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2007 DIGILAW 260 (CAL)

Jyotirmoy Som v. STATE OF WEST BENGAL

2007-04-04

PARTHA SAKHA DATTA

body2007
Judgment :- (1.) BY this application dated 18. 08. 2006 quashing is prayed for of the proceeding in BGR No. 1839 of 2006 corresponding to Budge Budge P. S. Case No. 72 dated 26. 06. 2006 under section 411/414 of the Indian Penal Code now pending before the learned Chief Judicial Magistrate of Alipore on the grounds inter alia that the complaint was filed by the wife (O.P. No. 2) in suppression of the fact that she earlier had filed a case against the petitioner and others under section 498a/406 IPC vide East Bidhan Nagar P. S. Case No. 108 dated 19. 09. 2005 under section 498a/406 of the Indian Penal Code which culminated in submission of chargesheet and thus the present complaint under section 411/414 of the Indian Penal Code is not maintainable. (2.) THE opposite party No. 2 lodged an FIR being East Bidhan Nagar P. S. Case No. 108 dated 19. 09. 2006 against the present petitioner and three others alleging the following facts: she was married to the petitioner on 08. 03. 2004 but sometime after marriage she was subjected to ill-treatment and torture on demands of Rs. 2 lac on account of business of the petitioner and Rs. 50,000/-on account of Mediclaim and of some other amount in connection with marriage of the parties. When she would raise protest she was subjected to physical and mental torture. On the night of 07. 06. 2004 she was compelled to return back to her fathers house and on her arrival thereat she lodged a G. D. E. being No. 214 dated 08. 06. 2004. The petitioner instituted a suit for restitution for conjugal rights but he got the suit withdrawn. All the articles which were given to her in the marriage are lying in her matrimonial home and the members of the matrimonial family refused to part with the articles. She was pressurized to agree to divorce so that the writ petitioner would be given in marriage somewhere else. (3.) IN the FIR, list of articles including ornaments which were allegedly lying in the matrimonial home has been listed. Upon completion of investigation the police submitted chargesheet vide East Bidhan Nagar P. S. Chargesheet No. 8 of 2006 dated 29. 01. 2006 under section 498a/406 of the Indian Penal Code against four accused persons including the present petitioner. (3.) IN the FIR, list of articles including ornaments which were allegedly lying in the matrimonial home has been listed. Upon completion of investigation the police submitted chargesheet vide East Bidhan Nagar P. S. Chargesheet No. 8 of 2006 dated 29. 01. 2006 under section 498a/406 of the Indian Penal Code against four accused persons including the present petitioner. (4.) UPON after submission of chargesheet the complainant filed a petition before the learned Magistrate for further investigation of the case insofar as articles were concerned. In the petition it was averred that the police had the opportunity to seize the articles but while the police seized some papers in relation to the properties but did not seize the articles as per the list in the fir. The police once approached the petitioner to become a witness to the seizure for identification of the properties. As the petitioner was suffering from mental disturbance she could not participate in identification of the articles in course of investigation. The articles are in wrongful possession of the petitioner and non-seizure of the articles is the cause of the prayer for further investigation. It was stated in the petition that unless by further investigation seizure of the articles was made there will be a great vacuum in investigation of the case. This petition was filed before the learned Judicial Magistrate before whom the case was transferred after submission of the chargesheet for trial on 18. 04. 2006. (5.) THIS petition was disposed of by the learned Magistrate by her order dated 19. 05. 2006 wherein the learned Magistrate observed that on perusal of the case diary it appeared that the de facto complainant was given opportunity to identify her "stridhan" properties but she gave a message that she wanted to forego her right "regarding the dowry on regarding other properties and have not raised any objection regarding investigation before the learned ACJM." accordingly, the learned Magistrate found no cogent ground to direct the I. O. to conduct investigation regarding recovery of articles of the de facto complainant at that stage as the de facto complainant was given ample opportunities to meet the I. O. and to ventilate her grievance but she wilfully ignored it. (6.) AFTER this order was passed in the record of G. R. Case No. 2340 of 2005 the de facto complainant filed a petition before the learned CJM, Alipore on 20. (6.) AFTER this order was passed in the record of G. R. Case No. 2340 of 2005 the de facto complainant filed a petition before the learned CJM, Alipore on 20. 05. 