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Arif Ali vs The State Of West Bengal And Anr on 22 July, 2019

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APELLATE SIDE

The Hon’ble JUSTICE SUVRA GHOSH

CRR 2389 of 2018

Arif Ali
V/s.

The State of West Bengal and Anr.

For the Petitioner: Mr. Ayan Bhattacharjee, Adv.,
Ms. Sharequl Haque, Adv.,
Ms. Sujata Mitra, Adv.

For the Opposite Party No. 2: Mr. Imtiaz Ahmed, Adv.,
Mr. Ghazala Firdaus, Adv.,
Ms. Smita Saha, Adv.,
Ms. Shaila Afrin, Adv.,
Sk. Saidullah, Adv.,
Mr. Sibasish Banerjee, Adv.,
Mr. Syed Murshid Alam, Adv.

For the State: Mr. S.G. Mukherjee, P.P.

Heard on: 16.07.2019
Date: 22.07.2019

SUVRA GHOSH, J. :-

1) In the present revisional application under Section 482 of the Code, the

petitioner has prayed for quashing the Charge Sheet being Charge Sheet No.

212 of 2016 dated December 16, 2016 under Sections 498A/Section406/Section34 of the

Penal Code, 1860, arising out of G.R. Case No. 2931 of 2016 pending before

the learned Additional Chief Judicial Magistrate, Sealdah, 24 Parganas North.

2) The opposite party no. 2 lodged complaint before the officer-in-charge, Tangra

Police Station, against the petitioner and others alleging commission of offence

punishable under Sections 498A/Section406/Section34 of the Penal Code wherein she
alleged that the petitioner, being her husband, subjected her to physical and

mental cruelty after her marriage and finally drove her out of her matrimonial

home after retaining her stridhan articles wrongfully. The case is pending

before the trial court and charge-sheet has been submitted against the

petitioner and others after completion of investigation.

3) Learned advocate for the petitioner submits that the allegations made in the

complaint fall far short of the ingredients of offence under Section 498A of the

Penal Code. Learned advocate refers to the copy of a document dated 28-02-

2016 giving detailed information of the marriage ceremony between the parties

wherefrom it appears that there was neither any demand for dowry, nor any

dowry given. Therefore, the alleged demand of dowry stated in the complaint is

false and baseless. No specific case has been made out against the petitioner

either in the complaint or in the charge-sheet. Hence the entire proceeding is

required to be quashed.

4) Opposite party no. 2 who is the wife of the petitioner vehemently opposes the

contention of the petitioner and submits that there is sufficient material in the

complaint suggesting mental cruelty upon the opposite party by the petitioner.

The document of marriage relied upon by the petitioner is not a Nikahnama

and was executed prior to the marriage. The matter essentially involves

disputed questions of fact which can only be decided at the time of trial, a

prima facie case against the petitioner having been made out.

5) The State is represented and submits that whether there was any cruelty

inflicted upon the opposite party can be assessed only on appreciation of

evidence. At this stage, it shall not be justified to interdict the prosecution.

6) Reliance has been placed by the State on the authority in Rupali Devi v/s.

State of Uttar Pradesh and others reported in 2019 (2) AICLR 360 (S.C.)

wherein the Hon’ble Supreme Court has dealt with Section 498A of the Penal

Code as well as the presumption under Section 113A of the Evidence Act. In

dealing with the expression ‘cruelty’ the Hon’ble Court observed that “Cruelty

can be both physical or mental cruelty. The impact on the mental health of

the wife by overt acts on the part of the husband or his relatives; the mental

stress and trauma of being driven away from the matrimonial home and her

helplessness to go back to the same home for fear of being ill-treated are

aspects that cannot be ignored while understanding the meaning of the

expression cruelty appearing in Section 498A of the Indian Penal Code.”

7) In the complaint filed by the petitioner, the main thrust of the allegations is

against the mother in law and other members of the matrimonial family. The

mother in law is alleged to have retained all the jewellery and valuables of the

opposite party in her custody and she along with other members of the family

allegedly treated the petitioner as their maid-servant, showed disrespect

towards her, rebuked her and engaged her in various menial jobs. The

allegation against the petitioner in the written complaint is that he used to join

the other members in such acts and insisted that the petitioner remained

within the four walls of the house and performed the duties allotted to her.
According to the opposite party, the petitioner wanted her to remain with her

matrimonial family and objected to her speaking to her parents. The petitioner

also insisted that the opposite party shared the bed with a domestic help while

the petitioner remained in a different room.

