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Bhabani Prasad Mali vs State Of West Bengal & Anr on 23 April, 2019

In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Subhasis Dasgupta.

CRR No. 293 of 2019

Bhabani Prasad Mali
Vs
State of West Bengal Anr.

For the petitioner : Mr. Avik Datta, Adv.

For the State : Mr. Binoy Kumar Panda, Adv.
Ms. Puspita Saha, Adv.

For the Opposite Party No.2 :Mr. Sujoy Sarkar, Adv.

For Judgment : 23.04.2019

Subhasis Dasgupta, J:-

This is an application under Section 482 of the Code of Criminal

Procedure praying for quashing of a criminal proceeding being FIR No. 4 of

2018 dated 16.02.2018, Chandrapur Police Station under Sections

498A/493/417/307/323/506/354 and 34 of the Indian Penal Code now

pending before the Court of ACJM Suri, Birbhum.

Learned advocate for the revisionist/husband sought for quashing of

the proceeding referred hereinabove alleging that the instant criminal

proceeding, initiated by the de facto complainant/opposite party No.2/wife,

was nothing but a counter blast of civil suit being Title Suit No. 7 of 2018,

filed by revisionist/husband against opposite party No.2/wife praying for

declaration that the alleged marriage, said to be held on 05.04.2016 under

Special Marriage Act 1954 between the parties, as null and void. The

revisionist having denied the alleged marriage, instituted the aforesaid civil

suit, which is pending for adjudication. According to petitioner, the

opposite party No.2 admittedly received summons of the pending suit, and

thereafter initiated the instant proceeding implicating revisionist and his

family members with some cooked up materials, and if such proceeding

was not allowed to be quashed, it was proposed, that it would be a glaring

instance of perversity. The ingredients fell sort of the offence, complained

of, in the in the instant proceeding, and accordingly it was submitted by

the revisionist, that the instant proceeding should be quashed being wholly

unsanctioned by law. The instant proceeding, according to revisionist, was

purposive, vexatious and mala fide as well, which if allowed to be

continued, would lead to abuse the process of the Court.

Learned advocate for the opposite party No.2 submitted that police

had already submitted chargesheet against the accused persons making

out a prima facie after collection of sufficient materials therefor, and when

the chargesheet had already been submitted, it would be not wise to allow
the quashing, as proposed by the revisionist. Thus, according to opposite

party/ de facto complainant, the revisionist/husband being a civic

volunteer, engaged by the police administration of the district concerned,

developed of love affairs with the de facto complainant/opposite party No.2,

and co-habitated with her a good number of times promising her to marry

subsequently giving due recognition therefor. Since there was some

problem faced by the revisionist/husband, the marriage between the

parties was held under the provisions of the Special Marriage Act, and

accordingly a marriage certificate was issued thereunder. At the time of

marriage held under the provision of the Special Marriage Act, the parents

of the de facto complainant gave Rs.2,75,000/- together with other

valuables as per demand of the revisionist and his family members, but the

parents of de facto complainant failed to satisfy further demand of

Rs.5,00,000/- as further dowry together with other valuable items, when it

was given to understand that de facto complainant would not be accepted

as duly weded wife of petitioner giving her due recognition, unless the

further demanded amount was liquidated.

The instant title suit praying for annulment of the marriage was filed

against the de facto complainant/opposite party even after enjoying de

facto complainant for a considerable period of time with a promise to marry

her, and it was purposefully filed simply to put pressure upon the de facto

complainant, so that she could not dare to enforce her marriage certificate

before the competent authority established under the law.

Thus according to opposite party/wife, the instant proceeding was

not at all a purposive, vexatious and mala fide, as alleged by the

revisionist, and rather it was filed by the de facto complainant simply for

redressing her grievance for being a victim of circumstances at the instance

of revisionist/petitioner.

