Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 838 (CAL)

Ashok Kumar Marda v. State of West Bengal

2016-10-06

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. 1. This revisional application has been filed under Section 482 of the Code of Criminal Procedure, 1973 by the petitioners, who are respectively the parents-in-law (P-1 and P2), brother-in-law (P-3) and sisters-in-law (P-4 and P-5) who have prayed for quashing of the proceeding, being Liluah Police Station Case No. 627 of 2013 dated September 25, 2013 under Sections 498A/323/406/34 of the Indian Penal Code and under Section 3/4 of Dowry Prohibition Act (leave is granted to amend the cause title accordingly) which is now pending before the learned Chief Judicial Magistrate, Howrah. It may be mentioned that during the pendency of the proceeding since, 2014, the charge sheet has been submitted by the Investigating Officer, being charge sheet No. 182/2014 dated May 31, 2014 in respect of the offence punishable under Sections 498A/323/406 read with 34 of the Indian Penal Code. 2. It is the submission of Mr. Majumder by taking me to the long F.I.R. that there is no allegation particularly against the brother in law and the sisters in law and that the entire offence was committed within the jurisdiction of Siliguri, District – Darjeeling and as such Howrah Court has no jurisdiction over the matter, therefore, the matter is to be transferred to the Court at Siliguri having jurisdiction. 3. He further submitted by taking me to the F.I.R. that even if the entire F.I.R. is believed then no offence under Section 498A can be said to have been committed either by the brother in law or by the sisters in law. He further submitted that the demand of dowry was made at Siliguri and not at Howrah and on that score also this Howrah Court has no jurisdiction over the matter. He submitted that in the charge sheet Section 3 and 4 of the Dowry Prohibition Act have not been clamped and as such claim of the de facto complainant that her father was forced to give dowry was not believed by the investigating agency. He took me to explanation (a) attached to Section 498A to say that the conduct of the accused person even if believed to be true, it cannot attract that definition of cruelty as made out in that explanation (a). He further prayed that this Court may look into the statements recorded by the Investigating Officer to substantiate the charge under Section 498A etc. He further prayed that this Court may look into the statements recorded by the Investigating Officer to substantiate the charge under Section 498A etc. of the Indian Penal Code. 4. On behalf of opposite party No. 2 Mr. Anand Keshri, learned Advocate submitted by taking me to entire complaint to say that there is enough allegations on all the accused persons and in the proceeding under Section 482 of the Criminal Procedure Code this Court cannot assess evidence or conduct a mini trial to dispose of the litigation. He further submitted that evidence is to be adduced by the parties before the Trial Court to substantiate as to whether the claim of the de facto complainant as made out in the F.I.R. are true or false and as such the prosecution must get the chance to adduce evidence. He further submitted that if this Court keep it’s searching eyes on the F.I.R. then this Court may come to a conclusion that there is prima facie case to go for trial and points agitated before this court may even be urged by the accused persons at the time of framing of charge. 5. As regard the jurisdiction point Mr. Keshri submitted that this case also falls under Section 406 of the Indian Penal Code. He took me to Section 181(4) of the Criminal Procedure Code to convince this Court that the legislature in its wisdom legislated that in dealing with an offence of criminal mis-representation or criminal breach of trust the Court of Howrah (as the case before this court) may enquire into or try this case as because in the F.I.R. there is specific allegation that these accused persons have committed breach of trust in respect of 'stridhan property’ of the de facto complainant and also in respect of her educational certificates. Mr. Keshri laid stress on the words “was required to be returned or accounted for” as used in sub-Section 4 of Section 181 of the Criminal Procedure Code as regards the allegations under Section 406 of the IPC as made out in the F.I.R. 6. As regards the allegations as made in the FIR to attract Section 498A of the IPC Mr. Keshri also submitted that explanation (b) attached to that section may be the touchstone to interpret as to whether there was such commission of crime. As regards the allegations as made in the FIR to attract Section 498A of the IPC Mr. Keshri also submitted that explanation (b) attached to that section may be the touchstone to interpret as to whether there was such commission of crime. He also took me to the F.I.R. to say that this de facto complainant even tried to commit suicide due to tortures on her but she desisted herself from doing so considering the fact that she was a mother of a tiny girl. 7. Mr. Saryati Dutta, learned Counsel appearing on behalf of the State has also challenged this revisional application by taking me to the Case Diary of the Liluah Police Station case to show that the witness like Falguni Chakraborty, Rita Biswas and Rinku Bandy (Pages 74 to 76 of the Case Diary) have supported the prosecution case. He also took me to page 91 of such Case Diary to convince that at the time of marriage huge amount of dowry was paid and the said marriage ceremony took place in Siliguri, District – Darjeeling. He also submitted that he is at one with Mr. Keshri that the Court at Howrah certainly has jurisdiction to entertain this application considering the fact that Section 406 is there in the charge sheet and Section 181 (4) of the Criminal Procedure Code may be taken into consideration to attract the jurisdiction of High Court. 