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2017 DIGILAW 966 (GAU)

HARIDEV DAS v. NAYAN KUMAR DAS

2017-07-21

M.R.PATHAK

body2017
JUDGMENT : M.R. Pathak, J. Heard Mr. Gautam Baishya, learned counsel for the accused petitioners. Though notice on the complainant/sole opposite party was served, he did not enter appearance in the matter and as such, the matter is proceeded ex-parte against the said opposite party. 2. Petitioners herein are husband and wife and their daughter, namely, Smti. Vaishali Das was married to the son of the sole opposite party/complainant namely, Priyanuj Das. On 01.11.2012, the marriage between the petitioners' daughter and son of the opposite party/complainant was solemnized under Special Marriage Act, 1954 (hereinafter referred to as 'the Act, 1994') and later, their marriage was socially performed on 17.01.2013 at Gauhati. While petitioners' daughter was living in her matrimonial home in the house of the opposite party with her husband, she was behaved cruelly and was abused for not providing expensive articles and gifts as dowry. Since the son of the sole opposite party/complainant, husband of the daughter of the petitioners physically tortured her, the marriage between petitioner's daughter and son of the sole opposite party/complainant was on turmoil. Said Priyanuj Das, husband of the petitioners' daughter and son of the sole opposite party filed an application under section 23 of the Special Marriage Act, 1954 before the Principal Judge, Family Court, Kamrup at Gauhati being FC (Civil) Case No.768/2013 for his judicial separation with the petitioners' daughter, which was subsequently withdrawn by him. Thereafter, he filed another application under Section 27 of the said 1954 Act, for a decree dissolving their marriage which was registered as FC (Civil) Case No. 131/2014 and the same is pending before the learned Principal Judge, Family Court, Kamrup at Guwahati. On receipt of notice of said FC (Civil) Case No. 131/2014, the petitioners' daughter filed her written statement in the said matter. 3. In the meanwhile, because of such physical and mental torture, cruelty and demand for dowry made on her by her husband and in-laws, the daughter of the petitioners on 14.03.2014 lodged an FIR before the Officer-in-Charge of All Women Police Station, Panbazar, Guwahati against the opposite party herein and his other family members which was registered as All Women Police Station Case No. 40/2014 under Sections 498-A/506/34 IPC. Being furious with filing of such police case against them, the opposite party herein as complainant filed a criminal complaint being CR Case No. 751C/2014 before the learned Chief Judicial Magistrate (CJM), Kamrup (Metro) Guwahati on 11.3.2014 against the present petitioners, alleging commission of offences under Sections 506/500/34 IPC. The learned CJM, Kamrup after receipt of the said complaint pertaining to said CR Case No.751C/2014 of the opposite party/complainant transferred the same to the Court of learned Judicial Magistrate First Class (JMFC), Kamrup (M), Guwahati for its disposal. After recording the statements of the complainant/opposite party and his witnesses under Section 200/202 of CrPC, Learned JMFC, Kamrup (M), Guwahati, the Trial Magistrate on 23.07.2014 in said CR Case No. 751C/2014 took cognizance of the offences under Sections 294/506 IPC against the petitioners and issued summons to them in the said complaint case. 4. Being aggrieved with the said order of the learned Trial Magistrate dated 23.07.2014 passed in CR Case No.751C/2014, the petitioners herein have preferred this criminal petition praying for quashing the proceeding of said CR Case No. 751C/2014 against them. 5. This Court while issuing notice in the present case on 26.09.2014 to the sole opposite party/complainant, in the interim, stayed the further proceeding of said CR Case No. 751C/2014 against the petitioners, which is still in force. 6. Section 294 IPC relates to obscene acts and songs and it reads as follows : "294. Obscene acts and songs - Whoever, to the annoyance of others- (a) Does any obscene act in any public place, or (b) Sings, recites or utters any obscene song, balled or words, in or near any public place, Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both." 7. The essential ingredients for Section 294 IPC are - (i) an obscene act must have been done in public place or (ii) the act or song or ballad or words were obscene and (iii) there acts were done by the accused causing annoyance to others. To bring home an offence under Section 294 IPC there has to be (a) that the accused did an obscene act in public place or (b) sang, recited or uttered any obscene song, ballad or words in or near any public place and (c) that such act or acts caused annoyance to others. 