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2011 DIGILAW 466 (CAL)

Sunil Biswas @ Amar v. STATE OF WEST BENGAL

2011-03-31

SYAMAL KANTI CHAKRABARTI

body2011
JUDGMENT:- Syamal Kanti Chakrabarti, J. The present revisional application has been filed praying for quashing of the entire proceeding including charge sheet filed in connection with Karimpur Police Station Case No. 77 of 2007 dated 23.10.2007 corresponding to G. R. Case No. 531 of 2007 now pending before the Court of learned Additional Chief Judicial Magistrate, Tehatta, Nadia. 2. The petitioner contends that on the basis of a written complaint dated 23.10.2007 the aforesaid case was started on the allegation made by Gour Kishor Roy, the de facto complainant, alleging inter alia, that his daughter Yogmaya Biswas (Roy), aged about 38 years was given marriage to Ashis Biswas on 18th Falgun 1412 BS. But immediately after the marriage she was subjected to mental and physical torture. On 22.01.2007 at about 9:30 PM the de facto complainant came to know that the accused persons murdered his daughter and some unknown persons left the body of the deceased at Karimpur Hospital. On receipt of such complaint by the Police Station concerned investigation was undertaken and ultimately charge sheet has been filed under Section 498A/306 IPC by the IO against six accused persons including the present petitioner. On receipt of such charge sheet no. 12 of 2008 dated 09.02.2008 the learned Additional Chief Judicial Magistrate, Tehatta took cognizance of the offence on 12.02.2007 under Section 498A/306/34 IPC and fixed 16.06.2008 for supply of copy and appearance of the case. 3. Being aggrieved by and dissatisfied with such order the petitioner herein has prayed for quashing the proceeding against him since he is not directly connected with the alleged offence of torture or suicide, as the case may be. In fact, he is a friend of the husband of the victim and had no occasion to take part in the alleged mental or physical torture upon the victim since her marriage or involved in any act in any way which has instigated the victim to commit suicide. Therefore, continuation of such proceeding against him will be mere an abuse of the process of law and harassment of the petitioner for which he has prayed for quashing the same. 4. Therefore, continuation of such proceeding against him will be mere an abuse of the process of law and harassment of the petitioner for which he has prayed for quashing the same. 4. Learned lawyer for the State has opposed the move and contended that since charge sheet has already been submitted, the question of involvement of the petitioner/ accused will be considered by the learned Trial Court at the time of framing of charges and he will get ample opportunity to agitate on these point before the learned Trial Court. It is a pure question of fact which cannot be looked into by this revisional Court and the petitioner cannot claim any benefit of the Sections 482/401 Cr.P.C. at this stage. He has also furnished the relevant case diary to show the involvement of the accused in the alleged offence. 5. I have carefully considered the rival contentions of both the parties and perused the relevant case diary. It appears that as per Post Mortem Report the cause of death is ‘asphyxia’ caused due to Antimortem Suicidal Hanging. It is also mentioned in the Port Mortem Report that there was one small abrasion over the lower portion of back of chest of the victim measuring about ¾” x ¾” approximately and the hyoid bone was intact. In course of investigation it transpired from the statement of the brother of the victim, Biswarup Roy recorded under Section 161 Cr.P.C. that while he was returning from the matrimonial home of the victim at about 6:30 PM on the date of occurrence, he noticed that this brother-inlaw Ashis Biswas was gossiping at Nanta More with some of his friends of whom he knew I) Sunil Biswas, ii) Arjun Biswas and iii) Protap Roy. Of the aforesaid persons only Sunil Biswas has been charge sheeted in this case. 6. Learned lawyer for the petitioner submits that if the testimony of this witness is relied on it is not sufficient to prosecute a person under Section 498A/306 IPC. The petitioner is a friend of the husband of the victim and was not found at the place of occurrence, i.e., the matrimonial house of the victim where her alleged death took place on that night at about 9:30 PM. The present petitioner is also not named in the FIR and no allegation was made against him by the father of the victim in his FIR. 7. The present petitioner is also not named in the FIR and no allegation was made against him by the father of the victim in his FIR. 7. Where the name of a person is not mentioned in the FIR including the role played by him in the alleged offence mere statement of only one witness that the petitioner was found gossiping with the husband of the victim about 4 hours prior to the occurrence, cannot be treated as sufficient prima facie materials to prosecute a person under Section 498A/306 IPC. The learned lawyer for the State also candidly submitted that in course of investigation no other incriminating material has been collected by the IO in this case. 8. If the petitioner is treated as an accomplice, he is on same footing with Arjun Biswas and Pratap Roy who were found gossiping with husband of the victim on the date of alleged occurrence. But they are not impleaded by I.O. in this case. So the petitioner is entitled to claim same benefit under identical circumstances. Moreover, materials collected against the petitioner accused in course of investigation if unrebutted will not warrant any conviction of the accused in the long run. 9. Therefore, I fully subscribe to the views rendered by the learned lawyer for the petitioner that further continuation of this case will be mere an abuse of the process of law directed for harassment of the petitioner. To prevent such abuse of the process of law and miscarriage of justice, I hold that it is a fit case where the discretionary power of this Court under Section 482 Cr.P.C. should be exercised. 10. Accordingly, I hold that there are sufficient merits in this revisional application which is allowed. The instant proceeding being G. R. Case No. 531/2007 against the petitioner is hereby quashed and he is discharged but the same shall proceed against rest accused as per law. 11. The interim order granted earlier stands vacated. 12. The revisional application is thus disposed. The learned Court below is directed to proceed with the case as per law. 13. Let the case diary be returned to the learned Lawyer for the State at once. 14. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.