Calcutta High Court Anju Pal And Ors.-vs-State Of West Bengal on 6 October, 2005
Equivalent citations:2007 (2) CHN 103
Author: P Sinha
Bench: P Sinha
JUDGMENT
P.N. Sinha, J.
1. This application under Section 482 of the Code of Criminal Procedure (in short the Code) is aimed at quashing the charge framed against the petitioners under Section 498A/306 of the Indian Penal Code (in short IPC) in connection with Sessions Trial No. 5(3) 2005 (G. R. Case No. 2000/96) arising out of Titagarh P. S. Case No. 148 dated 2.7.96 under Section 498A/ 306 of the IPC by the learned Additional Sessions Judge, Barrackpore by order dated 31.3.05.
2. The prosecution case was started on the basis of First Information Report (FIR) lodged by Namita Mukherjee on 2.7.96 at Titagarh Police Station. The prosecution story as depicted in the FIR was that, Soma Pal, daughter of de facto complainant Namita Mukherjee was married with Kaushik Pal under Special Marriage Act on 28.10.98 and after marriage Soma Pal went to her matrimonial home. About a month after the marriage, daughter of the informant was subjected to torture by her husband and other in-laws and she came out of matrimonial home. Soma Pal stayed in her mother’s house for about 15/16 days and thereafter Kaushik Pal, husband of Soma Pal took away Soma Pal and they started living in a rented room in the house of Amalendu Hira at Talpukur within Police Station, Titagarh. On 31.5.96 de facto complainant received information that her daughter Soma Pal sustained burn injuries and she immediately rushed the house of Amalendu Hira, and reaching there heard from landlady that her daughter has been shifted to Dr. B. N. Bose Hospital. She thereafter, went to Dr. B. N. Bose Hospital and found her daughter with severe burn injuries and she was not in a position to speak and ultimately, Soma Pal expired on 3.6.96. She lodged the FIR on 2.7.96 stating therein that due to mental shock she could not lodge the FIR in time and previous information bearing her signature was written by her son-in-law Kaushik Pal and she did not verify the contents of that written information. On the basis of the aforesaid FIR Titagarh Police Station Case No. 148 dated 2.7.96 under Section 498A/306 of the IPC was started and after completing investigation the police submitted chargesheet against the petitioners. After commitment of the case to the Court of Sessions it was transferred to the Court of the learned Additional Sessions Judge, Barrackpore. The learned Additional Sessions Judge by order dated 31.3.05 framed charges under Sections 498A and 306 of IPC against the petitioners and being aggrieved by, and dissatisfied with, the said order the petitioners have approached this Court in this revisional application for quashing the charges.
3. Mrs. Pranati Goswarni, learned Advocate for the petitioners submitted that FIR was belated and it was lodged about a month after death of deceased Soma Pal. Before lodging FIR the informant Namita Mukherjee submitted in writing with her signature to the OC, Titagarh Police Station that, for the death of her daughter she is not making allegation against anyone and she would not file any litigation. Concerning death of Soma Pal there was enquiry by Titagarh Police Station immediately after her death, and in the enquiry the police officer submitted that the death was due to accidental burn and no foul play was detected behind the death. In the inquest report also no material of offence was disclosed against the petitioners.
4. She further submitted that petitioner Nos. 1 and 2 reside elsewhere and they are residing at Gauhati in Assam. From the FIR and the statement of witnesses recorded under Section 161 of the Code there is no element of torture demanding dowry and no element of abetment to commit suicide. In fact, from the FIR and other papers and documents including the statements recorded under Section 161 of the Code no elements of offence under Sections 498A and 306 of the IPC were detected or transpired against the petitioners. The learned Judge framed the charges without due application of mind. There was no material at all to frame charges against the petitioners. Accordingly, the order of the learned Judge framing charge against petitioners under Sections 498A and 306 of IPC are bad in law. The said order framing charges against the petitioners should be set aside. In support of her contention she cited the decisions in Annakali Dutta v. State reported in 1990 C Cr. LR (Cal) 169, State of Punjab v. Kasturi Lal , Hans Raj v. State of Haryana , Ramesh and Ors. v. State of T. N. and Netai Dutta v. State of W.B. .