2006 that is a day after her prayer for recovery of the articles by way of further investigation in connection with East Bidhan Nagar P. S. Case No. 108 of 2005 was rejected by the learned Magistrate of East Bidhan Nagar on 19. 05. 2006. In this complaint before the learned CJM, Alipore it was alleged that on 07. 06. 2004 the petitioner instituted divorce suit being MAT Suit No. 1467 of 2005 and in the plaint of the suit the petitioner/husband stated that. . . . . . . . . . . . . . . . . . except gold ornaments the other articles were lying under his custody which according to the O. P. /wife is wrong because ornaments like other articles also were lying in the custody of the petitioner-accused. The accused averred that the wife and her father and relatives have taken away her ornaments from the house of in-laws which is false. Thus the wife alleged that the ornaments as also other articles have been concealed elsewhere for wrongful loss to the wife (O. P. No. 2). Therefore, offence was alleged against the petitioner alone under section 411/414 of IPC. (7.) THE learned CJM, Alipore sent the petition to the Budge Budge Police station under which jurisdiction the de facto complainant had then been residing, for registration of an FIR. Thus came into being Budge Budge P. S. FIR No. 72 dated 26. 06. 2006 against the present petitioner under section 411/ 414 of the IPC. Investigation has been carried out with regard to this second case by Budge Budge Police Station and in course of investigation the police seized Godrej steel almirah under lock and key, one Godrej mattress along with two pillows and one side pillow and one Godrej Washing Machine in working condition. This seizure was effected on 23. 07. 2006 and in connection with the seizure the police examined three seizure witnesses. On 27. 08. This seizure was effected on 23. 07. 2006 and in connection with the seizure the police examined three seizure witnesses. On 27. 08. 2006 these three properties were placed in the custody of the wife, de facto complainant against an undertaking of production of the same before the Court as and when it would be necessary under the order of the learned CJM, Alipore dated 22. 08. 2006. On 03. 9. 2006, the complainant/wife as also the husband/ petitioners father were asked to be present to witness breaking open the almirah as key of the almirah could not be seized. Appearance of the father of the petitioner was found not available, while the complainant was present and in presence of three other witnesses the lock was broken but no articles inside the almirah could be found. Then the investigation of the second case was stayed pursuant to this revisional application on the prayer of the petitioner/husband and accordingly no further investigation was conducted after 04. 9. 2006. (8.) MR. Milan Mukherjee, learned Advocate for the petitioner submits that the second proceeding under section 411/414 IPC is not maintainable for the following reasons: (a) In the second FIR lodged with Budge Budge Police Station, the de facto complainant suppressed the fact that she earlier had lodged an FIR with East bidhan Nagar Police Station against the petitioner and others under section 498a/406 of the IPC and after submission of chargesheet under section 498a/ 406 of the IPC the de facto complainant filed second FIR with a different police station under section 156 (3) Cr. PC alleging that the properties have been wrongfully concealed for wrongful gain of the petitioner which, in fact, is not true in view of the fact that in course of investigation of the earlier case the police asked the de facto complainant to assist them in the matter of identification of the properties for the purpose of seizure in connection with that first case but the de facto complainant did not assist the police and sent a message that she was foregoing her claims to those properties and in such circumstances it was not possible for the police of East Bidhan Nagar P. S. to make any search and seizure of the articles as were listed in the FIR of East bidhan Nagar P. S. Case No. 108 of 2005 under section 498a/416 of the IPC. (b) Mr. Mukherjee submits that in such circumstances completely without any justification and lawful ground the de facto complainant made a second case inviting investigation with respect to allegation of offence under section 411/414 of the IPC. (c) Mr. Mukherjee submits that no two separate cases can be registered at two different police stations for investigation in respect of the self-same allegations of facts because if the first case which was registered under section 498a/416 of the IPC there was allegation that the petitioner and others declined and/or refused to give her properties as listed therein which were given to her in her marriage and the police submitted charge-sheet under section 498a/416 of the IPC pursuant to investigation which included examination of the witnesses on behalf of the complainant who alleged mis-appreciation of the articles by the petitioner and his family members the second case alleging the same facts is not legally tenable. (d) Mr. Mukherjee submits that from the very nature of the complaint lodged with Budge Budge Police Station it would appear that the cause of action for filing the second case arose out of the plaint of the MAT Suit No. 1467 of 2005 wherein the husband alleged that except gold ornaments other articles were in the custody of the husband and according to the wife not only the ornaments but also other articles were not parted with by the petitioner and others. Mr. Mukherjee submits that the plaint in MAT Suit No. 1463 of 2005 was lodged in 2005 while the second FIR in suppression of the earlier one was lodged on 20. 