Gauhati High Court

Dhiraj Barman vs The State Of Assam And Anr on 1 April, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

Page No.# 1/8

GAHC010113772024

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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Pet./662/2024

DHIRAJ BARMAN
S/O LATE JOGANANDA BARMAN
VILL AND P.O. KAKAYA, P.S. BELSOR
DIST. NALBARI, ASSAM

VERSUS

THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM

2:SMT. ANJUSHRI SARMAH
W/O SRI DHIRAJ BARMAN
D/O GIRISH CHANDRA SARMAH
VILL- POTA - PUKHURI
P.O. BARAMPUR
P.S. SIPAJHAR
DIST. DARRANG
ASSAM
PRESENTLY RESIDING AT
C/O SRI DURGESWAR DEKA

AT WARD NO. 8
PRITY NAGAR

MANGALDOI TOWN

Advocate for the Petitioner : MR S DEKA, MRS H CHAKRABORTY,MR B SINHA

Advocate for the Respondent : PP, ASSAM, MR. N SAIKIA (R-2),MR. M SMITH (R-2)
Page No.# 2/8

Linked Case : Crl.Pet./663/2024

DHIRAJ BARMAN
S/O LATE JOGANANDA BARMAN
VILL AND P.O. KAKAYA
P.S. BELSOR
DIST. NALBARI
ASSAM

VERSUS

THE STATE OF ASSAM AND ANR
REP. BY THE PP
ASSAM

2:SMT. ANJUSHRI SARMAH
W/O SRI DHIRAJ BARMAN D/O GIRISH CHANDRA SARMAH VILL- POTA -
PUKHURI P.O. BARAMPUR P.S. SIPAJHAR
DIST. DARRANG
ASSAM
PRESENTLY RESIDING AT C/O SRI DURGESWAR DEKA
AT WARD NO. 8
PRITY NAGAR
MANGALDOI TOWN.
------------
Advocate for : MR S DEKA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR

Linked Case : Crl.Pet./664/2024

DHIRAJ BARMAN
S/O LATE JOGANANDA BARMAN VILL AND P.O. KAKAYA
P.S. BELSOR DIST. NALBARI
ASSAM

VERSUS

THE STATE OF ASSAM AND ANR
REP. BY THE PP
ASSAM
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:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

O R D E R

01.04.2025

These there applications are taken up together as they are between the same parties.

2. Heard Mr. B. Sinha, the learned counsel appearing for the petitioners as well as Mr. K.K. Parasar, the learned Addl. Public Prosecutor for the State of Assam. Also heard Mr. M. Smith, the learned counsel for the private respondents.

3. These applications were filed under Section 482 of the CrPC praying for quashing the criminal proceedings of PRC Case No.1263/2022 arising out of Mangaldai P.S. Case No.218/2022 pending in the court of Judicial Magistrate First Class, Darrang, Mangaldai, Assam (Munsiff-cum-Judicial Magistrate No.2, Mangaldai, Darrang), the criminal proceedings of Chandmari P.S. case No.568/2021 and the proceedings of Chandmari P.S. Case No.40/2023.

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4. All the three FIRs are filed by a wife against her husband. The wife is an officer of Canara Bank. On 26.08.2021, she lodged an FIR before Chandmari Police station, Guwahati while she was working as Assistant Manager of Canara Bank at Bamunimaidam Branch. She had alleged that after her marriage with her husband in the year 2016, he has been continuously torturing her physically and mentally. Finally, in the year 2020, she informed her parents and the parents of her husband about the conduct of her husband. But her husband continued to torture her. On the previous night of 26.08.2021, she had to leave her matrimonial house and started to live in a rented house. It may be mentioned that the wife has alleged that the future of her son was at stake because of the conduct of her husband.

5. Police registered the said FIR as Chandmari P.S. Case No.568/2021 under Section 498(A) of the Indian Penal Code. The case is still under investigation.

6. Thereafter, on 11th June, 2022, the wife again lodged an FIR before Mangaldai Police Station because at that time she was working at Canara Bank, Mangaldai Branch.

She has alleged that after his marriage with her husband on 20 th January, 2016, in the subsequent 6 years, she was constantly tortured physically and mentally by her drunken husband. Feeling insecured, she started to live separately with her only child in a rented house at Mangaldai. She alleges that her husband frequently visited her residence and tortured her as before. On the date of lodging of the said FIR, at about 6.15 P.M., her husband came to her residence, physically assaulted her and also threatened to kill her.

7. Police registered the case being Mangaldai P.S. case No.218/2022 under Section 498(A) of the Indian Penal Code. On conclusion of investigation, police filed the charge sheet being Charge Sheet No.229/2022 under Section 498(A) of the Indian Penal Code, which was registered as PRC Case No.1263/2022 pending in the court of Munsiff-cum- Judicial Magistrate No.2, Mangaldai, Darrang.

