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2007 DIGILAW 202 (CAL)

SUBHO @ SUBRATA SUKUL v. STATE OF WEST BENGAL

2007-03-21

SADHAN KUMAR GUPTA

body2007
( 1 ) THE Judgment of the Court was as follows : this revisional application has been preferred under Section 482 of the cr. P. C. praying for quashing of the proceeding being Sessions Case No. 44 of 2006, as pending in the Court of learned Additional Sessions Judge, Fast track Court, Durgapur. ( 2 ) CASE of the petitioners is that Coke Oven P. S. case No. 83 dated 5. 7. 2001 was registered on the basis of a complaint lodged by one Laxmi kanta Dutta alleging therein that Dolly Das, his younger sister, was married with one Utpal Shyam on 4. 9. 1994. After the marriage Dolly was subjected to mental and physical torture by her husband. Out of the said wedlock Dolly gave birth to two female children. In the meantime, Utpal developed an extra marital relationship with one Pushpa Sukul. Over this affairs, Utpal used to torture and threaten Dolly. Said Pushpa Sukul threatened Dolly over telephone and instigated her to commit suicide. In the said petition of complaint it has further been alleged that Dolly was subjected to torture in the absence of the parents of Utpal by the petitioners. In the morning of 4. 7. 2001 Dolly was subjected to physical torture by her husband when he also threatened her with murder along with her daughters. On that very day Dolly left the house and committed suicide along with her two minor daughters on 5. 7. 2001. ( 3 ) ON the basis of the said complaint the police case was started and after completion of the investigation, the Investigating Officer submitted charge- sheet under Sections 498a/306/120b of the Indian Penal Code against the petitioners and against the husband Utpal. On 30. 10. 2006 the petitioners filed an application before the learned Judge praying for their discharge on the ground that the petitioners are not the members or relatives of the deceased and there was practically no allegations of torture upon the deceased by the petitioners and as such, as there is no prima facie case against them, so they should be discharged. By the learned Additional Sessions Judge, by his order dated 21. 11. 2006 rejected the said petition. By the learned Additional Sessions Judge, by his order dated 21. 11. 2006 rejected the said petition. ( 4 ) BEING aggrieved and dissatisfied with the said order of the learned judge the petitioners have preferred this revisional application on the ground that since the present petitioners are not the family members of the deceased and since there is no allegation of torture upon the deceased by the present petitioners, so the learned Judge was not at all justified rejecting the prayer for their discharge. According to the petitioners, since there is no prima facie case against them, so no purpose will be served in proceeding with the case in the Court below against the petitioner and it will be an abuse of the process of the Court and as such, they have prayed for setting aside the order of the learned Judge and to quash the entire proceeding so far as the petitioners are concerned. ( 5 ) I have heard the submissions of the learned Advocate for the petitioners, learned Advocate for the de facto complainant as well as for the state, who produced the case diary at the time of hearing. It is the admitted position that Dolly, the younger sister of the de facto complainant, was married with the accused Utpal Shyam, who is the main accused of this case. It is also the prosecution case that Utpal used to torture the victim, as in the meantime he developed an illicit relationship with the accused Pushpa Sukul. From the fir it appears that the accused Utpal used to torture the deceased both physically as well as menially. There are allegations against said Pushpa Sukul to the effect that she also used to misbehave with the deceased and used to instigate her to commit suicide. So far as present three petitioners are concerned, it appears that the petitioner No. 1 Subho @ Subrata Sukul is the brother of said Pushpa Sukul whereas the petitioner No. 2 Nirapada Sukul and petitioner No. 3 Jharna Sukul are the parents of said Pushpa Sukul. As such, there cannot be any doubt that these three petitioners are not the relatives of the family of the deceased. So far as materials collected against these three petitioners, it cannot be said that they actually instigated Dolly in committing suicide. As such, there cannot be any doubt that these three petitioners are not the relatives of the family of the deceased. So far as materials collected against these three petitioners, it cannot be said that they actually instigated Dolly in committing suicide. If there is any instigation at all, then from the prima facie materials, it appears that those instigations were given by Pushpa and obviously the main accused Utpal Shyam. Learned Advocate for the Slate drew my attention to a suicidal note which was allegedly written by Dolly before committing