Calcutta High Court (Appellete Side)
Samita Roy & Anr vs The State Of West Bengal & Anr on 2 May, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 405 of 2019
Samita Roy & Anr.
Vs
The State of West Bengal & Anr.
For the Petitioners : Mr. Mayukh Mukherjee,
Mr. Abhishek Dutt,
Ms. Rupa Singh.
For the State : None.
For the Opposite Party No. 2 : Mr. Ayan Basu,
Mr. Koushik Bhattacharyya,
Mr. Sumit Routh.
Heard on : 20.03.2023
Judgment on : 02.05.2023
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Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for quashing of the
proceeding being Complaint Case No. 41 of 2018 under Sections
323/498A/406/506/34 of the Indian Penal Code, 1860 pending before
the Court of the Learned Judicial Magistrate, First Class First Court at
Barrackpore.
2. The petitioner's case is that the petitioner no. 1 is the mother-in-law of
the opposite party no. 2 and is a septuagenarian and a patient of brain
stroke (transient ischemic attack (TIA)) since last ten years. She is also
suffering from acute Arthritis due to degenerate bone disease, resulting
in severe disability and is mostly moving on wheel chair.
3. The petitioner no. 2 is the unmarried sister-in-law of the opposite party
no. 2. She is an MBA graduate and does not reside at the aforementioned
address on a regular basis as she is on marketing job which involves
extensive travelling from Hyderabad to Delhi, Visakhapatnam, Warangal
and many other places in India.
4. On February 6, 2018 the opposite party no. 2 herein filed a complaint
before the Court of the Learned Additional Chief judicial Magistrate at
Barrackpore [in short the Learned ACJM] therein alleging commission of
offences punishable under Sections 323/498A/406/506/34 of the
Indian Penal Code against vide order dated February 6, 2018 the Learned
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ACJM was pleased to take cognizance and transferred the case to the
Learned Judicial Magistrate, First Court at Barrackpore for disposal.
5. The Learned Trial Magistrate after recording the additional statement
was pleased to issue process.
6. The petitioners state that on June 30, 2013 the opposite party no.2 got
married to the son of the petitioner no.1 (Mr. Prithvish Roy, hereinafter
referred to as Prithvish) according to the Hindu rites and customs. On or
about the first week of July 2013, the couple moved to Hyderabad and
stayed there for about 60 days. Thereafter the couple left for Delhi on
September 02, 2013. The petitioners herein hardly had any occasion to
interact with the opposite party no. 2 who used to stay at a faraway
place. The petitioners therefore never got themselves involved in the
marital life of Prithvish and the opposite party no. 2.
7. On January 6, 2015 on the pretext of attending the marriage of her
brother, the opposite party no. 2 came back to her parental home at
Kolkata. Prithvish also accompanied her and subsequently came back.
The opposite party no. 2 decided to stay back. The opposite party no.2
kept avoiding Prithvish's calls and his attempt to persuade the opposite
party no. 2 to come back failed.
8. Having no other alternative Prithvish filed a petition on 23.06.2015
under Section 9 of the Hindu Marriage Act, 1955 thereby seeking
restitution of conjugal rights which was registered as O.P. No. 465 of
2015.
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9. After waiting for more that 15 months, since Prithvish did not receive any
response from the opposite party no. 2, Prithvish filed an application on
03.09.2016 under Section 13 of the Hindu Marriage Act, 1955 for divorce
before the Court of Learned City Civil Court, Secunderabad, Telangana.
10. Prithvish also lodged a First Information Report with Marredpally Police
Station at Secunderabad on 30th July 2017 which was registered as
Marredpally Police Station Case No. 279 of 2017 dated 7th October 2017
under Section 406 read with Section 409 of the Indian Penal Code.
11. Subsequent to the registration of Marredpally Police Station Case No.
279 of 2017 by Mr. Prithvish Roy, the opposite party no. 2 herein moved
a petition under Section 24 Cr.P.C. before the Hon'ble Supreme Court of
India thereby seeking transfer of the divorce proceedings pending before
the City Civil Court, Secunderabad, Telangana, to the Court of the
Learned District Judge at Alipore which was registered as T.P. (Civil) No.
2241 of 2017. The petitioners state that vide order dated 6th December
2018 the Hon'ble Supreme Court was pleased to issue notice and stayed
the proceedings. The transfer petition is pending adjudication before the
Hon'ble Supreme Court.
12. That as a counterblast to the FIR registered on 7th October 2017 by
Prithvish Roy, the opposite party no. 2 on 6th February 2018
instituted the instant proceedings against the petitioners and
Prithvish on false and frivolous allegations.
