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2000 DIGILAW 122 (CAL)

Baniprova Barna v. Rita Barua

2000-03-10

RANJAN KUMAR MAZUMDAR

body2000
JUDGMENT The instant Criminal revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure is directed against the order passed by learned Sub-Divisional Judicial Magistrate, Alipore on 20.12.93 in complaint case No. 2588 of 1992. By filing this application the petitioner Nos. 1, 2, 3 and 4 have made the prayer for quashing not only the impugned order passed by learned S.D.J.M., Alipore on 20.12.93 but also the entire Criminal proceeding arising out of complaint case No. 2588 of 1992. 2. The case of the petitioner Nos. 1, 2, 3 and 4 who happened to the mother-in-law, husband, brother-in-law and sister-in-law respectively of the O.P.-wife was in brief that the O.P.-wife filed the instant complaint case No. 2588 of 1992 under Sections 498A/342/34 I. P. C. before the Court of learned S.D.J.M., Alipore making various allegations. To be specific, the case of the O.P. in the case was that the petitioner No.2 married her on 11.5.87 at Maheshtala, District 24-Parganas (South), West Bengal according to Buddhist rites and took her to her matrimonial home at Naharkatia, Assam and from the very inception she was tortured by petitioner Nos. 1, 3 and 4 for not bringing sufficient dowry. Despite such torture, O.P. lived in the matrimonial home and out of the wedlock with petitioner No.2 a male child was born. It was the further allegation of the O.P.-wife that her mother-in-law being petitioner No.1 pressurised her for bringing money and other articles from her father. It so happened that on 20.8.91 petitioner No.1 assaulted her and threatened the O.P.-wife that her baby would be taken away from her if she failed to bring Rs. 25,000/- from her father. In the circumstances O.P.-wife left her matrimonial home in Naharkatia, Assam for Calcutta assuring that she would persuade her father to give her money as demanded by petitioner No.1. In June 1992 petitioner No.2-husband came to the house of his father-in-law where O.P.-wife was living and thereafter brought back the O.P.-wife and the baby to Naharkatia in Assam. At such time also petitioner No.2-husband reminded O.P. that she should bring money from her father as demanded by petitioner No.1, her mother-in-law. But, however, it was her ill-luck that after her such return to matrimonial home in Assam, petitioner Nos. At such time also petitioner No.2-husband reminded O.P. that she should bring money from her father as demanded by petitioner No.1, her mother-in-law. But, however, it was her ill-luck that after her such return to matrimonial home in Assam, petitioner Nos. 1, 3, 4 again started misbehaving with O.P.-wife and tortured her, but her husband being petitioner No.2 did not deliberately take any notice of such assault. Thereafter, on receipt of a telegraphic message, the brothers of O.P. came to the matrimonial home of O. P; at Naharkatia and at such a time petitioner No.1 mother-in-law became furious when the O.P. a brothers expressed their inability to pay money to petitioner No.1 as demanded. At such a time petitioner No.1 directed the O.P. to quit the matrimonial home. Finding no other alternative O.P. came back to her father's place in Maheshtala, 24-Parganas (South), West Bengal and the custody of her child was forcibly taken by petitioner No.1 in spite of protest. In view of this incident the brothers of O.P. visited Naharkatia Police Station and lodged a written complaint and then came back to their house in Maheshtala, 24-Parganas in West Bengal with O.P. The case of the petitioners was that the complaint lodged by O.P. against them was baseless inasmuch as they never inflicted any torture, either mental or physical, on O.P. According to the petitioners there were no ingredients of the offence under Section 498A of the I. P. C. and the complaint case filed by the O.P. against them in the Alipore Court was baseless. It was further case of the petitioners that the diary lodged by the O.P. against the petitioner No.2-husband on 3.12.92 was also baseless. But, nonetheless learned S. D. J. M., Alipore took cognizance on the written complaint filed by O.P. against them in Alipore Court and issued process against them. According to the petitioners no offence was