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2009 DIGILAW 4 (CAL)

Sanjoy Roy @ Dilip Roy v. STATE OF WEST BENGAL

2009-01-06

ARUNABHA BASU

body2009
Judgment :- (1) Heard learned Advocate for the petitioners and learned Advocate for the State. (2) The revisional application is directed to quash the proceeding in connection with G.R. No. 744 of 1997 arising out of Tamluk P.S. Case No. 224 dated 27.11.97 under Section 363/366/376 of the Indian Penal Code. (3) On conclusion of investigation, charge-sheet is already submitted against the petitioner herein. In this case F.I.R. was lodged by one Syamapada Mondal, who is impleaded as O.P. No. 2, raising allegation that in the absence of the informant his daughter, Purnima Mondal, who is impleaded as O.P. No. 3 left the house. Name of the petitioner is mentioned as one of the accused along with the others in the F.I.R. (4) The revisional application is filed before this Court on 25.2.08. Even assuming for the sake of argument that there is inordinate delay in filing the revisional application long after the submission of the charge-sheet but considering the nature of the allegations and particularly in view of the subsequent development, it is required to be examined by this Court whether the above mentioned criminal case shall continue. (5) In the F.I.R. the victim girl, that is, the O.P. No. 3 is stated to be aged 16 years. Along with the revisional application certain documents are filed which indicate that the O.P. No. 3 is now the wife of the accused/petitioner herein and she is aged 21 years. It further appears that consequent to the marriage solemnized between the petitioner and the O.P. No. 3 two children are born. It may be pointed out in this context that on the date of hearing the petitioner along with the O.P. No. 3 appeared before this Court and it is evident that parties as mentioned above are now married couple consequent to their solemnization of marriage and they are living as husband and wife. It further appears that two children are born after the union between the petitioner and the O.P. No. 3. Documents, such as, ration cards, certificate of birth, voters identity card supports the contention of the petitioner and the O.P. No. 3. It is evident that no document could be produced by the father of the victim girl to show that the victim girl was a minor on the date of the alleged occurrence. Documents, such as, ration cards, certificate of birth, voters identity card supports the contention of the petitioner and the O.P. No. 3. It is evident that no document could be produced by the father of the victim girl to show that the victim girl was a minor on the date of the alleged occurrence. If a major girl with her full consent decides to marry somebody else even in spite of the objection that may have been raised by the father, then there is no law under which such union can be restrained. Recourse to initiation of criminal case by the aggrieved father should be looked into in that perspective. (6) Learned Advocate for the petitioners while submitting that the proceeding may be quashed in view of the subsequent development and particularly in view of the fact that further continuation of the criminal case where the husband of the O.P. No. 3 is arrayed as one of the accused, may cause disturbance and rift in their matrimonial relationship. Learned Advocate for the petitioner has referred to the decision of the Honble Supreme Court in the case of Lata Singh v. State of U. P. and Anr. reported in (2007)1 C Cr LR (SC) 19, where the two-Judge Bench of the Honble Supreme Court while considering a similar position held as follows : "This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with any one she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husbands relatives. "We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioners brothers who were only furious because the petitioner married outside her caste. "We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioners brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioners bothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioners husband and his relatives." (7) From the decision of the Supreme Court as referred to above, it is evident that the Honble Apex Court took into consideration a similar fact situation as is now passed by this Court and quashed the criminal case under Section 366/368 of the Indian Penal Code. If this Court ignores the subsequent development, then in all probability, the resultant trial before the learned Court below would be nothing but a mockery of justice. No evidence could be led before the learned Court befow in the absence of any evidence of the victim girl in support of the charges under Section 363/366/376 of the Indian Penal Code. (8) As I have already observed that on the date of occurrence the O.P. No. 3 was not a minor, then the question of framing charge under Section 363 of the I.P.C. does not arise. As the petitioner and the O.P. No. 3 are married couple and as the marriage was solemnized according to the Hindu rites, then the question of commission of offence either under Section 366 or under Section 376 of the I.P.C. does not arise. Under these circumstances, if the O.P. No. 3 is compelled to appear before the Court of law to give her evidence, she would have no other option but to denounce the prosecution case particularly when one of the person facing the trial is her husband. This Court cannot ignore the apprehension on the part of the petitioner as well of the O.P. No. 3, such contingency if they are compelled to suffer may cause irreparable damage to their matrimonial relationship. This Court cannot ignore the apprehension on the part of the petitioner as well of the O.P. No. 3, such contingency if they are compelled to suffer may cause irreparable damage to their matrimonial relationship. Such a contingency, in my humble view, should also be avoided particularly when the parties before me are married couple and particularly when the marriage is solemnized according to the rites and customs applicable to the parties and especially when the children are born consequent to their relationship. (9) Under these circumstances, I am of the view that further continuation of the criminal case will be nothing but an abuse of the process of the Court. While doing so, this Court cannot ignore the mounting litigation now pending before the learned Court below. When for all practical purposes, continuation of the trial, which the petitioner is not facing, will be nothing but a mockery of justice, where the time of the Court would be utilized in fruitless litigation, then necessity to continue the same only on the point of technicality may not be a cogent reason for advancement of justice. (10) The revisional application is disposed of with the direction that the above-noted proceeding so far as the petitioner herein is concerned, stands quashed. (11) There will be no order as to costs. (12) Criminal Section is directed to supply urgent photostat copy of the order to the learned Advocate for the petitioner as and when applied for.