5. Mr. P. K. Roy, learned Advocate appearing for the State of West Bengal submitted that the deceased Soma Pal died within a few months after marriage and her death was unnatural after sustaining burn injuries. The learned Judge has framed charges against the petitioners after hearing both the parties. The previous information given by the de facto complainant to the Officer-in-Charge of Titagarh Police Station was written by the interested person namely, son-in-law of the de facto complainant. The son-in-law, i.e. husband of deceased Soma Pal is interested in having his acquittal. The de facto complainant Namita Mukherjee after the death of her daughter was in shock and her mental condition was not stable at that time. Taking this advantage Kaushik Pal, son-in-law of de facto complainant obtained her signature over a paper and thereafter filled up the contents disclosing that nobody was responsible for the death of Soma Pal. The said written information was not read over and explained to the de facto complainant. The delay in lodging FIR has been well-explained. Only during trial, on the basis of evidence, it can be ascertained whether death of Soma Pal was accidental, or that, she committed suicide being unable to bear the torture of her husband and other in-laws and whether there was abetment by the petitioners to the deceased to commit suicide. The order passed by the learned Judge framing charges was proper and correct and it requires no interference.
6. The submission of the learned Advocate for the petitioners that FIR was lodged about one month after the incident and, previously the de facto complainant Namita Mukherjee informed OC, Titagarh Police Station that she has no complaint against anyone for the death of her daughter are grounds of false accusation against the petitioners sufficient to quash the proceeding, is not acceptable. In the FIR the ground of delay has been mentioned. The learned Trial Court at the time of trial on the basis of evidence will decide whether delay in lodging FIR has been sufficiently explained or not. The earlier information given by Namita Mukherjee will also be considered by the learned Judge as to whether this was her voluntary statement or she was misled by someone in giving such information. Without the evidence of de facto complainant Namita Mukherjee, other evidence and circumstances these two points regarding delay of FIR and earlier written information of Namita Mukherjee cannot be decided. These matters cannot be a ground for quashing the criminal proceeding.
7. Non-disclosure of elements of offence against the petitioners in the inquest report cannot be a ground of quashing the criminal proceeding. The inquest report need not contain the manner in which incident took place and the names of accused persons. The Supreme Court in Amar Singh v. Balwinder Singh laid down legal
proposition in this respect observing that, “The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely whether it was suicidal, homicidal, accidental or by some machinery, etc.” The inquest report at this stage has no role to play and it does not come to aid of petitioners.
8. At the same time no reliance can be placed on the enquiry report dated 4.6.96 prepared by sub-inspector of Titagarh Police Station as it was made before lodging the FIR. At the stage of framing charge this report cannot be considered at all. If the accused persons desire they may produce the report at the time of defence evidence during trial.
9. Relating to framing of charge against all the petitioners under Section 306 of the IPC, I find from the materials on record that on 31.5.96 when Soma Pal sustained burn injuries she was residing with her husband, Kaushik Pal in a rented room of Amalendu Hira. Other petitioners namely, petitioner Nos. 1, 2 and 3 were not there at the time of the said incident or before that. The materials disclose that on 31.5.96 at morning there was some dispute and quarrel between the husband and wife concerning meal and the husband refused to take meal prepared by wife. Materials also disclose that thereafter the husband left the house and within half an hour thereafter Soma Pal sustained burn injuries. Whether it was accidental fire or, Soma Pal committed suicide for the behaviour of her husband is a matter which can be decided in the trial on the basis of evidence. In my opinion there is material at least prima facie to frame charge under Section 306 of IPC against the husband Kaushik Pal. At the stage of framing charge a Magistrate or a Judge is not required to see or consider whether it would surely end in conviction of accused. At the stage of charge even a strong suspicion can be basis for framing charge. Considering the entire materials I do not find materials against petitioner Nos. 1, 2 and 3 so far as it relates to offence under Section 306 of IPC. There is no material to connect them into the incident of sustaining burn injury by deceased Soma Pal and their nexus behind this incident has not been prima facie established. Petitioner Nos. 1 to 3 were not residing in the rented room in the house of Amalendu Hira and they were not present in the rented room where Kaushik and Soma were staying in the morning of 31.5.96. In my opinion, there was no sufficient material to frame charge under Section 306 of IPC against petitioner Nos. 1 to
3. Accordingly, the order of the learned Additional Sessions Judge framing charge under Section 306 of IPC against the petitioner Nos. 1 to 3 being not in conformity with law and not based on sufficient materials is hereby set aside. The trial so far as it relates to Section 306 of IPC would continue only against petitioner No. 4 Kaushik Pal, the husband of deceased Soma Pal.