committed by anyone of them on O.P. within the territorial jurisdiction of learned S. D. J. M., Alipore and hence the entire Criminal proceeding at Alipore should be quashed. To be specific, according to the petitioners, offence, if at all, has been committed within the jurisdiction of Naharkatia, Assam and not within the jurisdiction of Alipore. Hence, the Criminal proceeding now pending against them before the Court of learned S.D.J.M., Alipore and the impugned order passed by learned S.D.J.M., Alipore, on 20.12.93 should be quashed. To be specific, according to the petitioners, offence, if at all, has been committed within the jurisdiction of Naharkatia, Assam and not within the jurisdiction of Alipore. Hence, the Criminal proceeding now pending against them before the Court of learned S.D.J.M., Alipore and the impugned order passed by learned S.D.J.M., Alipore, on 20.12.93 should be quashed. 3. I have had the opportunity of hearing learned Counsels for both the parties at length in the matter. 4. The only question• requiring consideration was whether the instant Criminal proceeding under Sections 498A/342/34 of the Indian Penal Code arising out of complaint Case No. 2588 of 1992 now pending before the learned Sub-Divisional Judicial Magistrate, Alipore should be quashed along with the impugned order passed by learned S.D.J.M. Alipore in the said case on 20.12.93 or not. 5. At the time of hearing the instant Criminal revisional application, learned Counsel for the petitioner Nos. 1, 2, 3 and 4., who happened to be the mother-in-law, husband, brother-in-law and sister-in-law respectively of the O.P.-wife, vehemently submitted that the instant Criminal proceeding is out and out a mala fide one inasmuch as there were no ingredients of the offence punishable under Section 498A I.P.C. against anyone of his clients. In that connection, it was submitted by Shri Milon Mukherjee that there was no specific incident of torture and cruelty, both physical and mental, while O.P.-wife lived in her father's place at Maheshtala, South 24-Parganas, West Bengal as alleged. Next Shri Mukherjee submitted that the O.P.-wife, while living at her matrimonial home at Naharkatia, District-Dibrugarh, Assam lodged a G.D. with Naharkatia P.S. being G. D. Entry No. 61 dated 3.12.92 against his clients and that the Naharkatia Police made an investigation into the said case. Next Shri Mukherjee submitted that the O.P.-wife, while living at her matrimonial home at Naharkatia, District-Dibrugarh, Assam lodged a G.D. with Naharkatia P.S. being G. D. Entry No. 61 dated 3.12.92 against his clients and that the Naharkatia Police made an investigation into the said case. In that view of the matter and in view of the provisions contained in Section 210(1) of the Code of Criminal Procedure, learned S.D.J.M., Alipore ought to have stayed the instant Criminal proceeding and called for a report in the matter from Naharkatia P.S., but unfortunately this course was not adopted by the learned S.D.J.M. Next Shri Mukherjee submitted that although his clients were granted ad interim bail by the learned Additional Chief Judicial Magistrate, Dibrugarh in connection with this case, but nonetheless learned S.D.J.M., Alipore cancelled the said bail and issued warrant of arrest against them for their failure to turn up before the said Court vide the impugned order dated 20.12.93. According to Shri Mukherjee since his clients were to attend the Alipore Court in West Bengal from a distant place like Naharkatia in Assam following disturbances of train services, learned S.D.J.M., Alipore failed to appreciate such an eventuality and arbitrarily issued the warrant of arrest against them without any application of mind. It was further submitted by him that this was a fit case where the Court should quash not only the impugned order dated 20.12.93 but also the entire Criminal proceeding arising out of complaint Case No. 2588 of 1992 in exercise of the Court’s inherent power under Section 482 of the Code of Criminal Procedure. 