8. To bring home an offence under Section 294 IPC there has to be (a) that the accused did an obscene act in public place or (b) sang, recited or uttered any obscene song, ballad or words in or near any public place and (c) that such act or acts caused annoyance to others. 8. Further, Section 506 IPC relates to punishment for criminal intimidation. the offence of criminal intimidation is defined under Section 503 IPC and Section 506 IPC provides punishment for it. The essential ingredients of Section 503 IPC are that (1) threatening a person with any injury; (i) to his person, reputation or property; or (ii) to the person or reputation of any one in whom that person is interested, (2) and the threat must be with intent (i) to cause alarm to that person or (ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat or (iii) to cause that person to omit to do any act which that person is legally entitled to as the means of avoiding the execution of such threat. 9. To bring home an offence under Section 506 IPC it is required to prove (a) that the accused threatened the victim; (b) that this threatening was with any injury to his person, reputation or property or to the person, reputation or property of another in whom the victim is interested, (c) that this threatening was intended to cause alarm to the victim or to cause the victim to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to as the means of avoiding the execution of such threat; (d) that the victim has in fact being alarmed by the threat; the threat to injury may be in relation to reputation of a deceased person. 10. From the reading of the complaint filed by the complainant/the opposite party herein, it is seen that the date of alleged occurrence of the offence is 09.03.2014. 10. From the reading of the complaint filed by the complainant/the opposite party herein, it is seen that the date of alleged occurrence of the offence is 09.03.2014. It was alleged in the complaint that the accused persons of the case including the present petitioners approached the complainant for a amicable settlement with regard to the case being FC (Civil) 131/2014 pending before the Family Court at Guwahati between his son and daughter of the petitioners and a discussion was held in that regard on 09.03.2014 in the house of one Sri Pradip Das at Nizarapar, Guwahati, who is the brother of the complainant. The complainant categorically alleged that during such discussion in the house of his said brother Pradip Das, one Sri Akan Das all of a sudden started scolding the complainant in a ferocious mood and threatened the complainant that he would send the complainant's son, Priyanuj Das to jail at least for 3 months under Section 498-A IPC or many others. The complainant further alleged that said Akan Das challenged him by saying that if he could not send the complainant's son Priyanuj Das to jail, he would cut his own hand. 11. From the complaint filed by the opposite party in said CR Case No. 751C/2014, the petitioners have brought to the notice of the Court that there is no specific averments regarding any such threatening given by the petitioners to said complainant except alleging that the present petitioners also abused and threatened him to defame his reputation by sending his son to jail by indulging 498-A IPC. Further, from the statement made by the said complainant/opposite party before the Trial Magistrate under section 200 CrPC, 1973 it is seen that he submitted that on 07.03.2014, said Akan Das, maternal uncle of his daughter-in-law and the present petitioners came to his house for a discussion regarding mutual divorce as in the meanwhile, his son had filed a divorce case against the daughter of the petitioners and discussed the issue regarding Rs. 50 Lakhs, which was not accepted by the complainant and at that point of time, said Akan Das informed/threatened him that he would send the complainant or his wife or his son to jail for three months under Section 498-A IPC and if he failed to do so, he would cut his own hand. 50 Lakhs, which was not accepted by the complainant and at that point of time, said Akan Das informed/threatened him that he would send the complainant or his wife or his son to jail for three months under Section 498-A IPC and if he failed to do so, he would cut his own hand. In his said statement, the complainant also stated before the Magistrate that the petitioner No.1 threatened him over phone. 