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2009 DIGILAW 179 (GAU)

Dipak Choudhury v. State of Tripura

2009-03-13

C.R.SARMA

body2009
ORDER C.R. Sarma, J. 1. Heard Mr. S. Lodh learned Counsel appearing for the petitioners also heard Mr. A. Ghosh, learned Additional Public Prosecutor for the respondents. 2. At the request of the learned Counsels for the parties and considering the nature of the case, the same is taken up for final hearing and disposal. 3. This is an application Under Section 482 of the Code of Criminal Procedure (for short "Cr. P.C.) for quashing and setting aside the judgment and order dated 22-7-2008 passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar imposing punishment of simple imprisonment for 2 (two) years with a fine of Rs. 3,000/- (three thousand), in default to suffer simple imprisonment for 3 (three) months in Criminal Appeal No. 12(2)/2008 thereby modifying the judgment and order dated 11-3-2008 passed by the learned Judicial Magistrate, Dharmanagar, North Tripura in G.R. Case No. 373 of 2007 convicting the petitioner No. 1 Shri Dipak Choudhury under Section 498A of the Indian Penal Code (for short "IPC") and sentencing him to undergo Simple Imprisonment for 3 (three) years and to pay a fine of Rs. 5000/- (five thousand), in default to suffer Simple Imprisonment for 6 (six) months. 4. The prosecution case, in brief, may be stated as follows: The petitioner No. 1 Shri Dipak Choudhury married petitioner No. 2 Smti. Rupa Choudhary as per Hindu rites and customs and a daughter was born out of the wedlock. Subsequently bringing the allegations of torture, mental harassment and demand of dowry the petitioner No. 2 Smti. Rupa Choudhury filed a case against the petitioner No. 1 Shri Dipak Choudhury. The trial Court, after hearing the learned Counsel for both the sides and considering the evidence on record convicted the petitioner No. 1 under Section 498A and sentenced him to suffer Simple Imprisonment for 3 (three) years and to pay a fine of Rs. 5,000/-(five thousand), in default to undergo further Simple Imprisonment for 6 (six) months. 5. Being aggrieved by the said judgment and order, the accused petitioner No. 1 approached the learned Additional Sessions Judge North Tripura, Dharmanagar by filing a Criminal Appeal No. 12(2) of 2008. 5,000/-(five thousand), in default to undergo further Simple Imprisonment for 6 (six) months. 5. Being aggrieved by the said judgment and order, the accused petitioner No. 1 approached the learned Additional Sessions Judge North Tripura, Dharmanagar by filing a Criminal Appeal No. 12(2) of 2008. The learned Additional Sessions Judge by the impugned judgment and order, dated 22-7-2008, while affirming the conviction modified the sentence passed by the learned trial Judge and sentenced the accused-appellant/Petitioner No. 1 to undergo Simple Imprisonment for 2 (two) years and to pay a fine of Rs. 3000/- (three thousand), in default to suffer Simple Imprisonment for 6 (six) months. 6. The petitioner No. 1 and petitioner No. 2 who are the husband and wife, by filing a joint petition have approached this Court for quashing and setting aside the conviction and sentenced imposed upon the petitioner No. 1, on the ground that they are peacefully living as husband and wife. 7. The learned Counsel appearing for the petitioners, drawing my attention to Annexure-4 i.e. the Marriage Certificate issued by the Marriage Recorder has submitted that the marriage of the said couple has been subsequently registered. The learned Counsel has further submitted that the said couple has been enjoying the family life along with their daughter and that in view of their peaceful living the conviction and sentence passed against the husband i.e. petitioner No. 1 is liable to be set aside to facilitate them to lead a peaceful family life. The learned Counsel for the petitioners relying on the decisions held in (B.S. Joshi v. State of Bihar) (2003) 10 SCC 234 (Ramchandra Singh v. M.P. High Court) and (B.T. Jayaram v. State of Karnataka has submitted that in view of the peaceful living of the petitioners as husband and wife, the conviction and sentence may be set aside for ends of justice. In the case of B.S. Joshi (supra). The question for determination was whether in exercise of the inherent power of the High Court under Section 482 of Cr.P.C. read with Articles 226 and 227 of the Constitution of India a proceeding under Sections 498A and 406 of IPC can be