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2004 DIGILAW 140 (CAL)

AJOY CHAKRABORTY v. CHANDANA CHAKRABORTY

2004-02-25

P.N.SINHA

body2004
P. N. SINHA, J. ( 1 ) THESE two revisional applications have been preferred by the respective petitioners challenging the order dated January 12, 2004 passed by the learned Judicial Magistrate, 3rd Court, Barrackpore in Case No. G. R. 1457/1993 arising out of North Bidhan Nagar P. S. Case No. 142 dated 29. 4. 93 and praying for quashing the impugned criminal proceeding as stated above. ( 2 ) I intend to dispose of both the revisional applications by this common judgment and order as the facts and points involved in both the revisional applications are identical. ( 3 ) PETITIONER No. 1 Ajay Chakraborty of C. R. R. No. 353 of 2004 is the husband of O. P. No. 1 Chandana Chakraborty and she is the petitioner of c. R. R. No. 371 of 2004. They were married on 24. 2. 86. The wife lodged a complaint at North Bidhan Nagar P. S. and on the basis of it North Bidhan nagar P. S. Case No. 142 dated 29. 4. 93 (G. R. No. 1457/93) under Sections. 498a/406/403/504/506/120b of the Indian Penal Code (hereinafter called the i. P. C.) was started against the husband. The husband filed matrimonial suit being MAT Suit No. 632 of 1991 before the learned District Judge, North 24 parganas at Barasat and after transfer of the said suit in the Court of learned 3rd Additional District Judge at Barasat there was a decree in favour of husband and their matrimonial tie was dissolved. The wife preferred appeal in this Court against the judgment and decree granting divorce against her and it was registered as F. A. No. 242 of 2000. In the criminal case started on the basis of F. I. R. submitted by the wife the police investigated into the case and submitted charge-sheet against the husband and others and the learned sub-Divisional Judicial Magistrate (hereinafter called the S. D. J. M.), Barrackpore took cognizance of offence and transferred the said case to the Court of learned Judicial Magistrate, 3rd Court, Barrackpore for trial and disposal. ( 4 ) DURING pendency of the matrimonial appeal in this Court the husband and wife came into an amicable settlement and accordingly they filed an application and an undertaking in the said appeal. ( 4 ) DURING pendency of the matrimonial appeal in this Court the husband and wife came into an amicable settlement and accordingly they filed an application and an undertaking in the said appeal. On the basis of application and undertaking the appeal being F. A. 242 of 2000 was disposed of by a Division Bench of this Court by order dated January 7, 2004 dismissing the said first appeal for non-prosecution and directed the husband to pay a sum of Rs. 3 lakhs to the wife in two instalments, first of such instalment will be of Rs. 2 lakhs and the balance amount of Rs. 1 lakh will be paid by next instalment within one year. The said amount of Rs. 3 lakhs would be paid by the husband as full and final settlement of permanent alimony to the wife. The Division Bench further recorded that the wife has agreed to file appropriate petition before the learned Magistrate for withdrawing the complaint tiled by her on the basis of which North Bidhan Nagar P. S. Case No. 142 dated 29. 4. 93 was started and ended in submission of charge-sheet in G. R. Case No. 1457 of 1993 and it was further directed by the Division Bench that if the petition is filed, the learned Magistrate will consider the same in accordance with law particularly in view of the fact that the husband and wife has reached an amicable settlement amongst themselves. ( 5 ) IN compliance with the direction made by the Division Bench the wife filed an application for withdrawal of G. R. Case No. 1457 of 1993 but the learned Magistrate by order dated 12. 1. 2004 reopened the case filed against some of the accused persons and issued summons on them for their appearance instead of passing appropriate order for discharging the accused and dismissing the case either for non-prosecution or withdrawn on the basis of petition of de facto complainant. Being aggrieved by an dissatisfied with the order dated 12. 1. 04 passed by the learned Magistrate both the wife and husband have filed the instant two revisional applications separately praying for quashing the said criminal proceeding. ( 6 ) MR. Being aggrieved by an dissatisfied with the order dated 12. 1. 04 passed by the learned Magistrate both the wife and husband have filed the instant two revisional applications separately praying for quashing the said criminal proceeding. ( 6 ) MR. Ganesh Srivastava, learned Advocate appearing for the wife contended that the learned Magistrate did not realise the importance of the direction of the High Court and also failed to realise the impact of the decision of the Hon'ble Supreme Court passed in B. S. Joshi's reported in 2003 C Cr lr (SC) 498. He contended that the Supreme Court has clearly observed that for the purpose of securing the ends of justice quashing of FIR becomes necessary and Section 320 of the Code would not be a bar to the exercise of power of quashing. Accordingly, he contended that when the husband and wife has reached amicable settlement between themselves the criminal proceeding should be quashed. ( 7 ) MR. Biplab Mitra appearing for the husband contended that the supreme Court in B. S. Joshi's case (supra) and in subsequent other decisions also has made it clear that the Courts should encourage genuine settlement of matrimonial disputes. In the instant case when the husband and wife has entered into amicable settlement it is desirable that the criminal proceeding should be quashed. The learned Magistrate acted illegally by not allowing the wife's prayer to withdraw the said case. ( 8 ) AFTER hearing the submissions of the learned Advocates of the parties and perusing the contents of the revisional applications and annexures made therein I find that after marriage the rejation between the husband and wife was not good and the wife in 1993 filed a complaint or FIR on the basis of which North Bidhan Nagar P. S. Case No. 142 dated 29. 