suicide along with two minor children. I have perused the said suicidal note which appears to be very pathetic. But at the same time, nowhere it appears from the said suicidal note that the deceased made any allegation against the present petitioners. As such, it must be said that there is no prima facie material for framing the charge against these three petitioners. Learned Advocate for the state cited a decision reported in (1989)2 SCC 715 (Stree Atyachar Virodhi parishad v. Dillp Nathumal Chordia and Anr.) in order to substantiate his claim that when the trial Court finds prima facie case and prefers to frame charges against the accused, then the High Court should not interfere by probing into sufficiency of grounds for conviction of the accused and ordering his discharge. There cannot be any dispute in respect of the ratio, as decided by the Hon'ble supreme Court. But at the same time, nowhere it has been stated that the high Court cannot look into the propriety and justifiability of the order passed by the learned Judge, in exercise of its inherent jurisdiction, as provided under section 482 of the Cr. P. C. although, it appears prima facie, that the learned judge failed to exercise his jurisdiction vested in him properly. In my considered opinion, it is always open for the High Court to look into the order passed by the learned Judge while framing the charge against the accused persons and to see whether said order was passed after considering the materials properly or not. It cannot be said that even if there is no prima facie material against the accused and if against the said accused a charge is directed to be framed, then also the High Court will be powerless, to interfere with the matter. It cannot be said that even if there is no prima facie material against the accused and if against the said accused a charge is directed to be framed, then also the High Court will be powerless, to interfere with the matter. If that position is accepted, then there will be no meaning of provisions of Section 482 of the Cr. P. C. ( 6 ) BE that as it may, I am of considered opinion that it is always open for the High Court to look into the validity of the order directing for framing of the charge against the petitioners by the learned Court below. Let us now consider the matter keeping the legal position, as discussed above, in mind. ( 7 ) I have perused the case diary as well as the suicidal note, as allegedly written by the deceased. I have already pointed out that in the suicidal note there is nothing to implicate these three petitioners. From the statements of the witnesses also it further appears that there is practically no credible prima facie material so far as these three petitioners are concerned. It will not be sufficient to frame a charge under Section 306 of the Indian Penal Code against a person only because the witnesses have made stray statements that these petitioners also used to misbehave with the deceased. For framing a charge under Section 306 of the Indian Penal Code something more is necessary. It is to be established that these petitioners instigated the deceased in such a way, so that she was compelled to commit suicide. But from the materials, as available in the case diary I have got no hesitation to hold that there is no prima facie material to frame the charge, so far as these petitioners are concerned. All the statements of the witnesses under Section 161, Cr. P. C. as well as the statements, as made in the F.. Ft. , appear to be against he accused/husband and against one Pushpa Sukul. So far as those two accused persons are concerned, since I have already pointed out that there are materials against them, it must be said that the learned Court below was perfectly justified in framing the charge against them. But so far as present three petitioners are concerned, it appears that there is no prima-facie acceptable evidence for going to the trial. But so far as present three petitioners are concerned, it appears that there is no prima-facie acceptable evidence for going to the trial. As such, I think that the learned Court below was not at all justified in framing the charge against them. The order of the learned Court below, under such circumstances, is liable to be set aside and the proceeding against the three petitioners should be quashed immediately. ( 8 ) IN the result the revisional application is allowed on contest. The order dated 21. 11. 2006 passed by the learned Additional Sessions Judge, fast Track Court, Durgapur in Sessions Case No. 44 of 2006, whereby he directed framing of charge against the petitioner No. 1 Subho @ Subrata Sukul, petitioner No. 2 Nirapada Sukul and petitioner No. 3 Jharna. Sukul is set aside. The proceeding against those three petitioners stands quashed. They be discharged at once. However, the proceeding against the other two accused persons shall proceed in accordance with law. ( 9 ) SEND a copy of this order to the learned Court below at once for information and necessary action. .