IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APELLATE SIDE The Hon'ble JUSTICE SUVRA GHOSH C.R.R. No. 2763 of 2019 Sri Swapan Banerjee & Anr. V/s. The State of West Bengal & Anr. For the Petitioners: Mr. Pawan Kumar Gupta, Adv., Ms. Sofia Nesar, Adv. For the State: Mr. Sudip Ghosh, Adv., Mr. Bitasok Banerjee, Adv. For the Opposite Party No. 2: Mr. Somopriyo Choudhury, Adv., Mr. G. Patra, Adv., Mr. Subrata Mukherjee, Adv., Heard on: 10.01.2020 Date of Judgment: 19.02.2020 SUVRA GHOSH, J. :- 1.
In the present application under section 482 of the Code of Criminal Procedure, the petitioners have prayed for quashing the proceeding in connection with Tamluk Police Station case No. 353 of 2019, dated 04-07-2019, under sections 498A/406/384/307/506(2)/34/120B of the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act, pending before the Learned Chief Judicial Magistrate, Purba Medinipur, after being registered as G.R. Case No. 1342 of 2019.
2. The contention of the petitioners, in brief, is that opposite party no. 2 lodged complaint against her husband Tuhin Mahato and other members of her matrimonial family only with the intention of depriving them of the custody of her minor child. The First Information Report does not reveal any offence against or role played by the petitioners in commission of such offence. Opposite party no. 2 used to reside with her husband in Mumbai whereas the other accused persons resided in Barrackpore. The petitioners are the neighbours of the matrimonial family of the defacto complainant/opposite party no. 2 and have been falsely implicated in this case. They are not related to the defacto complainant in any manner and no allegation under section 498A of the Indian Penal Code is maintainable against them. They have obtained anticipatory bail from this Court earlier. The allegations made in the complaint are manufactured, false and absurd and do not constitute any offence against the petitioners. As such, such proceeding is required to be quashed in order to avoid abuse of the process of the Court.
3. Opposite party no. 1/State produced the case diary along with report. It appears from the report that the petitioners are the paternal mother in law and father in law of the defacto complainant (pish-shasur and pishi-shasuri) and played an active role in provoking the other accused persons in torturing the defacto complainant.
4. Opposite party no. 2 vehemently opposed the prayer of the petitioners and submitted that the petitioners are members of the matrimonial family of the defacto complainant and were actively involved in meting out cruelty upon the defacto complainant. It is further submitted that the jurisdiction of the Court with regard to the commission of the alleged offence cannot be considered before filing of charge sheet. Investigation is in progress and the truth and veracity of the allegations made out against the petitioners are to be assessed by way of evidence and the entire proceeding cannot be quashed at such preliminary stage of investigation of the case.
5. On careful scrutiny of the First Information Report, it is evident that the main thrust of the allegations is against accused nos. 1-5 who are the husband of opposite party no. 2 and other members of her matrimonial family. Though the petitioners have been arraigned as accused nos. 6 and 7 in the F.I.R., the role attributed to them is that they instigated accused nos. 1-3 against her during their frequent stay in her flat at Thane. The F.I.R. is silent with regard to the relationship of the petitioners with opposite party no. 2.
6. Pursuant to the written complaint, the Investigating Officer took up the investigation of the case on 04-07-2019 and proceeded with such investigation substantially. The Investigating Officer recorded statement of the complaint and her relatives and strangely enough, no independent witness or other witnesses from the locality of the matrimonial home of the complainant were examined. In her statement before the Investigating Officer on 10-07-2019, the defacto complainant implicated her husband, parents in law, sister in law (jaa) and brother in law (bhasur). The names of the petitioners transpired in the subsequent statement of the defacto complainant before the Investigating Officer and it was alleged that the petitioners being the paternal mother in law and father in law of the defacto complainant instigated the other accused persons.
7. It is a fact that jurisdiction under section 482 of the Code should be exercised with extreme care, caution and circumspection and should not be used to stifle or axe down a legitimate prosecution. The test is whether the uncontroverted allegations as made out in the complaint prima facie establish the case and also whether continuation of such complaint shall amount to abuse of the process of law.
8. In the case in hand, though allegation against the petitioners is under sections 498A/406/384/307/506(2)/34/120B of the Indian Penal Code and section 4 of the Dowry Prohibition Act, the F.I.R. is bereft of any material comprising any of the said allegations against the petitioners. Save and except a general and omnibus allegation of instigation by the petitioners in the F.I.R. as well as in course of investigation, there is nothing on record which suggests a prima facie case against them. The allegation of instigation is also not supported by any cogent material and does not relate to any specific act or incident. Allegations in the F.I.R are undoubtedly grave and such allegations ought to be taken serious note of and redressed in accordance with law. It is also trite law that graver the offence, stricter is the burden of proving the same and in the least, a prima facie case is required to be made out by the aggrieved. In the present case, no prima facie case has been made out against the petitioners in the F.I.R. itself. The F.I.R. is also silent regarding relationship of the petitioners with the defacto complainant and strangely enough, the first statement of the defacto complainant recorded by the Investigating Officer also does not speak of such relationship. Such alleged relationship has been brought into the picture at a subsequent stage of investigation upon recording further statement of the defacto complainant. Such developments cannot be given much weight as it appears to have been made in order to improve the case of the complainant. No reason has been assigned by the complainant as to what prevented her from disclosing her alleged relation with the petitioners despite having knowledge of the same even prior to lodging the complaint.
9. Upon consideration of the entire material on record and taking into account the contents of the complaint itself, I am of the view that the complaint does not disclose any criminal offence under sections 498A/406/384/307/506(2)/34/120B of the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act against the petitioners and continuation of such proceedings against the petitioners shall amount to abuse of the process of the court.
10. In the result, the proceedings in respect of the petitioners in G.R. Case No. 1342 of 2019 pending before the Learned Chief Judicial Magistrate, Purba Medinipur, in connection with Tamluk Police Station Case No. 353 of 2019 dated 04-07-2019, under sections 498A/406/384/307/506(2)/34/120B of the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act is liable to be quashed.
11. CRR 2763 of 2019 is allowed accordingly. The proceeding in G.R. Case No. 1342 of 2019 pertaining to the petitioners and pending before the Learned Chief Judicial Magistrate, Purba Medinipur, is quashed.
12. The proceedings against the other accused persons of the case shall proceed in accordance with law and shall not be influenced by any observation made in the body of this judgment.
13. The petitioners be released at once and discharged from their bail bonds.
14. There will be no order as to costs.
15. Copy of this judgment along with L.C.R. be sent down to the trial Court at once.
16. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.
(Suvra Ghosh, J)