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2017 DIGILAW 628 (CAL)

Sumitra Dan v. State of West Bengal

2017-07-18

DEBI PROSAD DEY

body2017
JUDGMENT : DEBI PROSAD DEY, J. 1. This application under Section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing of all proceedings of GR case No. 3461 of 2011 pending before learned Additional Chief Judicial Magistrate, Sealdah, 24 Parganas (South) corresponding to Kashipur police station Case No. 2558 of 2011 dated 31st July, 2011 for the offences punishable under Sections 498A/406/34 of the Indian Penal Code. The son of the petitioner was married to opposite party No. 2 (Sumitra Dan) on 10th of December, 2010 in accordance with the Hindu Rites and Customs and immediately after their marriage they left India and started residing in United States of America. Dispute cropped up between the married couple during their stay in United States of America and opposite party No. 2 returned to India and filed the case under reference along with one complaint case being No. 2263 of 2011 against the son of the petitioner and the petitioner alleging inter alia that the opposite party No. 2 was subjected to torture by the petitioner and her son during her stay in United States of America and that the petitioner and her son did not return the "Stridhan" properties of opposite party No. 2. 2. Despite best effort, notice could not be served upon the opposite party No. 2. However, learned Advocate for the state was directed to serve a copy of the notice along with the copy of the revisional application upon opposite party No. 2. It appears from the report submitted by the concerned police officer that opposite party No. 2 has already settled in United States of America and she left India after selling her properties and there is absolutely nobody to receive such notice on behalf of opposite party No. 2. The said report of concerned police station shall be retained with the record for future reference. 3. Learned Advocate appearing on behalf of the petitioner contended that in fact the marital tie between opposite party No. 2 and the son of the petitioner has been dissolved by a competent Court of law and the opposite party No. 2 had agreed to withdraw the instant criminal case as well as the application under Domestic Violence Act pending before the concerned Court. Learned Advocate for the petitioner has drawn the attention of the Court to page 64 of the application wherefrom it appears that the opposite party No. 2 had accepted by sending a letter to the concerned Court that the marital tie in between the parties has been dissolved and that the opposite party No. 2 in terms of the agreement arrived at by and between the parties had withdrawn the application filed by her under Domestic Violence Act. Recording such prayer for non-prosecution of opposite party No. 2, the application under Domestic Violence Act was accordingly dropped by learned Judicial Magistrate, 3rd Court at Barrackpore on 5th March, 2004. Annexure P 1 reveals that all the "Stridhan" properties of opposite party No. 2 have been returned to the father of the opposite party No. 2 since by that time the opposite party No. 2 had shifted to United States of America. It is apparent from the order dated 5th March, 2013 passed by learned Magistrate in complaint Case No. 2263 of 2011 that the marital tie between opposite party No. 2 and the son of the petitioner was dissolved in a divorce proceeding before the superior Court of New Jersey Chancery Division, Family part, County Hudson and the opposite party No. 2 had agreed to withdraw her claim or law suit against the petitioner and her son. 4. Learned Advocate appearing on behalf of the petitioner contended that pendency of the instant criminal case would serve no purpose and the petitioner and her son would suffer ignominy due to pendency of the instant criminal case. The opposite party No. 2 would not turn up to depose in the case under reference and accordingly there is absolutely no scope of any positive result in the case under reference. In that view of this case pendency of the instant criminal case is not at all required. 5. Lastly, there is absolutely no scope of recording any conviction against the present petitioner and her son in absence of opposite party No. 2, who had already received the amount of permanent alimony in terms of the divorce decree. The "Stridhan" properties have also been handed over to the father of the opposite party No. 2. Opposite party No. 2 has sold her property and shifted and settled in United States of America. The "Stridhan" properties have also been handed over to the father of the opposite party No. 2. Opposite party No. 2 has sold her property and shifted and settled in United States of America. Therefore, there is absolutely no scope of examination of opposite party No. 2 as witness in the criminal case. In that view of this case, the GR case mentioned herein above ought to be quashed. 6. Learned Advocate appearing on behalf of the State however did not dispute about the shifting of opposite party No. 2 to United States of America. On the contrary, learned Advocate for the State contended that the investigation has already been completed and the charge-sheet has been submitted. Learned Advocate for the State also drew the attention of the Court in respect of the statement of opposite party No. 2 recorded under Section 161 of the Code of Criminal Procedure during investigation. 7. Indisputably, if the statement of opposite party No. 2 remains uncontroverted, in that event the case of the prosecution may succeed. 8. On the contrary, there is absolutely no doubt from the documents filed with the revisional application that the marital tie in between opposite party No. 2 and the son of the petitioner has been dissolved by a competent Court of law and that the "Streedhan" properties of opposite party No. 2 have been returned in terms of the agreement arrived at by and between the parties. The son of the petitioner has also paid permanent alimony to opposite party No. 2. The opposite party No. 2 by sending a letter to the Court of learned Magistrate at Barrackpore has admitted that in terms of such agreement she is not willing to proceed with the case under Domestic Violence Act and accordingly the case under Domestic Violence Act has been dropped. It is, therefore, crystal clear that in any view of the matter opposite party No. 2 will not return to India to depose in terms of her statement recorded under Section 161 of the Code of Criminal Procedure by the investigating officer. In absence of any such evidence, the case under Section 498A of the Indian Penal Code will not serve any purpose of the prosecution. The pendency of such criminal case would be a mere formality and definitely will be an abuse of process of law. In absence of any such evidence, the case under Section 498A of the Indian Penal Code will not serve any purpose of the prosecution. The pendency of such criminal case would be a mere formality and definitely will be an abuse of process of law. In the premises set forth above it may safely be stated that pendency of such criminal case will be an abuse of law and there is absolutely no scope of any conviction of the petitioner or her son in absence of opposite party No. 2. 9. In that view of this case I find sufficient merit in the application under Section 482 of the Code of Criminal Procedure and accordingly the application is allowed. The GR case No. 3461 of 2011 pending before the learned Additional Chief Judicial Magistrate, Sealdah, South 24 Parganas corresponding to Kashipur police station case No. 2538 of 2011 dated 31st Day of July, 2011 under Sections 498A/406/34 of the Indian Penal Code is thus quashed. 10. Let a copy of this order be forwarded to the learned Additional Chief Judicial Magistrate, Sealdah, South 24 Parganas for his information and necessary noting in the trial registrar. 11. No order as to costs. The report submitted by learned Advocate for the State shall be retained with the record. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.