arbitrary and illegal. The Opposite Party No. 2 lodged a written

     complaint against the petitioner and the other accused persons stating

     there in that since her marriage to Biplab Nandi, the nephew of the

     petitioner, she has been subjected to mental and physical cruelty by

     the accused. She further stated that she was verbally abused when

     she was staying abroad for her higher studies and that her belongings

     have not been returned. That the accuseds are harassing her by not

     amicably settling the matter.
                                       4


6.         It is further submitted that the initiation of impugned proceedings

      based on the FIR is vague, suffering from non-application of mind by

      the prosecution and suppression of fact. The FIR does not speak of any

      specific description of commission      of offence with the cogent

      particulars thereto.

7.         It is submitted that the impugned proceeding is arbitrary and was

      made with malafide intent and that the continuation of the impugned

      proceeding would be an abuse of process of law, and thereby bad in

      law, inoperative and baseless, and as such liable to be quashed and/or

      dropped.

8.         A Divorce has been effected between the complainant and the

      nephew of the petitioner, Dr. Biplab Nandi on 27.06.2013.

9.         The present complaint has been filed on 13.12.2013.

10.        Inspite of due service there is no representation on behalf of

      the Opposite Party no. 2.

11.        The state has placed the case diary.

12.        The present case in this revision is under Sections 498A/420 of

      Indian penal Code.

13.        From the case diary it is seen that the belongings of the

      Opposite Party no. 2 have been recovered and handed over to the

      Opposite Party No. 2.

14.        Section 498A of the Indian Penal Code, lays down:-
                            5


"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-
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 Section 498A are as follows:-

(1) A woman was married;
(2) She was subjected to cruelty;
(3) Such cruelty consisted in --
   (i) Any willful 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."
                                   6


15.    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."

16. In the present case the petitioner is the Aunt of the husband of

the complainant. The only allegation against her is that she was

verbally abused when she was staying abroad for her higher studies.

And that the accuseds are harassing her by not amicably settling the

matter. The belongings of the complainant have been returned. It is

thus clear from the said facts that the ingredients required to even

prima facie constitute the offence under Section 498A/406 IPC is

clearly absent against the petitioner.

17. It is also 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 and there is no materials for proceeding

against the accused/petitioner towards trial and this is a fit case where