quashed? In the case, before the Hon'ble Apex Court, or joint petition was filed by the husband and wife for quashing the criminal proceedings, initiated under Section 498A and 406 of IPC. In the case, before the Hon'ble Apex Court, or joint petition was filed by the husband and wife for quashing the criminal proceedings, initiated under Section 498A and 406 of IPC. The Hon'ble Apex Court held that the High Court, in exercising of its inherent powers, can quash criminal proceedings of the first information report of complaint and that Section 320, Cr. P.C. does not limit or affect the power under Section 482 of Cr. P.C. in the case of Ramchandra Singh (supra) the accused-appellants were convicted under Sections 498A and 323 of IPC by the trial Court. During the pendency of the appeal there was a compromise between the parties and the appellants were acquitted of the offence under Section 323 of IPC. But the conviction under Section 498A of IPC was maintained as the same was not compoundable. A revision being filed, High Court dismissed the same considering the facts and circumstances of the case, the Hon'ble Apex Court, while upholding the conviction under Section 498A reduced the sentence passed against the appellants under Section498A to the period already undergone in respect of appellant Nos. 1 and 2 and the appellant No. 3 was allowed the benefit of the Probation of Offenders Act, 1958. In the case of B. J. Jayaram (supra) the appellant was convicted and sentenced under Section 498A of IPC and it was brought to the notice of the Apex Court that the appellant as well as the victim remarried and lived happily with their family members. In view of the above, the sentence imposed against the appellant was reduced to the period already undergone and the impugned judgment and order of the High Court was accordingly modified and the appeal was partly allowed. 8. In the present case, it is submitted that the accused-petitioner No. 1 has already undergone imprisonment for more than 5 (five) months, and that the couple has been enjoying peaceful family life. Admittedly, the provision of Section 498A of IPC has been brought as a social legislation for the purpose of protection and well being of women. 8. In the present case, it is submitted that the accused-petitioner No. 1 has already undergone imprisonment for more than 5 (five) months, and that the couple has been enjoying peaceful family life. Admittedly, the provision of Section 498A of IPC has been brought as a social legislation for the purpose of protection and well being of women. In such a situation if the woman is found to be living peacefully with her husband even after the filing of a case under Section 498A of IPC or after awarding conviction and sentence against her husband in a case filed by her for the offence under Section 498A, considering the future well being of the woman and for protection of the peaceful family life it is appropriate to deal with such cases leniently so that their family life is not disturbed. There can be no denying that a family having in peace can contribute a lot towards the development of the society and thus the society can be gainer. But a family with broken heart and without peace is a disturbing factor concerning all. Therefore, ends of justice demands that all possible efforts should be taken for creating an atmosphere for reunion and peaceful leaving of a married couple. 9. In the present case, considering the well being and the future of the petitioner No. 2, there is no reasonable ground to send her husband i.e. petitioner No. 1 to jail to serve out the remaining part of the sentences at this stage. Sending of her husband to jail may destroy their peaceful family life. In view of the above, ends of justice demands that the petitioner No. 1 should be exempted from serving out the remaining part of the imprisonment. 10. As discussed above, this Court is of the considered opinion that this is a fit case to exercise the powers conferred by Section 482 of Cr. P.C. in the facts and circumstances of the case, the sentence imposed upon the petitioner No. 1 by the impugned judgment and order is reduced to the period already undergone by him. The impugned judgment and order passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar is modified to the extent as mentioned above. 11. With the above direction Criminal Petition is partly allowed. Return the Lower Court Records. The Criminal Petition stands disposed of.