Calcutta High Court Saroj Tikader-vs-The State & Anr. on 23 December, 1997
Equivalent citations:(1998) 2 CALLT 314 HC
Author: D Dutta
Bench: D B Dutta

JUDGMENT

D.B. Dutta, J.

1. Saroj Tikader, one of the accused persons (accused No. 1) of C.R. Case No. 208 of 1995 pending in the Court of Sub Divisional Judicial Magistrate, Islampore has preferred the present revisional application under section 401 read with section 482 of the Code of Criminal Procedure and has prayed for setting aside of the two orders that were passed by the Magistrate on 4.1.96 and 9.1.97 in the aforesaid case and also for quashing the said proceeding.

2. C.R. Case No. 208 of 1995 arose out of a petition of complaint filed before the Magistrate on 6.6.95 by the opposite party No. 2, Puspa Rani Tikadar, under sections 498A. 304B/511 and 307/34 of the Indian Penal Code against the present petitioner and his seven relatives such as parents, brothers, sisters and maternal uncle and aunt (accused Nos. 2 to 8) on the allegations which may be stated as follows.

The complainant was married to the petitioner about 5/6 years back. Her parents and other near relatives gave sufficient cash and made various other valuable gifts at the time of marriage, but that did not satisfy the desire and aspirations of the accused persons and as a result, since after the marriage, the accused persons started subjecting the complainant to mental and physical torture for extorting motor cycle, T.V. and more money from the parents of the complainant. Sometime in the month of April, 1995, the accused Nos. 1 to 6, aided and abetted by the accused Nos. 7 and 8, poured kerosin oil on the person of the complainant in order to kill her by setting her on fire, but due to timely intervention by the neighbours, the complainant was rescued. Finally, on 29.4.95 the accused Nos. 1 to 6 assaulted the complainant causing injuries on her person and drove her out of her matrimonial home. Since then the complainant has been living in her brother’s house. The complainant ledged an information with the Goalpukur P.S. on 6.5.95 for taking action against the accused persons, but uptill now the said P.S. has not registered any case nor made any inquiry. The complainant had also lodged a complaint with the Gramin Mahila Samity which tried in vain to resolve the problem. The accused Nos. 1 to 6 have committed offences under sections 498A, 104B/511 and 307/ 34 of IPC while the accused Nos. 7 and 8 are liable to be prosecuted for abetment of the aforesaid offences.

3. The learned Magistrate took cognizance upon this complaint on 6.6.95, the date on which it was filed, and deferred the examination of the complainant opposite party No. 2 and her three other witnesses present. This examination was completed on 4.1.86 and upon consideration of the statements of the complainant and her three witnesses recorded under section 200 Cr.PC the learned Magistrate found a strong prima facie case under section 498A/307 read with section 34 IPC against the accused Nos. 1 to 6 and under section 498A read with section 34 IPC against the accused Nos. 7 and 8 and accordingly issued summons against all the accused persons by his order dated 4.1.96. On 22.5.96, the learned Magistrate received the return of the summons issued against the accused Nos. 1 to 6. From the process server’s report, it appeared to the Magistrate that the accused Nos. 1 to 6 refused to receive the summons and accordingly, the learned Magistrate by his order dated 22.5.95 issued warrant of arrest against the accused Nos. 1 to 6. Thereafter, all the accused persons appeared before the Magistrate either having been brought under arrest on the strength of warrant of arrest or by surrendering before him and were, ultimately, granted ball by the learned Magistrate. On 9.1.97, copies of all the documents within the meaning of section 208 Cr.PC were ready and served upon all the accused persons who were present on that day and the learned Magistrate transferred the case to his own flic. On receipt of the record of that case on that very day, the learned Magistrate by his subsequent order dated 9.1.97 fixed a date for appearance of the accused persons and for commitment to sessions.

4. The complainant opposite party No. 2 had earlier instituted another case (C.R. Case No. 156 of 1995) against the present petitioner as well as his seven co-accused on filing a complaint before the same Magistrate on 8.5.95 under section 498A of iPC.