8. In reply, Mr. Majumder submitted by taking me to Section 181(4) of the Cr.P.C. to convince this Court that the touch stone of this case is not the words “or was required to be returned or accounted for ………..”. 9. He cited several decisions on this point, those decisions are as follows : (1) (2004) 8 SCC 100 (Y. Abraham Ajith & Ors. –vs- Inspector of Police, Chennai & Anr.) wherein the cause of action did not take place in Chennai, i.e. the paternal house of the victim but the cause of action arose at Nagercoil, the Apex Court held, in such circumstances, that the proceeding pending before the Chennai Court be quashed and the complaint be allowed to be returned to the complainant to place the same before the appropriate court if the complainant so desires. It may be noted that it was a case under Sections 498A and 406 of the I.P.C. It may be noted that it was a case under Sections 498A and 406 of the I.P.C. (2) (2009) 1 SCC (Cri) 109 (Bhura Ram & Ors. –vs- State of Rajasthan & Anr.) wherein no cause of action arose in Rajasthan and the Apex Court held that the court of Rajasthan had jurisdiction over the matter which arose under Sections 498A/406 I.P.C which arose under Sections 498A/406 I.P.C. (3) 1986 CRI L.J. 2070 (Harjeet Singh Ahluwalia –vs- State of Punjab & Anr.) wherein in paragraph 8 the Hon’ble Single Judge of that court held discussing Section 181(4) of the Cr.P.C. that when the cause of action actually arose in Delhi and not in Amritsar, the court was afraid that if the articles of dowry are required to be returned at Amritsar then later interpretation will be fallacious. In the said paragraph, the learned Single Judge took pain to give illustration of such fallacious example like when the cause of action arose in Madras but the wife shifted to Calcutta or that the cause of action arose somewhere else but the wife started residing at Bombay then whether Section 181(4) of the Cr.P.C. can be restored to. (4) (2007) 1 C Cr LR (Cal) 800 (Shipra Raj Roy –vs- The State of West Bengal & Anr.) wherein the Single Judge of this Court taking into consideration Section 181(4) of the Cr.P.C. held in paragraph 12 that application of Section 181(4) of the Cr.P.C. will have far reaching consequences if the offence under Section 406 of I.P.C. occurred within the jurisdiction of Bombay Court, the jurisdiction of Durgapur Court is invoked by taking recourse to Section 179 or 181(4) of the Code, and (5) (2007) 5 SCC 786 (Asit Bhattacharjee –vs- Hanuman Prasad Ojha & Ors.) wherein the Apex Court also took up the interpretation of Section 181 (4) of the Code in paragraph 21 and proceeded to say “Section 181 provides for place of trial in case of certain offences. Sub-section (4) of Section 181 was introduced in the Code of Criminal Procedure in 1973 as there existed conflict in the decisions of various High Courts as regards commission of offence of criminal misappropriation and criminal breach of trust and with that end in view, it was provided that such an offence may be inquired into or tried by the court within whose jurisdiction the accused was bound by law or by contract to render accounts or return the entrusted property, but failed to discharge that obligation”. 10. As regards the vagueness of the complaint, Mr. Majumder submitted a decision of the Apex Court as reported in (2010) 1 SCC (Cri) 286 (Neelu Chopra & Anr. –vs- Bharti) wherein the Apex Court held in paragraphs 10 and 11 that: “10. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of the process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein, on the basis of a vague and general complaint which is silent about the precise acts of the appellants. 11. The High Court has merely mentioned that the allegations in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the jewellery. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against Rajesh”. 11. Relying on this judgment, Mr. Insofar as the offence under Section 498A IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against Rajesh”. 11. Relying on this judgment, Mr. Majumder submitted that in that case, the Apex Court considered as to the non-return of the dowry articles and the dates on which the complainant party asked for return of those articles. 12. It may be noted that in that case before the floor of the Apex Court the principal accused, i.e. the husband, Rajesh, died and the Apex Court took into consideration that all the allegations appear to be against Rajesh. 