12. From the records of the case, it is also seen that the statement of the complainant was recorded by the learned Trial Magistrate on 08.05.2014 and that there is dissimilarity in his allegations and statements made in his complaint in said CR Case No. 751C/2014 that he filed by swearing affidavit and the statements before the concerned Trial Magistrate which he made on oath. The complaint reveals that cause of action arose on 09.03.2014 in the house of one Sri Pradip Das, his brother; whereas in his deposition under section 200 CrPC, 1973 before the Trial Magistrate, the complainant himself stated that the incident occurred on 07.03.2014 in his house. Again from the said deposition of the complainant, it is also seen that except the statement that the petitioner No.1 threatened him over phone, there is nothing in his said statement against the petitioners. It is also seen that the complainant did not state that during such discussion his witness Nos. 1 and 2, Sri Pradip Das and his son, Priyanuj Das respectively were present at the place of occurrence. 13. From the records it is seen that said Sri Pradip Das, the witness No. 1 of the complainant, in his statement under section 202 CrPC, 1973 before the Trial Magistrate on 18.06.2014 stated that when the accused persons came to his house on 09.03.2014 for a mutual settlement regarding the divorce of the son of the complainant and the daughter of the accused petitioners, the accused persons demanded Rs. 50 Lakhs from them for such mutual settlement and alleged that Sri Akan Das, maternal uncle of the daughter-in-law of the complainant threatened him that he would send the complainant and his son to jail at least for three months otherwise he would cut his own hand and that the accused persons threatened the complainant over phone. 50 Lakhs from them for such mutual settlement and alleged that Sri Akan Das, maternal uncle of the daughter-in-law of the complainant threatened him that he would send the complainant and his son to jail at least for three months otherwise he would cut his own hand and that the accused persons threatened the complainant over phone. Similarly the witness No. 2, son of the complainant/son-in-law of the petitioners in his statement under section 202 CrPC, 1973 before the Trial Magistrate on 10.07.2014 stated that he was not present in the said discussion held on 09.03.2014 in the house of Sri Pradip Das and in his statement allegations was only against said Sri Akan Das. 14. From the above it is seen that the statements of the complainant and his witness No.1 are in dissimilarity. Moreover, the complainant's son, his witness No. 2, as per his own statement was not present at the place of occurrence as stated by him and he is only hearsay witness. Further, neither in the complaint petition nor in the statement of the complainant or his witness No.1, there is no such specific averments made against the accused petitioners alleging the offences under Sections 294/506 IPC. On perusal of the records of the case as well as the complaint filed by the complainant/the opposite party herein and the statements of the complainant and his witnesses, no such ingredients of Sections 294/506 IPC are found against the petitioners, as the alleged incident took place inside the house of one Sri Pradip Das and in during a heated arguments between them, the complainant was allegedly abused by the other accused of the case and not by the present petitioners. The Court is of the view that abusing someone that he and/or his family members, relatives or someone from his near and dear shall be sent to jail under Section 498-A IPC, the person who made such statement or said such statement cannot be considered as a criminal act under Section 294 and/or 506 IPC. 15. The Court is of the view that abusing someone that he and/or his family members, relatives or someone from his near and dear shall be sent to jail under Section 498-A IPC, the person who made such statement or said such statement cannot be considered as a criminal act under Section 294 and/or 506 IPC. 15. For the reasons above, this Court is of the view that if the said CR Case No. 751C/2014, that was registered on the basis of the complaint of the complainant/opposite party, is allowed to continue on the said backdrop, against the petitioners for the alleged offences under Sections 294/506 IPC, it would be an abuse of the process of the Court and therefore, for the ends of justice, the proceeding of said CR Case No. 751C/2014 and the complaint filed by the sole opposite party in the said CR Case against the present petitioners, the proceeding of which is presently pending before the learned Judicial Magistrate First Class, Kamrup (Metro), Guwahati are set aside and quashed. Accordingly, this criminal petition is allowed. 16. The interim order dated 26.09.2014 passed earlier in this proceeding stands merged with this order. 17. Registry shall return the LCR to the Court of learned Judicial Magistrate, First Class, Kamrup (Metro), Guwahati along with a copy of this order.