10. The decisions cited by the learned Advocate for the petitioners are not applicable in this case as the facts and circumstances of the reported cases are different from the facts and circumstances of the present case as well as materials and evidence collected during investigation. Accordingly, the decisions in Annakali Dutta v. State (supra). State of Punjab v. Kasturi Lal (supra), Ramesh v. State of T. N. (supra) and Netai Dutta v. State of W.B. (supra) are not acceptable in this case as the facts, circumstances and evidence and materials collected during investigation are not identical with the facts and circumstances of the reported cases and in this case there are prima facie materials to frame charge under Section 498A of IPC against all the petitioners and under Section 306 of IPC against the husband. The decision of Hems Raj v. State of Haryana (supra) are not applicable as the said decision was made by the Supreme Court in an appeal against conviction when the Supreme Court had the opportunity to look into the evidence that was adduced during trial.
11. Considering the order framing charge relating to offence under Section 498A of the IPC, perusing the materials on record this Court finds that there are prima facie materials against all the petitioners under Section 498A of IPC to face the trial and accordingly learned Judge made no mistake by framing charge under Section 498A of IPC. Section 498A of IPC has two limbs–(1) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand and (2) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. From the materials on record it appears that other petitioners sometimes tortured her and even disclosed that, peace in their family was destroyed for her and, they insulted her and thereby inflicted torture on her. It has already been indicated above that at the stage of framing charge Court is not to consider or to evaluate the evidence meticulously whether conviction of the accused would result in the trial. At the stage of framing charge Court is to consider only whether on the basis of papers and materials placed before the Court there are materials to proceed with the trial and to frame charge.
12. The Supreme Court in State of Bihar v. Ramesh Singh reported la , State of Delhi v. Gyan Devi reported in AIR 2001 SC 40, Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau reported in 1999 C Cr. LR (SC) 376 and Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja reported in 1979 Cr. LJ 1390, made it clear that even a strong suspicion is sufficient to frame charge and to proceed with the trial. If the prosecution in this case fails to lead evidence to substantiate the charge the accused persons are entitled to be acquitted. Even if, there is no element of torture for the demand of dowry still other limb of Section 498A of IPC is there for continuation of the trial and to frame charge. The materials disclosed that petitioner Nos. 1 and 2 also used to come off and on and tortured the deceased Soma Pal. The learned Judge rightly framed charge against all the petitioners under Section 498A of IPC.
13. The aforesaid discussion makes it clear that there is no ground for quashing the criminal proceeding and the charge framed against petitioners. The trial will continue in the light of the observations made above.
14. The application being CRAN No. 1398 of 2005 filed by the petitioners praying for stay of all further proceeding of Sessions Trial No. 5(3)2005 pending in the Court of learned Additional Sessions Judge, Barrackpore having no merit fails and is dismissed.
15. Revisional application is accordingly disposed of as indicated above.
16. The learned Judge would arrive his own decision on the basis of evidence and materials on record without being influenced in any way by the observations made by this Court in this revisional application.
17. Criminal Section is directed to send a copy of this order to the learned Additional Sessions Judge, Barrackpore for information and necessary action.
18. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.