5. 2006 and very cleverly the wife suppressed the fact in the second FIR that just on the previous day i. e. 19. 05. 2006, the learned Judicial Magistrate of bidhan Nagar in connection with the first case rejected the petition of the de facto complainant dated 18. 04. 2006 praying for reinvestigation in the matter of seizure of the properties on the ground that it was the de facto complainant who refused to assist the police in that case for the purpose of search and recovery of the articles listed in the FIR of that case. Mr. 04. 2006 praying for reinvestigation in the matter of seizure of the properties on the ground that it was the de facto complainant who refused to assist the police in that case for the purpose of search and recovery of the articles listed in the FIR of that case. Mr. Mukherjee submits that averment in the second FIR that cause of action arose for filing the second FIR out of pleading of the husband in the MAT suit is quite untrue and false and the de facto complainant in suppression of material facts initiated a second case when she found that her praying for further investigation for the purpose of search and seizure of the properties was turned down by the learned magistrate in the first case. (9.) MR. Jagannath Ganguly, learned Advocate for the de facto complainant submits that the Court cannot in the face of the chargesheet under section 498a/406 of the IPC forestall the de facto complainants prayer for search and seizure of articles which were her "stridhan" articles simply on the ground that the de facto complainant did not meet the police so as to proceed to the house of the accused for the purpose of identification of the proposed. Mr. Ganguly further submits that the alleged message given by the de facto complainant to the police that she was not interested in the articles cannot negative the charge under section 406 of the IPC because no Court can wipe out the charge under section 406 of the IPC on the basis of an alleged message of the de facto complainant. He further submits that the second petition which became the fir via 156 (3) of the Cr. PC in relation to recovery of the articles is not unlawful and at this stage when the police has already seized three items of properties. Mr. Ganguly further submits that out of 14 items of the properties only the three have been recovered leaving non-recovery of 11 other items of properties and the police cannot be stopped from making further investigation. (10.) MR. Debabrata Roy, learned Advocate appearing for the State produces before me the case diaries of the two cases and submits that pursuant to the second FIR, three items have been recovered. (10.) MR. Debabrata Roy, learned Advocate appearing for the State produces before me the case diaries of the two cases and submits that pursuant to the second FIR, three items have been recovered. (11.) IN this conspectus of the case the question is whether the proceedings of the Budge Budge P. S. Case No. 72 dated 26.6.2006 should be quashed or not. Mr. Mukherjee has raised a very pertinent question as to whether and how far charge under section 411/414 of the IPC could at all be sustainable in view of the fact that neither the FIR nor the materials collected in the CD of that case can hardly lead one to hold prima facie that the properties allegedly refused to be parted with by the petitioner or the properties recovered or seized by Budge budge Police Station were stolen articles or that they were received by the accused/petitioner knowing them to be stolen and that the petitioner and the members of his family have disposed of the same. Indeed no reply could be advanced by Mr. Ganguly, learned Advocate, appearing for the de facto complainant to this submission and it is really a question how in the context of the facts of the case as pleaded in the FIR it could be said that the properties alleged in the possession of the accused petitioner are stolen properties. The properties were allegedly the "stridhan properties" of the complainant and while leaving matrimonial life they were left in her matrimonial home the members of which allegedly refused to part with those properties and in respect of which a charge under section 406 of the IPC was alleged and in fact chargesheet was already submitted under section 406 of the IPC along with section 498a against the petitioner and others. Unquestionably, the second FIR relating to self-same matter was in suppression of the fact that it was filed on 20.5.2006 just after turning