1 IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT: THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRR 3263 of 2006 Debabrata Banerjee
Papiya Banerjee (Ganguly) & Anr.
For the Petitioner : Mr. Sekhar Kr. Bose, Sr. Advocate Mr. Sudipto Moitra, Sr. Advocate Mr. Soubhik Mitter For the State : Mr. Arijit Ganguly Heard on : 10/02/2020 Judgment on : 21/02/2020 Tirthankar Ghosh, J:-
The revisional application has been preferred for quashing the proceedings arising out of Complaint Case No. 896 of 2003 under Sections 498A & 406 of the Indian Penal Code and under Sections 3 & 4 of the Dowry Prohibition Act pending before the Ld. Chief Judicial Magistrate (CJM), Tamluk, Purba Midnapur. In spite of service none appeared for the opposite party, as such Mr. Arijit Ganguly, Ld. Advocate appeared for the State and advanced his submissions.
The opposite party No.1 being the complainant initiated the case against the present petitioner and three others. It is seen in the petition of complaint that the petitioner has been described as the elder brother-in-law of the complainant, or the elder brother of her husband (Subrata Banerjee).
The allegations made in the petition of complaint is that the opposite party No.1 namely Papiya Banerjee (Ganguly) was married to the accused No.1, Subrata Banerjee on or about 18-4-1987 according to Hindu Rites and Customs. After marriage the complainant went at her matrimonial home and started residing with her husband and other inmates of the family. In course of time a girl child was born out of the said wedlock and she was aged 10 years at the time when the complaint was lodged. It has been further alleged by the complainant that the accused persons on different plea and pretext used to inflict torture upon the complainant since the inception of marriage and often used to taunt her regarding the articles given by her parents at the time of marriage. The husband of the complainant often used to demand money and lastly he demanded a sum of Rs. 30,000/- from the complainant’s father. The other accused persons used to instigate her husband for demanding such cash money. The complainant also alleged that her husband misbehaved with her and insulted her parents and other family members. The complainant’s husband often used to go at the office of the complainant’s father and made unusual demand, further the complainant’s husband used to inflict physical torture upon her on the issue of demand of money. The petitioner being the brother-in-law, according to the complainant, was residing at Baguihati and though he was not physically present, he used to advice complainant’s husband and her husband used to act according to the advice of the petitioner. Finally, the complainant states that her husband did not take care of her or her child and on a false pretext took away her daughter and admitted her at a school in Calcutta. The complainant several times attempted to enter her matrimonial home but she was refused any entry and finally a divorce suit was filed against her. The complainant after repeated attempts had been successful to meet her daughter at her hostel. Finally the complainant alleges that her husband and the other accused persons have retained her stridhan properties and are unwilling to hand over the same.
Mr. Sudipto Moitra, Ld. Senior Advocate appearing for the petitioner submits that it is an admitted position that the petitioner being the elder brother- in-law was staying at Calcutta and the cause of action, according to the complainant arose within the jurisdiction of Tamluk. He has further contended that except certain stray narration no specific role or overt act has been ascribed to the present petitioner. Further the crux of the allegations related to physical cruelty, mental cruelty and retention of stridhan properties which are primarily alleged against the accused/husband.
Mr. Moitra has also drawn the attention of this Court to the statement under Section 200 of the CrPC so recorded by the Ld. Magistrate in respect of the complainant, Papiya Banerjee and her father, Rajat Ganguly. In the said statement on solemn affirmation before the Ld. Magistrate both the witnesses did not refer to the petitioner or any role attributed to him in respect of the offences alleged off. It is the further contention of the Ld. Senior Advocate that admittedly the complaint was filed almost after 16 years of marriage and at a time when the divorce was pending before the Civil Court. Mr. Moitra, in support of his contention, has relied upon Preeti Gupta vs. State of Jharkahand (2010) 7 SCC 667, Neelu Chopra vs. Bharti (2009) 10 SCC 184, Swapnil vs. State of M.P. (2014) 13 SCC 567, Appasaheb vs. State of Maharashtra (2007) 9 SCC 721 and Geeta Mehrotra vs. State of U.P. (2012) 10 SCC 741.
The petitioner has been residing at Calcutta since 1975 with his family consisting of his wife and son. Taking into account the allegations made in the petition of complaint, it is an admitted fact that at no point of time the petitioner was physically present when the incidents relating to torture had taken place, which raises a doubt regarding the complicity of the petitioner so far as the allegations which have been made in the petition of complaint. Needless to reiterate that it is an accepted position in the complaint itself that the petitioner was never residing and or sharing the same hearth or home where the complainant alleged that the offences relating to physical and mental torture has taken place. Further so far as the entrustment of the stridhan articles are concerned the same has been with her husband, the accused No.1 in the petition of complaint. Again the demand of money as alleged was also attributed to her husband and the petitioner’s role was never detailed except once for the purpose of abetment. It would not be out of place to state that the present proceedings was initiated at a stage when the complainant’s daughter was 10 years old and the marriage was subsisting for 16 years. In such circumstances the observation of the Hon’ble Apex Court in Preeti Gupta’s Case, which held as follows:-
“…….The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinized with great care and circumspection.”
Additionally in Geeta Mehrotra’s case, it has been held as follows:-
“….. the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498-A IPC and Sections 3/4 of the Dowry Prohibition Act against the appellants who are the sister and the brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.”
Consequently, having due regard to the averments/allegations made in the petition of complaint as also the examination of the complainant and her father under Section 200 of the CrPC on solemn affirmation and the settled principles of law, I am of the opinion that further continuance of the proceedings, so far as the present petitioner is concerned, would be an abuse of the process of law and the same if allowed to continue would result in miscarriage of justice.
As such the proceedings being Complaint Case No. 896 of 2003, so pending against the petitioner before the Ld. CJM, Tamluk is hereby quashed.
CRR 3263 of 2006 is accordingly allowed.
However, the Ld. Magistrate would be at liberty to proceed with the complaint in respect of rest of the accused persons.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)