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2014 DIGILAW 676 (CAL)

Bidhan Chandra Mondal v. State

2014-07-24

R.K.BAG

body2014
JUDGMENT R.K. Bag, J. The petitioners have preferred this criminal revision under Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 03.01.2014 passed by the learned Judicial Magistrate, 9th Court, Alipore, District 24 Parganas, by which learned Magistrate refused to discharge the petitioners and framed charge against the petitioners and the co-accused persons under Sections 498A/323/506/34/406 of the Indian Penal Code and under Sections 3 /4 of the Dowry Prohibition Act, 1961. 2. It appears from the materials on record that the petitioners are the parents-in-law of the Opposite Party No.2 who happens to be the de -facto complainant of the criminal case. None appears on behalf of the Opposite Party No.2 inspite of service of notice as reflected from the contents of the affidavit of service filed on behalf of the petitioners. 3. Md. Sabir Ahmed, learned counsel appearing on behalf of the petitioners contends that learned Magistrate of the court below acted in excess of jurisdiction conferred on him by law by framing charge against the present petitioners, because no prima facie offence is made out against the present petitioners from the contents of First Information Report and statement of the witnesses recorded by the Investigating Officer in course of investigation of the case. According to Mr. Ahmed, the petitioners are liable to be discharged from the criminal case. 4. Mr. Amarta Ghosh, learned counsel appearing on behalf of the Opposite Party/State has referred to the contents of First Information Report and the statement of witnesses like Lopamudra Kamilya, Ruprekha Ghosh, Lalit Mohan Pandit and Manas Kumar Das in order to advance the argument that these petitioners used to ill treat the Opposite Party No.2 and used to incite the husband of the Opposite Party No.2 in order to inflict physical and mental torture on the Opposite Party No.2 and as such the present petitioners may be prosecuted with the aid of Section 34 of the Indian Penal Code. According to Mr. Ghosh, the petitioners cannot be discharged at this stage without recording of evidence by the trial court. 5. According to Mr. Ghosh, the petitioners cannot be discharged at this stage without recording of evidence by the trial court. 5. The proposition of law laid down by the Supreme Court for quashing of the criminal proceeding by invoking inherent power under Section 482 of the Code of Criminal Procedure as laid down in Paragraph 102 of the decision of “State of Haryana V. Bhajanlal” reported in 1992 SCC (Cri) 426 is as follows:- (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 6. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 6. In the instant case investigation is complete and charge sheet has been submitted by the court of learned Magistrate and learned Magistrate has also framed charge against the present petitioners and the co-accused person under Sections 498A/323/506/34/406 of the Indian Penal Code and under Sections 3/4 of the Dowry Prohibition Act, 1961. Accordingly, this court will have to scrutinize the contents of written complaint treated as First Information Report and the statement of witnesses and other documents referred to in Section 173 of the Code of Criminal Procedure for the purpose of arriving at the conclusion whether prima facie case is made out against the present petitioners in order to prosecute them on the allegation of committing offence under Sections 498A/323/506/34/406 of the Indian Penal Code and under Sections 3 /4 of the Dowry Prohibition Act, 1961. 7. On perusal of the written complaint treated as First Information Report, I find that the Opposite Party No.2 has made specific allegation against her husband, which includes, inter alia, (i) that the husband used to make himself absent from the house without any notice to the Opposite Party No.2, (ii) that the husband used to create pressure on the Opposite Party No.2 for bringing money from her father, (iii) that the husband was in the habit of abusing the Opposite Party No.2 with filthy language on flimsy pretext, (iv) that the husband assaulted physically the Opposite Party No.2 on some occasions, (v) that the husband prevented the Opposite Party No.2 from doing any job but abused her with filthy language for not having capacity to earn money. Apart from making these allegations against the husband in the First Information Report, the Opposite Party No.2 has alleged that the present petitioners incited the husband for inflicting torture on her. 8. On perusal of the statement of the witnesses recorded under Section 161 of the Code of Criminal Procedure, I find that one Lopamudra Kamilya, who happens to be the sister of the Opposite Party No.2 has stated that the present petitioners used to cause annoyance of the Opposite Party No.2 on trifling issues in the family. 8. On perusal of the statement of the witnesses recorded under Section 161 of the Code of Criminal Procedure, I find that one Lopamudra Kamilya, who happens to be the sister of the Opposite Party No.2 has stated that the present petitioners used to cause annoyance of the Opposite Party No.2 on trifling issues in the family. On perusal of Ruprekha Ghosh , who happens to be the friend of the Opposite Party No.2, I find that the present petitioners used to give ill-treatment to the Opposite Party No.2. On perusal of the statement of Lalit Mohan Pandit, who happens to be the father of the Opposite Party No.2 and Manas Kumar Das, who happens to be the family friend of the father of the Opposite Party No.2, I find that they have also stated about the ill-treatment meted out to the Opposite Party No.2 by the present petitioners. On perusal of the statement of other witnesses recorded by the Investigating Officer, I do not find any iota of allegation made against the present petitioners. Thus, on consideration of the statement of the witnesses recorded by the Investigating Officer and on consideration of the statement of the written complaint treated as First Information Report, I find that the Opposite Party No.2 has made only the allegation of inciting the husband of the Opposite Party No.2 by the present petitioners for inflicting torture, and other witnesses have stated about ill-treatment meted out to the Opposite Party No.2 by the present petitioners. It is pertinent to point out that the nature of ill-treatment has not been spelt out by any of the witnesses before the Investigating Officer of the case. Now, the question for consideration of this court is whether ill-treatment meted out to the Opposite Party No.2 by the present petitioners and the incitement given to the husband of the Opposite Party No.2 by the present petitioners will be sufficient for the purpose of framing of the charge against the present petitioners under Sections 498A/323/506/34/406 of the Indian Penal Code and under Sections 3 /4 of the Dowry Prohibition Act, 1961. 