8. Again on 12.01.2023, the wife had lodged the third FIR against her husband. She Page No.# 5/8

claims that she has been living separately from her husband and when she hurriedly left his house, she could not bring her streedhan, bank pass book, cheque book, her land

documents, car and scooter documents etc. On the previous day, i.e. on 11 th January, 2023, the State Bank of India authority from Guwahati had called her father Mr. Girish Ch. Sarma and asked him whether he had issued three cheques, each worth Rs.10 lakhs, to her husband. Mr. Girish Ch. Sarma reportedly informed the Bank authorities that he never issued those cheques and asked them to stop payment of those cheques.

9. Now, the wife apprehends that her husband might use her cheques with mala fide intention. This time the police registered the case being Mangaldai P.S. Case No.40/2023 under Sections 406/419/420 of the Indian Penal Code.

10. The husband, i.e. the present petitioner has filed these three applications praying for quashing the FIRs and the criminal proceedings.

11. The petitioner has referred to an affidavit sworn before the Notary Public at Mangaldai. By swearing this affidavit, the wife had stated that the Chandmari P.S. Case No.568/2021 under Section 498(A) of the Indian Penal Code came into being because of misunderstanding with her husband. She claimed that she did not want to proceed further with the case and she has no objection if the FIR dated 26.08.2021 was quashed.

12. Regarding the Chandmari P.S. Case No.40/2023, the petitioner has stated that while his wife purchased a plot of land at North Guwahati, he also invested some amount of money. When he asked his wife to return the money, then her father gave him three cheques, each worth Rs.10 lakhs. The cheques were dishonoured by the Bank when his father-in-law stopped payment of those cheques. For this reason, the petitioner filed a complaint case under Section 138 of the N.I. Act against his father-in-law. The petitioner has alleged that his wife lodged the FIR relating to Chandmari P.S. Case No.40/2023, just to save her father from the predicament of the complaint case.

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13. I have considered the submissions made by the learned counsel of both sides.

14. The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal , AIR 1992 SC 604. Paragraph 102 of the judgment reads as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

15. Reverting to the case in hand, on a plain reading of the FIR dated 26.08.2021 and the FIR dated 11.06.2022, it is seen that there is no allegation of demand of dowry. Section 498(A) of the Indian Penal Code was inserted into the Code with a specific legislative intention. Physical and mental harassment for want of dowry is cruelty within the meaning of Section 498(A). Physical and mental cruelty upon the wife by her husband or his relatives does not amount to cruelty under Section 498(A) of the Indian Penal Code if those acts are not done for want of dowry. The legislative intention must be respected.

16. Both the FIRs depict a quarrel between husband and wife. For that matter, both sides are liberty to approach appropriate forums for seeking relief, if they desire. The FIR dated 26.08.2021 and the FIR dated 11.06.2022 do not establish a prima facie case under Section 498(A) of the Indian Penal Code. Both these FIRs are with some ambiguous allegation against the husband. In such a circumstance, no investigating agency can come to a definite finding. It is true that the husband and the wife are involved in disputes for which they are living separately. But the allegations brought against the husband do not constitute a prima facie criminal case.

17. So far as the FIR relating to Chandmari P.s. case No.40/2023 is concerned, it is an admitted fact that Mr. Girish Ch. Sarma asked the Bank to stop payment of the cheques which were presented to it by his son-in-law. Therefore, the son-in-law, being the husband of the informant had already filed a case under Section 138 of the N.I. Act against her father.

18. It is a settled position of law that stopping payment of cheques, amounts to an offence under Section 138 of the N.I. Act. Under this circumstance, this Court has the reason to hold that this FIR was filed with a mala fide intention just to save Mr. Girish Ch. Sarma from being punished under Section 138 of the N.I. Act.

19. After considering all those facts, this Court is of the opinion that the ratio laid down Page No.# 8/8

in the case of Bhajan Lal (supra), is squarely applicable in these three cases. The three FIRs lodged by the wife failed to establish prima facie cases against the present petitioner, being her husband. There is no possibility of conviction in these cases. Thus, allowing these cases to continue before the trial court would be nothing but an abuse of the process of the court.

20. These are fit cases for exercising power under Section 482 of the CrPC. Therefore, the criminal petitions are allowed.

21. The criminal proceedings of PRC Case No.1263/2022 arising out of Mangaldai P.S. Case No.218/2022 pending in the court of Judicial Magistrate First Class, Darrang, Mangaldai, Assam (Munsiff-cum-Judicial Magistrate No.2, Mangaldai, Darrang), the criminal proceedings of Chandmari P.S. case No.568/2021 and the proceedings of Chandmari P.S. Case No.40/2023, are quashed and set aside.

The Criminal Petitions are disposed of.

JUDGE

Comparing Assistant