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2016 DIGILAW 934 (CAL)

Amitabha Mukherjee v. State of West Bengal

2016-11-28

INDRAJIT CHATTERJEE

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JUDGMENT : Indrajit Chatterjee, J. 1. The report as placed by Mr. Basu, learned counsel representing the State is taken on record. From the said report, it appears that the defacto complainant Tamali Mukherjee could not be traced out at Flat No. FE 12/6, Bidyasagar Pally, Jyangra, P.O. & P.S. Baguiati, Calcutta – 700 059. Let the report be taken on record. Naturally, none is present on behalf of the opposite party no.2. 2. On behalf of the State, Mr. Basu is present. 3. There is no need to keep the matter pending only for appearance of the opposite party No.2 who in spite of best effort of this court could not be traced out. The report of S.I Pradip kumar Sinha of Baguihati P.S dated 27.11.2016 as forwarded by the officer-in-charge of the said police station be taken on record. 4. On behalf of the petitioner, Mr. Mukherjee is present. 5. This is an application under Section 482 of the Code of Criminal Procedure, 1973 wherein the petitioner has prayed for quashing of the proceeding of G.R. Case No.2736 of 2012 arising out of Beleghata Police Station Case No.272 dated 28th August, 2012 under Section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, now pending before the court of learned Judicial Magistrate, 5th Court, Sealdah, 24 Parganas. Leave is granted to the learned counsel for the petitioner to amend the cause title of the petition. 6. The case so far relevant for the purpose of assessing this revisional application can be stated in brief, thus: that one FIR was lodged by the opposite party no.2 wherein she candidly claims that there was no marriage between the petitioner and the opposite party. From 2002, they started residing as husband and wife in a rented house. There are other allegations against the husband. She further stated in the complaint that she and her husband shifted from Baguiati to Beleghata and thereafter she came to know that one Mamata Bhatt who is now merely a chamber attendant of the present petitioner doctor living as husband and wife. 7. It is submitted by Mr. There are other allegations against the husband. She further stated in the complaint that she and her husband shifted from Baguiati to Beleghata and thereafter she came to know that one Mamata Bhatt who is now merely a chamber attendant of the present petitioner doctor living as husband and wife. 7. It is submitted by Mr. Mukherjee that one 125 Cr.P.C proceeding was filed being Maintenance Case No.527 of 2012 which is running page at 36 wherein the learned Magistrate, 1st Court, Barasat declined to pass any order for maintenance in favour of the present opposite party no.2. I repeat Tamali Mukherjee as it could not be established before the learned Trial Court that the said opposite party no.2 was the legally married wife which is the sine qua non to arrive at a conclusion under that section of the Code of Criminal Procedure. This Court is in the dark as to whether the said order was assailed by the opposite party no.2 before any competent forum. 8. It is submitted by Mr. Mukherjee that this opposite party no.2 was never a legally married wife of this petitioner and that Mamata Mukherjee Nee Bhat swear one affidavit before this Court i.e. at page 17 on 27th July, 2014 as regards this revisional application. It is the clear submission of Mr. Mukherjee that the marriage between Mamata Bhat took place on 19th January, 1995 and out of this wedlock, one male child was born namely Aditya Mukherjee on 2nd October, 1991 and that the alleged marriage between the petitioner doctor and the opposite party no.2 as per FIR was solemnised on 12th July, 2002 and that is one misnomer as the said marriage did never take place. 9. He has cited a decision of the Apex Court as reported in 2005 C.Cr.LR (SC) 609 : 2005 SCC (Cri) 877 (Savitaben Somabhai Bhatiya Vs. State of Gujarat & Ors.) wherein the Apex Court observed that while dealing with the term ‘wife’ as used in Section 125 of the Cr.P.C. that ‘wife’ means only legally married wife. He further contended by taking me to Chapter 20A of the Indian Penal Code to convince this Court that the proof of marriage is sine qua non in a proceeding under Section 498A of the said Code. 10. On behalf of the State, Mr. He further contended by taking me to Chapter 20A of the Indian Penal Code to convince this Court that the proof of marriage is sine qua non in a proceeding under Section 498A of the said Code. 10. On behalf of the State, Mr. Basu submited that the entire revisional application has been filed only on factual aspect of the case and it is the submission that the learned Trial Court be given a free hand to dispose of the proceeding pending before him under Section 498A of the I.P.C. and Sections 3 & 4 of the Dowry Prohibition Act. He further submitted that the order passed in M. Case No.578 of 2012 cannot be a binding guideline/precedent before the Trial Court who is in seisin of the matter. He further contended that the judgment relied upon by Mr. Mukherjee is totally based on Section 125 of the Code of Criminal Procedure and not under Section 498A of the Indian Penal Code. He has cited a decision of the Apex Court as reported in (2004) 3 SCC 199 (Reema Agarwal Vs. Anupam & Ors.) disposed of in connection with Criminal Appeal No.25 of 2005. 11. Be that as it may, the learned Trial Court is directed to consider the argument as I have noted on behalf of the petitioner while disposing of the application under Section 239 of the Code of Criminal Procedure, 1973. The learned Trial Court if he pleased to frame charge against the accused petitioner, then it must take all out effort to trace out the opposite party no.2. I repeat Tamali Mukherjee i.e. the FIR maker. 12. This revisional application is disposed of accordingly and answered in the negative. 13. The office is directed to communicate this order to the learned Trial Court and the learned Trial Court is also directed to fix up a date for hearing on the point of charge preferably within a period of one month from the date of communication of the order. The office is also directed to communicate this order to the learned Judicial Magistrate, 5th Court, Sealdah, 24 Parganas (South) by Special Messenger at the cost of the Court. 14. It may be noted that this Court has answered not points raised by Mr. Mukherjee touching the applicability of Section 498A or Sections 3 & 4 of the Dowry Prohibition Act. 15. 14. It may be noted that this Court has answered not points raised by Mr. Mukherjee touching the applicability of Section 498A or Sections 3 & 4 of the Dowry Prohibition Act. 15. CRAN 2861 of 2015 has been infructuous in view of total disposal of the CRR.