13. In counter to all these Mr. Keshri the learned advocate appearing on behalf of the opposite party submitted that in the decision of Y. Abrahamajit (supra) the Apex Court did not travel to examine the applicability of Section 181 (4) of the Cr.P.C and Apex Court only answered that on the particular fact and circumstance that Section 498A of the IPC is not a continuing offence. 14. Regarding the case of Bhura Ram (supra) Mr. Keshri submitted that in that decision the Apex Court only considered Section 177 of the Cr.P.C and as regards the place of trial on the given factual scenario. Regarding the decision of the Punjab and Haryana High Court in Harjeet Singh (supra) Mr. Keshri contended that it is not a precedent as Gujarat High Court in its decision as reported in 2004 (1) AICLR 503 (Raginiben Gunvantsinh Tank vs. Gunvantlal Keshavlal Tank & Ors.) took just the contrary view wherein the court held in a case where the marriage between the complainant-wife and the respondent no.1-accused had taken place at Vadodara it would not be proper or legal to dismiss the present criminal revisional application merely on the ground that the petitioner-complainant wife has filed a suit for maintenance at Vadodara, the court observed that the complaint cannot be thrown out on the assumption that the petitioner/wife is trying to misuse privilege emerging from Sub-section 4 of Section 181 of the Cr.P.C by initiating proceeding to terrorize the earnings spouse just to harass him. 15. Mr. 15. Mr. Keshri has relied upon the decision of the Apex Court as reported in 2011 Cr.L.J 4835 (Kushal kumar Gupta and another vs. Mala Gupta) wherein the Apex Court in Paragraph-7 observed “……As it stands, the complaint does indicate that a part of the cause of action arose in Patiala, thus attracting the provisions of Section 181 (4) of the Criminal Procedure Code The High Court has quite rightly observed that on a bare perusal of the complaint, the Patiala Court has jurisdiction to entertain the complaint. 16. Mr. Keshri has relied upon the decision of the Apex Court as reported in 1985 AIR SC 628 (Pratibha Rani vs. Suraj Kumar and Another) observed that even if present property of wife is jointly kept it would be deemed expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. 17. Regarding the decision of our High Court as passed in Shipra Raj Roy (supra) Mr. Keshri submitted that the said decision cannot be apply in the facts and circumstances in that case before the floor of this Court as there was no averment in the FIR that on demand the accused persons refused to return “Stridhan articles” or converted the same to their own use which is very much there in the present FIR. Regarding the decision of the Apex Court as passed in Arulvelu and Another (supra) he submitted in that case the Apex Court observed that the complaint was sadly vague and he took me to the complaint/FIR of the present case to show that there is no vagueness in the said complaint and as such the above decision will not apply on the factual aspect of this case. 18. This court on the facts and circumstances is satisfied that the decision of the Apex court as passed in Y. Abrahamajit (supra) and Bhura Ram (supra) will not apply in this case. The decision of Punjab and Haryana High Court in Harjeet Singh (supra) cannot be a guiding factor for this court. The line of approach as taken up by the Hon’ble Single Judge is not convincing to this court and I respectfully differ with the same. The decision of Punjab and Haryana High Court in Harjeet Singh (supra) cannot be a guiding factor for this court. The line of approach as taken up by the Hon’ble Single Judge is not convincing to this court and I respectfully differ with the same. The decision of Gujarat High Court in Raginiben Gunvantsinh Tank (supra) is more convincing to this court to be relied upon. This court is also satisfied that the decision of this court as passed in Shipra Raj Roy (supra) is distinguishable on fact. 19. Regarding the decision of the Apex Court in Neelu Chopra (supra) as cited by Mr. Mazumder this court on scrutiny of the FIR is satisfied that there is no vagueness in it to attract this decision. Regarding the decision of the Apex Court as passed in Y. Abrahamajit (supra) this court is satisfied that in that case Section 181 (4) of the Cr.P.C was not taken into consideration by the Apex court and as such the analogy cannot apply in the present case before the floor of this court. The decision of the Apex Court as passed in Asit Bhattacharjee (supra) cannot apply in this case as in that case before the floor of this Apex Court the bone of contention of the parties was regarding jurisdiction to make investigation and Section 181 (4) was faintly considered by the Apex Court but it did not illustrate the clause “or was required to be return or accounted for, by the accused person”. 