8) Investigation was conducted by the investigating officer of the case which

culminated in submission of charge-sheet. The investigating officer recorded

statements of the brother, mother, father and the opposite party herself under

Section 161 of the Code and of no other person who may have been acquainted

with the families of both the parties or was in a position to co-operate with the

investigation by enlightening the investigating officer regarding the facts, was

examined. The parents and the brother of the opposite party shall invariably

speak in tune with the opposite party and in absence of any prima facie

material against the petitioner elicited in course of the investigation, it can be

held that no prima facie case under Sections 498/Section406 of the Penal Code has

been made out against him. The opposite party has relied upon a decision of a

co-ordinate Bench of this Court in Tarit Sakar v/s. State of West Bengal

reported in 2019 (1) E Cr. N (CAL) 693 wherein it is observed that in view of

specific overt acts being attributed to the accused, the truth of such allegations

could not be assessed before trial and the matter involved disputed questions

of facts which could be decided only during trial. The Court dismissed the

prayer of the petitioner therein for quashing of the proceedings against him.

9) The ratio of the said case can be distinguished from the factual matrix of the

present case as in the present case, no prima facie case has been made out
against the petitioner either in the complaint, or during investigation, nor any

overt act attributed to him which would constitute an offence under Section

498A of the Penal Code.

10) It is needless to state that inherent jurisdiction of the High Court under

Section 482 of the Code should be exercised with extreme care and caution

and when a complaint is sought to be quashed, the court can look into the

material on record to assess whether an offence is prima facie made out even

if the allegations are accepted as they are.

11) The allegations levelled against the petitioner in the complaint do not

constitute an offence under Section 498A/Section406 of the Penal Code. Besides the

petitioner passively supporting the other accused persons, no other allegation

has in fact been made out against him. The petitioner’s concern about the

domestic help of the family also cannot be termed as cruelty within the ambit

of Section 498A of the Penal Code.

12) Reliance has been placed on several authorities by the petitioner. In Bhaskar

Lal Sharma and another v/s. Monica reported in (2009) 10 SCC 604, the

Hon’ble Supreme Court has held that “For proving the offence under Section

498A IPC, the complainant must make allegation of harassment to the extent

so as to coerce her to meet any unlawful demand of dowry, or any wilful

conduct on the part of the accused 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.”

13) Similar proposition of law is enunciated in Preety Gupta and another v/s.

State of Jharkhand and another reported in (2010) 7 SCC 667. In

Chandralekha and others v/s. State of Rajasthan and another reported in

(2013) 14 SCC 374, the Hon’ble Supreme Court has held that when the

allegations are extremely general in nature and no specific role is attributed

to the appellant the FIR deserves to be quashed. The same ratio is also

reflected in Pritam Ashok Sadaphule and others v/s. State of Maharashtra

and another reported in (2015) 11 Supreme Court Cases 769 and Rashmi

Chopra v/s. State of U.P and another reported in 2019 (7) SCALE 152.

14) In the same vein, this court has held in Rejaul Islam and another v/s. State

of West Bengal reported in 2010 (3) AICLR 553 that “Mere physical assault in

absence of any unlawful demand as indicated hereinbefore would not

construe the offence under Section 498A of the IPC. Similarly, there is no

such material so as to suggest that there had been wilful conduct of such

nature as was likely to drive the woman to commit suicide or to cause grave

injury or danger to life, limb or health (whether mental or physical) of the

woman.”

15) In the present case, there is no allegation of physical torture upon the

opposite party and also no prima facie material to suggest mental torture

upon her.

16) Upon scrutiny of the complaint, statement of witnesses under Section 161 of

the Code as well as the charge-sheet, it is evident that there is no prima facie

material under Section 498A of the Penal Code against the petitioner. The
allegations levelled against him do not constitute an offence under Section

498A of the Penal Code. There may have been certain misunderstandings

and mal-adjustment between the couple which led to lodging of the complaint

but such marital discord can under no stretch of imagination be termed as

cruelty upon the opposite party. Allowing such proceeding to continue

further shall result in abuse of the process of the court and as such, is

required to be quashed, to secure the ends of justice.

17) Accordingly, the entire proceedings of G.R. Case No. 2931 of 2016 pending

before the learned Additional Chief Judicial Magistrate, Sealdah, North 24

Parganas is quashed.

18) CRR 2389 of 2018 is allowed accordingly.

19) Case diary be returned.

20) 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)

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