4. 93 (G. R. Case No. 1457/93) was started and after completing investigation police submitted charge-sheet in the Court of learned S. D. J. M. and after taking cognizance learned Magistrate transferred the case to the Court of learned Judicial magistrate, 3rd Court, Barrackpore for disposal. Earlier to that, the husband filed matrimonial suit being MAT Suit No. 632 of 1991 in the Court of learned district Judge at Barasat and it was transferred to the Court of learned 3rd additional District Judge and the learned Additional District Judge decreed the suit. Earlier to that, the husband filed matrimonial suit being MAT Suit No. 632 of 1991 in the Court of learned district Judge at Barasat and it was transferred to the Court of learned 3rd additional District Judge and the learned Additional District Judge decreed the suit. The wife preferred first appeal being F. A. No. 242 of 2000 assailing the judgment and decree of divorce. It appears that during pendency of the appeal the husband and wife came to an amicable settlement and on the basis of their application and undertaking qiven in the Division Bench the appeal was dismissed for non-prosecution. The husband agreed to pay Rs. 3 lakhs as permanent alimony to the wife and out of the said amount first of such instalment will be for Rs. 2 lakhs and the balance Rs. 1 lakh to be paid within one year. It was further agreed by the parties that the wife will file appropriate application before the learned Magistrate withdrawing her compliant against the husband and other relatives against whom a case under Sections 498a/406/403/504/506/120b being G. R. Case No. 1457 of 1993 is pending. The Division Bench also indicated that if any application is filed the learned Magistrate will consider the same in accordance with law. It appears from the impugned order dated 12. 1. 04 that the learned Magistrate observed that Section 498a of I. P. C. is not compoundable and accordingly he issued process i. e. , summons for appearance of the accused persons before him and did not dispose of the application filed by the wife for withdrawing the complaint. Accordingly both the husband and the wife have moved this Court in the present two revisional applications. ( 9 ) CONSIDERING the entire matter and pros and cons as well as the present understanding between the husband and wife as they came into amicable settlement I am of opinion that the decision of the Apex Court in B. S. Joshi's case is a guideline in such matter. The Supreme Court has made it clear that it is the duty of the Court to encourage genuine settlement of matrimonial disputes. The Supreme Court has further observed that, "hyper technical view would be counter productive and would act against interests ot women and against the object for which the provision was added. The Supreme Court has made it clear that it is the duty of the Court to encourage genuine settlement of matrimonial disputes. The Supreme Court has further observed that, "hyper technical view would be counter productive and would act against interests ot women and against the object for which the provision was added. " It was further observed by the Supreme Court that, "there is every likelihood that non-exercise of inherent power to quash the proceeding to meet the ends of justice would prevent women from settling earlier. " The instant criminal case is based mainly on the evidence of wife, the informant. If out of settlement with the husband she does not appear in Court what would happen to the prosecution case and it is certain that the prosecution case would fail. Therefore, when the husband and wife have settled the dispute between themselves and the wife does not intend to proceed further with the criminal proceeding, it is desirable that the High Court should exercise its inherent jurisdiction to quash the criminal proceeding. It would be an abuse of process of Court to continue the criminal proceeding further. It is a fit case where this court should exercise its inherent power to quash the criminal proceeding to meet the ends of justice. ( 10 ) IN view of the discussion made above the criminal proceeding being G. R. Case No. 1457 of 1993 as well as the FIR of North Bidhan Nagar rs. Case No. 142 dated 29. 4. 93 and the charge-sheet submitted in the said case are hereby quashed. ( 11 ) BOTH the revisional applications stands allowed and disposed of. This order will govern both the revisional applications being C. R. R. No. 353 of 2004 and C. R. R. No. 371 of 2004. ( 12 ) URGENT certified copy be given to the parties, if applied for, expeditiously.