9. Section 498A of the Indian Penal Code provides for punishment for subjecting the wife to cruelty by the husband or the relatives of the husband, which is as follows: - “Section 498A. Husband or relative of husband of a woman subjecting her to cruelty. 9. Section 498A of the Indian Penal Code provides for punishment for subjecting the wife to cruelty by the husband or the relatives of the husband, which is as follows: - “Section 498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. – For the purposes of this section, ‘cruelty’ means – (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet demand.” 10. In the instant case from the statement of the witnesses recorded under Section 161 of the Code of Criminal Procedure and from the statement of the Opposite Party No.2 reflected in the First Information Report, I cannot persuade myself to infer any wilful conduct on the part of the petitioners which may drive the Opposite Party No.2 to commit suicide or to cause any grave injury or danger to her life or mental health or physical health. Nor is there any shred of evidence collected by the Investigating Officer from which inference can be made by this court about the harassment of the Opposite Party No. 2 by the petitioners in order to coerce her to meet unlawful demand of money. The logical inference is that the prima facie offence under Section 498A of the Indian Penal Code is not made out against the present petitioners. 11. Mr. The logical inference is that the prima facie offence under Section 498A of the Indian Penal Code is not made out against the present petitioners. 11. Mr. Ghosh contends that there is common intention on the part of the present petitioners in inflicting mental torture on the opposite party no.2 by giving ill treatment and by inciting the husband of the opposite party no.2 to commit the offence under Section 498A of the Indian Penal Code and as such the present petitioners may be prosecuted with the aid of Section 34 of the Indian Penal Code. In this connection I would like to rely on the decision of “Laxman Anaji Dhundale and Another V. State of Maharashtra” reported in (2007) 2 Crimes 225 (S.C.), where in the Supreme Court has laid down that in the absence of any credible evidence that there was any plan or meeting of minds of all the accused persons to commit the offence in question the charge under Section 34 of the Indian Penal Code cannot be established. In the instant case, I cannot persuade myself to infer from the materials collected by the investigating agency that there was prearranged plan or meeting of minds between the present petitioners and the husband of the opposite party no.2 in the commission of the offence in question. As a result, the charge cannot be framed against the present petitioners with the aid of Section 34 of the Indian Penal Code. 12. I have observed that what transpires from the statement of the witnesses and the contents of First Information Report is that the present petitioners used to incite the husband of the Opposite Party No.2 for inflicting torture and that the present petitioners used to give ill-treatment to the opposite party no.2 on some occasions. There is no iota of evidence on record from which the court can infer about the involvement of the present petitioners in any incident of inflicting any mental or physical torture on the Opposite Party No.2. Nor is there any shred of evidence to indicate that the present petitioners demanded any money or property from the Opposite Party No.2 or from the father of the Opposite Party No.2 at any material point of time. There is no evidence of entrustment of any property with the present petitioners and misappropriation of the said property by the present petitioners. There is no evidence of entrustment of any property with the present petitioners and misappropriation of the said property by the present petitioners. In view of the dearth of evidence against the present petitioners, I am of the opinion that there are no materials for the purpose of framing of charge against the present petitioners under Sections 323/506/34/406 of the Indian Penal Code and under Sections 3 /4 of the Dowry Prohibition Act, 1961. Accordingly, the continuation of the criminal proceeding against the present petitioners will be an abuse of the process of the court and as such I am inclined to quash the criminal proceeding against the present petitioners and set aside the impugned order of framing of the charge against the present petitioners by learned Magistrate of the court below by invoking my inherent power under Section 482 of the Code of Criminal Procedure, 1973. 13. Thus, the impugned order dated 03.01.2014 passed by the learned Judicial Magistrate, 9th Court, Alipore, District 24 Parganas in A.C.G.R Case No. 423 of 2011 is set aside so far as the charge against the present petitioners are concerned. The criminal proceeding against the present petitioners in connection with A.C.G.R. Case No. 423 of 2011 pending before the court of learned Judicial Magistrate, 9th Court, Alipore is, thus, quashed. However, the criminal proceeding will continue before the learned trial court so far as the other accused persons are concerned. The criminal revision is, thus, disposed of.