6. Learned Counsel for the O.P. wife submitted, on the other hand, that there were enough ingredients of the offences under Sections 498A/342/34 of the Indian Penal Code against all the petitioners in the written complaint filed by his client and hence there was no question of quashing the impugned order dated 20.12.93 and also the instant Criminal proceeding in exercise of the Court's inherent power under Section 482 of the Code. 7. Needless to mention that there are a catena of decisions of the Hon'ble Supreme Court on the crucial question of the Court's exercising inherent powers under Section 482 of the Code for quashing a Criminal proceeding. 7. Needless to mention that there are a catena of decisions of the Hon'ble Supreme Court on the crucial question of the Court's exercising inherent powers under Section 482 of the Code for quashing a Criminal proceeding. Some of such cases of the Hon'ble Supreme Court are as follows :- (1) Rajesh Bajaj v. State & Ors., 1999 Cr LJ 1833 (SC) ; (2) Pepsi Foods Ltd. v. Special Judicial Magistrate & Ors:, 1998 Supreme Court Cases 749 ; (3) Mustaq Ahmed v. Md. Habibur Rahaman Faizi & Ors., 1996 Cr LJ 1877 (SC) ; (4) State of U. P. v O.P. Sharma, 1996 Cr LJ 1878 (SC) ; (5) State of Haryana & Ors. v. Bhajanlal & Ors., 1992 Supp (1) SCC 335 (6) Mrs. Dhalakshmi v. R. Prasanna Kumar & Ors., AIR 1990 SC 494 (7) Madhavrao Scindia & Ors. v. S. C. Angre & Ors., 1988 (1) SCC 692 , (8) H. P. Chamaria v. B.K. Sureka & Ors., 1973 (2) SCC 823 8. The ratio and principles of law laid down by the Hon'ble Supreme Court in the aforesaid cases must, therefore, be borne in mind while dealing with the instant revisional case. 9. It is now well-settled that the High Court is invested with plenary powers to quash Criminal proceedings pending before any subordinate Court, where it appears that the allegations incorporated in the F.I.R. or petition of complaint, even when they are taken on their face value and accepted in their entirety, do not constitute a cognizable offence. It is again well-settled that while exercising the discretionary powers to quash a Criminal proceeding pending before a subordinate Court, the High Court shall not embark on an enquiry as to whether the evidence or allegations are reliable or not. In other words, while exercising power under Section 482 Cr. P.C., the High Court is not required to probe into any question as to whether the materials or allegations constituting the offence were trustworthy or not at the very initial stage of investigation. It is again not necessary that a complainant should reproduce in the body of the complaint all the ingredients of an offence verbatim. P.C., the High Court is not required to probe into any question as to whether the materials or allegations constituting the offence were trustworthy or not at the very initial stage of investigation. It is again not necessary that a complainant should reproduce in the body of the complaint all the ingredients of an offence verbatim. Again, it is well-settled that when the petition of complaint and its annexed documents made out a prima facie case, the High Court cannot enter into a debatable area as to which to the two versions of the parties is true. It is again not necessary to make a meticulous study of a case before trial to find out whether the said case would end in conviction or acquittal. It is again well-settled that the inherent power to quash a Criminal proceeding should be exercised very sparingly and in the rarest of rare cases to prevent abuse of the process of the Court or otherwise to secure the ends of Justice. Such power cannot be exercised to stiffle a legitimate prosecution. But, where the F.I.R. or the petition of complaint does not disclose any offence or is otherwise frivolous, vexatious or oppressive, it is open to the High Court to interfere under Section 482 Cr. P .C. and to quash a Criminal proceeding pending before a subordinate Court. 10. As already stated, the first submission of Shri Mukherjee, learned Counsel for the petitioners, was that there were no ingredients whatsoever of the offence of torture and cruelty in this case against his clients. But, a look at the copy of the written complaint filed by O.P.