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2011 DIGILAW 640 (CAL)

Sudip Roy v. STATE OF WEST BENGAL

2011-05-06

KALIDAS MUKHERJEE

body2011
JUDGMENT KALIDAS MUKHERJEE, J. 1. THIS is an application under Section 397/410 read with Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of the charge-sheet being No. 135/04 dated 5.8.2004 and the proceedings instituted thereon arising out of Durgapur P.S. Case No. 139/04 dated 16.6.2004 under Section 498A/323/34 of the Indian Penal Code now pending before the Court of learned Additional Chief Judicial Magistrate, Durgapur, Burdwan. 2. THE petitioner Sudip Roy is the brother-in-law as mentioned in the F.I.R. The F.I.R. was lodged by de facto complainant alleging that she was subjected to torture by her husband in her matrimonial home. The family members of her father tried for settlement, but to no effect. On 15.06.2004 at night the de facto complainant was severely assaulted and she sustained bleeding injury in her ear. 3. THE other accused persons assisted the husband for committing torture upon her. The sister-in-law and her husband reside at 3A/34, S.N. Banerjee Road, Police Station Durgapur, District- Burdwan and the husband takes instruction from them in the matter of committing torture. 4. CHARGE-sheet was submitted under Section 498A/323/34 of the Indian Penal Code. The learned Counsel appearing for the petitioner submits that the petitioner resides in a different place and it is evident from the F.I.R. and the charge-sheet. The learned Counsel further submits that in the F.I.R. there is no specific mention about the role played by the accused persons other than husband. 5. THE learned Counsel for the petitioner has referred to and cited decision reported in (2010) 3 Supreme Court Cases (Cri) 473 [Preeti Gupta and Anr. Vs. State of Jharkhand and Anr.]. 6. THE learned Counsel further draws my attention to the statements of the witnesses wherefrom it would appear that the petitioner herein resides in a different place. The allegations and the statements of the father of the victim under Section 161 Cr.P.C. as to the role played by the other accused persons did not find reflection in the F.I.R. Under such circumstances the learned Counsel submits that the case cannot proceed against the petitioner and he should be discharged. The learned Counsel appearing for the State submits that the charge was framed in the year 2007 and witnesses are being examined and only to frustrate the proceedings, the instant application has been filed. The learned Counsel appearing for the State submits that the charge was framed in the year 2007 and witnesses are being examined and only to frustrate the proceedings, the instant application has been filed. It is contended that at this stage there is no scope for quashing of the proceedings. 7. THE learned Counsel appearing for the Opposite Party No. 1 submits that charge was framed on 7.07.2007 and at this stage there is no scope for interference. 8. THE learned Counsel appearing for the petitioner further submits that vide Order No. 37 dated 7.04.2011 the learned Court below closed the evidence of P.W.1 rejecting the prayer for time of the learned Defence Counsel. The learned Counsel of the petitioner contends that the allegation of mere aiding or abetting the husband in the matter of commission of the offence under Section 498A, Indian Penal Code is not sufficient for the continuation of the proceeding. 9. I have gone through the statements of the witnesses recorded under Section 161 Cr.P.C. The copy of the Order No. 37 dated 7.04.2011 shows that the learned Counsel for the accused submitted before the learned Court below that the matter was pending before the Hon'ble High Court and he was not in a position to cross-examine the P.W.1. 10. THE learned Magistrate thereafter closed the evidence of P.W.1. Since the trial has already commenced it would not be proper to go into the allegations raised in the F.I.R. or to look into statements of the witnesses recorded under Section 161 at this stage of the proceedings. The petitioner is at liberty to raise these points at the appropriate stage of the proceedings in the learned Court below. 11. SINCE the learned defence Counsel submitted before the Court below that the matter was pending before the Hon'ble High Court and prayed for time and the learned Court, having rejected such plea and closed the evidence of P.W.1, I find it expedient in the interest of justice to give an opportunity to the defence to cross-examine P.W.1, otherwise the petitioner herein will be highly prejudiced. 12. I, therefore, direct that the learned Magistrate will give an opportunity to the defence to cross-examine P.W.1 and thereafter will proceed to dispose of the case according to law. It is made clear that I have not entered into the merits of the matter. 12. I, therefore, direct that the learned Magistrate will give an opportunity to the defence to cross-examine P.W.1 and thereafter will proceed to dispose of the case according to law. It is made clear that I have not entered into the merits of the matter. With the observations aforesaid, the application is thus, disposed of. 13. URGENT Photostat certified copy, if applied for, be handed over to the parties as early as possible.