20. I have gone through the FIR and keeping my searching eyes on the recitals of the FIR this Court is satisfied that in the FIR there are allegations against all the accused persons. There is specific claim that the husband and the parents-in-law did not return back the Stridhan articles. The FIR has vividly described different modes of torture on the victim. The argument of Mr. Mazumder that in the FIR these petitioners have not been roped is not convincing to this Court and there is no question of quashing of the proceeding simply on that ground. The trial court will consider at the time of framing of charge as to whether there are materials against all the accused persons. The petitioners will be at liberty to agitate the points before that court. 21. The trial court will consider at the time of framing of charge as to whether there are materials against all the accused persons. The petitioners will be at liberty to agitate the points before that court. 21. This Court will have to answer whether the Chief Judicial Magistrate, Howrah has any jurisdiction over the case. It is true that as per FIR the entire incident took place at Siliguri, district-Darjeeling even the marriage ceremony took place there and as such the entrustment of the “Stridhan” articles were also made at Siliguri. It may not be out of place to mention that husband of the petitioner is one influential advocate of that Siliguri Court. Thus, the only point to attract the jurisdiction of Howrah Court lies as regards the interpretation of Section 181 (4) of the said Code. The Apex Court in its decision as adduced in Kushal Kumar Gupta (supra) considered that Section 181 (4) of the Code can suitably be attracted. The Single Bench decision of Gujarat High Court as passed in Rajiniben Gunvantsinh Tank (supra) is there to protect the interest of disheartened lady who was forcibly driven out of the matrimonial home and is residing at her paternal house. The said court held that complaint cannot be thrown out on assumption that the petitioner wife is trying to misuse the privilege granted by the legislature. The decision of our High Court as passed in Shipra Roy Raj (supra) cannot be made applicable in this case as in that case it was not even a case of the de facto complainant that the accused persons refused to return the ‘Stridhan’ articles or converted the same to their own use but it is very much the case before the floor of this Court. This court is also not unmindful the Single Bench Decision of Punjab & Hariyana High Court as passed in Harjeet Singh (supra) wherein the single judge was not willing to extend the said benefit to the wife or husband on the ground that it may be used as one weapon of offence to terrorise, harass or sub-judicate the other marital partner and he/her family members. When the legislature in its wisdom has given such a right by amending Section 181 (4) of the Code in the year 1978 the judicial authority cannot deprive a citizen of India such advantage acquired by law on the ground that it may be misused. Section 181(4) of the Code runs thus: “Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.” (emphasis supplied by me) 22. This Court wants to emphasize on the word ‘or was required to be returned or accounted for, by the accused person’. It is true that as per claim of the de facto complainant the dowry was paid at Siliguri and as per FIR when the victim opposite party was driven out from her matrimonial abode she claimed her ‘Stridhan’ articles including her certificates but those were not given to her and as such this Court is satisfied that there is prima facie case under Section 406 of the Indian Penal Code. 23. It is the admitted position that at present this opposite party wife is residing at her father’s house at Lilua, Howrah. Thus, if the articles are to be returned after the conclusion of the trial the venue of such return must be either the court at Howrah or the residence of the de facto complainant, the victim of this case. Thus, this Court is satisfied that interest of justice demands that in this scenario the protection must be given to the deserted lady by applying Section 181 (4) of the Code. The legislature in its wisdom amended that sub-section and if such advantage has been given to the wife or the de facto complainant why should the court will take out that advantage from her mouth. Her entitlement as per law should not be taken out in the disguise that such sub-section may be used just to oppress her counterpart. 24. Thus, in view of the discussion so long made this court is satisfied that there is enough of material to go for trial even against the petitioners. Her entitlement as per law should not be taken out in the disguise that such sub-section may be used just to oppress her counterpart. 24. Thus, in view of the discussion so long made this court is satisfied that there is enough of material to go for trial even against the petitioners. This court is also satisfied that in view of Section 181 (4) of the Cr.P.C, the Chief Judicial Magistrate, Howrah has perfect jurisdiction over the case. Thus, this application under Section 482 of the Code of Criminal Procedure, 1973 is answered in the negative and dismissed accordingly. 25. Department is directed to forward a copy of this order to the learned trial court. 26. Interim order, if any, stands vacated. The learned trial court is directed to proceed with the trial as per law as expeditiously as possible.