-wife in the Court of learned S.D.J.M., Alipore, West Bengal amply demonstrated prima facie as to how the unfortunate wife suffered torture and cruelty at the hands of the petitioners. It also appears from record that while taking cognizance in the matter, learned S.D.J.M., Alipore examined not only the complaint-housewife (O.P.) but also two of her other witnesses. But, the versions of the petitioners were that they never inflicted any torture on the housewife. In this hearing, the High Court cannot enter into the debatable area as to which of the two versions of the parties is true. But, the versions of the petitioners were that they never inflicted any torture on the housewife. In this hearing, the High Court cannot enter into the debatable area as to which of the two versions of the parties is true. In other words, in this hearing, the High Court cannot embark on an enquiry as to whether the allegations as levelled by the housewife against the petitioners are reliable or not or whether this case will end in conviction or acquittal. Since the written complaint and also other materials as available on record disclosed a prima facie case against the petitioners, there is no question of quashing the instant Criminal proceeding on the mere allegation that the said written complaint is vexatious, harassing and mala fide. Shri Mukherjee's objection in that regard is overruled. 11. Next submission of Shri Mukherjee was that when a separate Criminal case arose in Naharkatia, Assam following the G.D. entry made at Naharkatia P. S. by O.P.-wife Vide G.D. Entry No. 61 dated 3.12.92, the learned Court below ought to have stayed the instant Criminal proceeding and should have called for a report from the Police in Naharkatia. Assam as required under Section 210 of the Code. A copy of the G.D. Entry No. 61 dated 3.12.92 as made by the O.P.-wife at Naharkatia P.S. is available on record. A copy of the note of the Naharkatia P. S. as to the action taken in the matter disclosed prima facie that the O.P.-wife was not tortured by her husband and other members of the family in Naharkatia, District-Dibrugarh, Assam. This note of Naharkatia P. S. pointed out prima facie to one thing and one thing only that the said case as started in Naharkatia was dropped. In a situation like this, I am unable to accept the submission of Shri Mukherjee that the instant case ought to have been stayed by the learned Court below and that the learned Court below ought to have called for a report from Naharkatia P.S. 12. Last submission of Shri Mukherjee was that the learned Court below acted arbitrarily when it cancelled the interim bail of his clients and issued warrant of arrest against them vide impugned order dated 20.12.93. Last submission of Shri Mukherjee was that the learned Court below acted arbitrarily when it cancelled the interim bail of his clients and issued warrant of arrest against them vide impugned order dated 20.12.93. Admittedly, all the petitioners were granted interim bail by the learned Additional Chief Judicial Magistrate, Dibrugarh in connection with present case and that all the petitioners were directed to appear before the learned S.D.J.M., Alipore, West Bengal. It appears from the impugned order dated 20.12.93 that learned Court below refused to believe that the petitioners failed to turn up on that date before the Court on ground of disturbances in train services in Assam and hence rejected the interim bail granted by learned A.C.J.M., Dibrugarh and issued warrant of arrest against the petitioners. In my view, learned Court below failed to apply his mind to the fact that when the petitioners were to attend the Alipore Court in West Bengal from Naharkatia in Assam there could have been genuine difficulties in attending the Court at Alipore on 20.12.93. Hence, such an order of learned S.D.J.M., Alipore was liable to be modified in that regard. Accordingly, the impugned order dated 20.12.93 passed by learned S.D.J.M., Alipore canceling the interim bail of the petitioners and his further order regarding issuance of warrant of arrest against the petitioners are quashed. The petitioners will remain on ad interim bail as granted by learned A.C.J.M., Dibrugarh, Assam but they must appear before the learned Court below in West Bengal on a convenient date to be fixed by the learned Court below. Upon such appearance, the learned Court below will consider the prayer of the petitioners for granting them regular bail in accordance with law. 13. Order of interim stay as granted by this Court is hereby vacated. 14. Learned S.D.J.M., Alipore is directed to go ahead with the case according to law. The Criminal revisional application is thus disposed of with no order as to costs.