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13. Mr. Mayukh Mukherjee, learned counsel for the petitioners has
submitted that the instant proceedings as initiated against the present
petitioners is absolutely baseless, frivolous and displays clear misuse of
the provisions of criminal law and fails to disclose any commission of
offence by the petitioners.
14. The petitioners are completely innocent and in no way connected with
commission of any offence far less the offences alleged.
15. It is further submitted that the ingredients required to constitute the
offences alleged are totally absent and as such in the interest of Justice
the proceedings in this case is liable to be quashed. Supplementary
affidavit has been filed by the petitioners.
16. In the present case, the opposite party has filed a complaint case before
the trial court for offences punishable under Sections
323/498A/406/506/34 IPC.
17. It is stated in the complaint that the marriage was solemnized on
30.06.2013. Valuable gifts were given by her family at the time of
marriage.
18. In December, 2013 the petitioners allegedly demanded a sum of Rs.
4,00,000 as dowry. The accuseds were allegedly not happy with the
articles given in marriage and inflicted mental and physical torture upon
her.
19. The complainant was allegedly not given proper food or clothing and
abused in filthy language and was allegedly driven out of her
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matrimonial home on 06.01.2015, after about one and half year of
marriage.
20. It is further alleged that on 24.12.2017, the petitioners came to house of
the complaint to get a no objection for divorce and assaulted her and her
father, for which the present complaint case has been filed.
21. Affidavit in opposition has been filed by the opposite party denying the
case of the petitioners.
22. Mr. Ayan Basu, learned counsel for the opposite party no. 2 has
submitted that the provision under Section 202 Cr.P.C. has been duly
complied. And that the Magistrate being satisfied has taken cognizance
and issued process on there being prima facie materials on record to
proceed towards trial. As such if there is an interference by this court it
will be against the interest of Justice.
23. 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-
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 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."
24. Section 406 of the Indian Penal Code, lays down:-
"406. Punishment for criminal breach of trust.--
Whoever commits criminal breach of trust shall be
punished with imprisonment of either description for a
term which may extend to three years, or with fine, or
with both.
Ingredients of offence.-- The essential ingredients
of the offence under Sec. 406 are as follows:-
(1) Mens rea is essential ingredient of offence.
(2) There must be an entrustment, there must be
misappropriation or conversion to one's own use,
or use in violation of a legal direction or of any
legal contract.
(3) The accused was entrusted with the property or
domain over it.
(4) He dishonestly misappropriated or converted to
his own use such property;
(5) He dishonestly used or disposed of that property
or willfully suffered any other person to do so in
failure of-
(a) Any direction of law prescribing the mode
in which such trust is to be discharged, or
(b) Any legal contract made touching upon the
discharge of such trust."
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25. In the present case, the husband has filed a prior case at Telengana
on 30.07.2017 (registered as FIR on 07.10.2017) under Section
406/409 IPC on the ground that the complainant took away the
ancestral jewellery of the petitioner's family from the bank locker by
operating it singly without informing the husband. The said case has
ended in Charge Sheet. The complaint in the present case has been
filed on 06.02.2018.
26. In Kahkashan Kausar @ Sonam & Ors. vs. State of Bihar & Ors.,
2022 LiveLaw (SC) 141, on 08th February, 2022, 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."
27. From the materials on record it is prima facie evident that the
"cruelty" as alleged in the present case do not constitute the
ingredients required to constitute the offence under Section 498A
IPC. The ingredients required to constitute the offence of "criminal
breach of trust" under Section 406 IPC is also prima facie not
present in this case against the petitioners. Finally the ingredients
required to constitute the offences under Section 323/506 IPC is
also clearly absent in this case.
28. Thus, it is 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 as
alleged against the accused/petitioner 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.
29. 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 such the proceedings in this case should be
quashed.
30. CRR 405 of 2019 is accordingly allowed.
31. The proceedings being Complaint Case No. 41 of 2018 under Sections
323/498A/406/506/34 of the Indian Penal Code, 1860 pending before
the Court of the Learned Judicial Magistrate, First Class First Court at
Barrackpore, is hereby quashed.
32. No order as to costs.
33. All connected Applications stand disposed of.
34. Interim order if any stands vacated.
35. Copy of this judgment be sent to the learned Trial Court forthwith for
necessary compliance.
36. Urgent Photostat Certified copy of this Judgment, if applied for, be
supplied expeditiously after complying with all necessary legal formalities.
(Shampa Dutt (Paul), J.)