5. A copy of that earlier complaint has been annexed with the revislonal application to indicate the allegations on which it was based. in the said complaint, the case of demand for more dowry against the accused persons was made out and on the inability of the complainant’s brothers to meet ihe demand, the accused persons are also stated to have subjected the complainant to mental and physical cruelty. in that complaint as well the story of assault upon the complainant on 29.4.95 was there and it was alleged ihat the complainant got herself examined by the Medical Officer of Kanki PHC who granted a medical certificate. in that complaint, there was a reference to a salish that is said to have been held between the parties in presence of the local people.

6. A copy of the order sheet of the earlier proceeding (C.R. Case No. 156 of 1995) has been annexed with the revisional application to show the day-to-day progress of that proceeding.

7. On 8.5.95. the date on which the earlier complaint was filed, the complainant was present with three witnesses and the learned Magistrate, without examining any of them, deferred the examination under section 200 Cr.PC till 5.6.95. On 5.6.95, the complainant filed a petition for time and the prayer was allowed till 5.7.95 for examination under section 200 Cr.PC long before the date fixed, at the instance of the complainant, the case record was put upon 14.6.95 before the Magistrate-in-charge in the absence of the regular incumbent, and the complainant filed a petition before him on that date praying for dismissal of this case alleging that who did not want to proceed with the case on the ground stated in the petition. The learned Magistrate-in-charge by his order dated 14.6.95, directed this application to be put up before the regular presiding officer. The record could not be produced before the regular presiding officer on 5.7.97, the date fixed, as it was sent to the copying department in connection with an application for certified copy. The record was ultimately received by the learned Magistrate on 18.7.95 but the complainant’s petition that was filed on 14.6.95 for non-prosecution/withdrawal of the case does not appear to have been put up before him and he fixed 21.8.95 as the next date for examination under section 200 Cr.PC without disposing of the said petition for non-prosecution of the case. On the next three occasions namely 21.8.95, 30.10.95 and 9.1.96, the complainant was absent without taking any steps and the examination of the complainant and witnesses under section 200 Cr.PC was deferred from time to time. Finally, on 15.6.96, the date fixed for such examination, the complainant was again absent without taking any steps and the learned Magistrate by his order dated 15.6.96 dismissed the complaint under section 203 Cr.PC.

8. The complaint opposite party No. 2 did also file two other cases under section 125 Cr.PC being M.R. Case Nos. 66 of 1995 and 93 of 1995 before the Magistrate claiming maintenance allowance against the petitioner, at two different rates of Rs. 1500/- per month and Rs. 500/- per month respectively on 8.5.95 and 6.6.95 along with the two criminal proceedings namely C.R. Case No. 156 of 1995 and C.R. Case No. 208 of 1995, as already referred to above.

9. Copies of the two applications that were filed by the opposite party No. 2 under section 125 Cr.PC were also annexed with the re visional application which would indicate that the episode of pouring of kerosin oil was introduced only in the latter M.R. Case being M.R. 93 of 1995 and not in the earlier one being M.R. Case No. 66 of 1995.

10. The grounds pleaded in the revislonal application for quashing the two orders dated 4.1.96 and 9.1.97 passed in the impugned criminal proceeding (C.R. Case No. 208 of 1995) as well as the said proceeding itself, as far as can be gathered from the application, may be stated as follows. The impugned proceeding has been filed only for harassing the petitioner and her co-accused persons. It is a false case based on allegations which are contradictory with those made in the earlier criminal proceeding being C.R. Case No. 156 of 1995. The old parents of the petitioner have also been falsely implicated and the maternal uncle and aunt who lived in Howrah, which is far away from Uttar Dinajpore, the place of occurrence, have also been falsely implicated. All the four cases, that is to say, the two criminal proceedings and the two maintenance cases having been filed before the self-same Magistrate,