Rajiv Sarkar & Ors vs The State Of West Bengal & Anr
2023 Latest Caselaw 3343 Cal

Form J(1)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Revisional Jurisdiction
                                Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
                         IA No: CRAN/2/2023
                                   In
                          C.R.R. 4175 of 2022
                           Rajiv Sarkar & Ors.
                                   Vs.
                     The State of West Bengal & Anr.

For the petitioners        :Mr. Amarta Ghose, Adv.
                            Mr. Sourav Chatterjee, Adv.
                            Mr. Ayan Bhattacharjee, Adv.
                            Mr. Sharequl Haque, Adv.
                            Mr. Biswajib Ghosh, Adv.
                            Mr. Avirup Chatterjee, Adv.
                            Mr. Souryadeep Ghosh, Adv.
                            Mr. Sumitava Chakraborty, Adv.

For the State              : Mr. P.K.Datta, Adv.
                             Mr. Santanu Deb Roy, Adv.

Heard on                   : 11.05.2023.

Judgment On                : 11.05.2023.

Bibek Chaudhuri, J.

The petitioners have invoked inherent jurisdiction of this Court with a

prayer to quash the criminal proceeding being A.C.626 of 2022 pending

before the learned 5th Judicial Magistrate at Alipore under the charge of

Sections 498A/406/323/506/324/341/427/504/380/447/34/120B of the

Indian Penal Code.

Indisputably marriage of the petitioner No.1 was solemnized with the

opposite party No.2 on 10th August, 2015. At the time of marriage both of

them were declared as divorcees. Within three months of marriage, the

parties started living separately. The opposite party No.2 subsequently filed

Haridevpur Police Station Case No.623 of 2020 dated 25 th December, 2020

under Sections 498A/406/120B of the Indian Penal Code against the

petitioners. During investigation it was ascertained that the opposite party

No.2 had a subsisting marriage with another person at the time of her

marriage with the petitioner No.1. Therefore, police submitted FRT in the

aforesaid Haridevpur Police Station Case No.623 of 2020. The opposite

party No.2 did not file any protest petition against the final report.

Accordingly, the final report was accepted. Subsequently, suppressing all

such fact, the opposite party No.2 lodged a second complaint on the self-

same allegation before the learned Additional Chief Judicial Magistrate at

Alipore which was registered as A.C. 626 of 2022.

It is submitted by the learned Advocate for the petitioners that

marriage of the opposite party No.2 was nullity from its inception. The

competent Civil Court passed a decree declaring the marriage of the parties

a nullity. It is established conclusively that the opposite party No.2 was not

a legally married wife of petitioner No.1. Therefore, petitioner No.1 cannot

be treated as the husband and other petitioners cannot be treated as the

members of the family of the husband.

In view of such circumstances, the case under Section 498A of the

Indian Penal Code will obviously fail. The edifice of the complaint case is

commission of offence under Section 498A and other offences related

thereto. When charge under Section 498A of the Indian Penal Code fails,

the other penal provisions will automatically not attract against the

petitioners.

In view of such circumstances, the instant revision is allowed.

Complaint case being A.C. No.626 of 2022 pending before the learned

Additional Chief Judicial Magistrate at Alipore against the petitioners be

quashed.

(Bibek Chaudhuri, J.)

Mithun De/ A.R. (Ct).

Sl No.10.

D/L.