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2007 DIGILAW 40 (CAL)

SISTER MARY v. MICHELLE (JOHNSTON) SINGH

2007-01-29

ASHIM KUMAR ROY

body2007
( 1 ) IN this application under Section 482 of the Code of Criminal procedure invoking inherent jurisdiction of this Court, the petitioners sought for quashing of his prosecution under Section 325/120b of the Indian Penal code in connection with the C. R. Case No. 313/03 now pending before the learned Sub-Divisional Judicial Magistrate, Siliguri as well as the order of taking cognizance. ( 2 ) HEARD, Mr. Amarta Ghosh, learned Advocate, appearing on behalf of the petitioners as also Mr. Swapan Kumar Mallick, learned Advocate, appearing on behalf of the State. None appears on behalf of the opposite party No. 1. ( 3 ) AFFIDAVIT of service filed in Court be kept with the record, ( 4 ) THE opposite party No. 1 herein, Mrs. Michelle (Johnston) Singh who happened to be the wife of one Kiron Singh, lodged a complaint against the petitioners, i. e. Sister Marry and Sister Marie Burchmans the Principal and the Secretary of St. Joseph School. ( 5 ) IT is the case of the complainant/opposite party No. 1, as it appears from the perusal of the petition of complaint that both the complainant and her husband were the teachers in the said school. During the course of their employment, they became acquainted with each other and were married. However, such marriage between a Roman Catholic girl and a hindu boy had incurred severe displeasure of the accused persons and they started harassing the husband of the complainant on one pretext or other, knowing fully well that he was a diabetic and suffering from high blood pressure. The said accused persons started harassing him on different false pretexts and finally terminated his service. Due to such HI treatment and harassment the husband of the complainant becomes seriously ill and his condition became critical and finally her husband died. It is the further case of the petitioners that due to such harassment and ill treatment her husband has suffered irreparable loss and injury, in his body and mind which has resulted in his death and the accused persons are guilty of offences punishable under Sections 302/107/120b of the Indian penal Code. It is the further case of the petitioners that due to such harassment and ill treatment her husband has suffered irreparable loss and injury, in his body and mind which has resulted in his death and the accused persons are guilty of offences punishable under Sections 302/107/120b of the Indian penal Code. ( 6 ) A complaint with the aforesaid allegation being made before the learned Sub-Divisional Judicial Magistrate, Siliguri, C. R. Case No. 313 of 2003 was registered and the learned Sub-Divisional Judicial Magistrate, siliguri after taking cognizance, transferred the said case to the Court of the learned Judicial Magistrate, 2nd Court, Siliguri for trial. ( 7 ) FINALLY, the learned Judicial Magistrate, 1st Class, 2nd Court, siliguri after recording the initial deposition of the complainant and considering other materials on record refused to issue summons under sections 302 or 304 of the Indian Penal Code but issued summons under section 325/120b of the Indian Penal Code against the petitioners on the following findings : - "however, the materials in S/a and documents go to indicate the accd. Nos. 1 to 2 entered into a criminal conspiracy to harass the deceased oh one false pretext or the other knowing fully well that the deceased is a patient of high blood pressure and diabetes and therefore with the knowledge that they are likely to cause hurt to the deceased. As a consequence the deceased felt seriously ill and succumbed to his condition soon thereafter. Therefore the actions of the accd. Nos. 1 and 2 fall within the mischief of Section 325/120b, i. P. C. " ( 8 ) IN the instant case the only question arises for decision of this court whether on the allegation made in the complaint and in the initial deposition of the witnesses a case punishable under Sections 325/120b has been made out for which the Court has taken cognizance and issued summons. ( 9 ) THE Section 325 of the Indian Penal Code provides punishment for voluntarily causing "grievous hurt". Whereas "grievous hurts" are defined in Section 320 of the Indian Penal Code. According to such definitions the following kinds of hurt only are designated as "grievous" : - "first - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint. Whereas "grievous hurts" are defined in Section 320 of the Indian Penal Code. According to such definitions the following kinds of hurt only are designated as "grievous" : - "first - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint. Fifthly - Destruction or permanent impairing of the powers of any member or joint. Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. " ( 10 ) IT is, therefore, abundantly clear the provisions of Section 320 of the Indian Penal Code speaks for physical injury alone and definitely not of any mental injury. Injury, if any, as alleged in the instant case caused in mind does not fall within the ambit of Section 320 of the Indian Penal Code. As such in the present case when there is no allegation of causing any physical injury in the nature of grievous hurt within the meaning of Section 320 of the Indian Penal Code there cannot be any question of prosecution of the petitioner under Section 325 of the Indian Penal Code. ( 11 ) IN my view, the allegations made in the complaint together with those made in the initial depositions of the witnesses in its entirety and on the face of the same does not disclose commission of the alleged offence punishable under Section 325 of the Indian Penal Code. Hence, the continuation of the impugned prosecution against the petitioner will amount to an abuse of process of Court and accordingly the same stands quashed. The application stands allowed.