down her prayer for further investigation of the earlier case only for the purpose of the recovery of the articles by the magisterial order dated 19.05.2006. Unquestionably, the second FIR relating to self-same matter was in suppression of the fact that it was filed on 20.5.2006 just after turning down her prayer for further investigation of the earlier case only for the purpose of the recovery of the articles by the magisterial order dated 19.05.2006. There has been thorough suppression of the fact that she had earlier filed a case under section 498a/406 of the IPC, that police asked her to assist them in the matter of search and seizure of the properties, that she allegedly sent a message that she was not interested in the properties and that her prayer for investigation for recovery of the articles which was made on 18.04.2006 was rejected by the learned Magistrate on 19.05.2006. Evidently, there has been investigation for the second time only to the extent of recovery of her stridhan properties and in the presence of the de facto complainant three items of the properties were recovered from the house of the petitioner on 23.07.1996 and those had been given in the custody of the complainant. It further appears that the husband had instituted a suit for restitution of conjugal rights and it was withdrawn on 06.08.2005 on the ground as alleged by Mr. Ganguly that meanwhile the wife filed an application under section 125 of Cr. PC and the husband filed a matrimonial suit for divorce on 24.08.2005 and the first fir was lodged by the wife on 09. 09. 2005 with East Bidhan Nagar P. S. (12.) IT becomes manifest that the petitioner has to face a charge under section 406 of the IPC along with the charge under section 498a of the IPC in the first criminal case consequent upon submission of the chargesheet under those sections of the law. Therefore, the following circumstances emerged : (a) Both the FIRs contained the charge of alleged misappropriation of the articles of the wife, opposite party. While in the first case the charge has been levelled under section 406 of the IPC, in the second case the charge has been levelled under section 411/414 of the IPC. Therefore, the following circumstances emerged : (a) Both the FIRs contained the charge of alleged misappropriation of the articles of the wife, opposite party. While in the first case the charge has been levelled under section 406 of the IPC, in the second case the charge has been levelled under section 411/414 of the IPC. (b) On the plain reading of the second FIR it is highly doubtful how a charge under section 411/414 of the IPC can be said to have been made clear when the facts are that admittedly the articles which allegedly were in the house of the petitioner were not the stolen articles nor can it be said that the petitioner received the same knowing to be stolen. The position is that the articles belonging to the wife were left in the matrimonial home and the petitioner allegedly refused to return the same to his wife. Therefore, it can be said that on the facts and circumstances of the case the complaint did not disclose any offence under section 411/414 of the IPC. (c) The wife falsely alleged in the second FIR that from the plaint of the mat Suit No. 1463 of 2005 she could be able to know that the husband had alleged therein that she had taken away her ornaments because just on the previous day her prayer for reinvestigation for the purpose of recovery of her articles was rejected by the learned Magistrate of east Bidhan Nagar in connection with the first case. (d) The opposite party/wife made clear suppression of the fact of her earlier case on identical allegation of facts and of the rejection of her prayer for further investigation by the learned Magistrate of East Bidhan nagar on 19.05.2006, i. e. , a day before she lodged the second FIR. (e) The law does not enjoin that two successive FIRs and that too by suppression of fact can be registered on self-same allegation of facts covering the self-same charge. (f) The petitioner-accused because of submission of charge-sheet in the first case has to face trial with regard to alleged misappropriation of articles of the wife and in the context thereof it is highly undoubtful how far a second investigation can be permitted on the self-same allegation of facts simply because of the fact that in the earlier case some properties could not be recovered. (g) When the second FIR was lodged in suppression of facts of the earlier case it clearly reveals a mala fide motive. (13.) IN the circumstances I am of the view that the second criminal proceeding is not maintainable. (14.) ACCORDINGLY, the application is allowed. The proceedings of the BGR No. 1839 of 2006 corresponding to Budge Budge Police Station Case No.72 dated 26.6.2006 under section 411/414 of the IPC is quashed. (15.) A copy of the judgment and the order shall be sent to the learned Chief judicial Magistrate, Alipore. (16.) URGENT xerox certified copies, if applied for, be supplied to the parties as early as possible. Appeal allowed.