The learned advocate Mr. Panda, representing the State/opposite

parties strongly opposed submitting that there could not be any quashing

in the given set of facts, which stood ratified by sufficient materials being

collected by the investigating agency during investigation. Thus, according

to State opposite party, sufficient materials had been collected against the

revisionist/petitioner, and without holding a trial, the culpability of the

revisionist could not be effectively determined. The State/opposite party

thus discouraged the prayer quashing, as proposed.

The only question in the given set of facts requiring decision is

whether the instant proceeding, if allowed to be continued any more even

after submission of the chargesheet, would lead to an inevitable inference

that there will be an abuse of the process of the Court or not.

The power for quashment available under Section 482 of the Code of

Criminal Procedure is ordinarily exercisable under three (3) circumstances.

(i) To give effect to an order contained in the Code.

(ii) To prevent abuse of the process of the Court.

(iii) Otherwise to secure the ends of justice.

The revisionist in the instant case was described to be a civic police

volunteer, engaged by concerned district administration of police.

The contention raised in the FIR the that he developed love affairs

with the de facto complainant, started co-habitating with her a good

number of times with a promise to marry subsequently. The de facto

complainant then entered into a marriage with petitioner under the

provisions of the Special Marriage Act with high hope that she would be

given due dignity and recognition shortly after social celebration of her

marriage as per promise of petitioner. At the time of marriage under the

Special Marriage Act, the parents of de facto complainant satisfied the

monetary demand of the petitioner’s family by paying cash money to the

extent of Rs. 2,75,000/- together with other valuables. Subsequently, the

petitioner’s family demanded cash money of Rs. 5,00,000/- from de facto

complainant and her family members, which could not be satisfied, and as

a result thereof marriage could not be held socially. The petitioner even

after marriage, held under the Special Marriage Act, visited the parental

house of de facto complainant a number of times, and established physical

relationship with de facto complainant with a promise of social celebration

of marriage subsequently. When the family members of de facto

complainant visited the house of the petitioner with a proposal for

marriage, the family members of the petitioner felt aggrieved and attacked

the de facto complainant, her father and other member causing injury

them. The de facto complainant also sustained bodily injury on her
person, and her modesty was outraged by the father of the petitioner in the

process.

In terms of the allegations contained in the FIR police held extensive

investigation, and submitted chargesheet making out a case under Section

498A/493/417/307/323/506/354/34 IPC against respective accused

persons involved in this case.

Upon perusal of the statements already collected by the investigating

agency, it appears that the police already collected statement of good

number of people including one Member of Gram Panchayat, who left

materials, supportive of a prosecution for the offence complained of against

the respective accused persons involved in this case. The de facto

complainant/victim herself made statement, which was recorded under

Section 164 Cr. P.C. by the learned Magistrate. The statement recorded

under Section 164 Cr. P.C. of the victim/de facto complainant appears to

have been made in ratification of the contention depicted in the FIR itself.

There could not be any material collected by the investigating agency,

supportive of a prosecution under Section 307 IPC against any of the

accused persons involved therein.

It is settled proposition of law that it is not permissible for the High

Court to appreciate the evidence, as it can evaluate material documents on

record to the extent of its prima facie satisfaction about the existence of

sufficient ground for proceedings against the accused persons and the

Court cannot look into those materials, the acceptability of which is
essentially a matter for trial. However, the law does not prohibit

entertaining the petition under Section 482 Cr. P.C for quashing the

chargesheet even before the charges are framed, or before the application

of discharge is filed or even during the pendency of such application before

the court concerned. The inherent power, therefore, should not be

exercised to stifle a legitimate prosecution. In order to exercise such power

the present court is under obligation to hold an enquiry with respect to the

materials produced to the extent, it is necessary to find it out whether a

prima facie case is made out or not. The materials already collected in the

CD were highly reflection of commission of offence complained of providing

materials therefor.

It is true that the de facto complainant admittedly initiated the

instant proceeding after receiving summons of a civil suit wherein the

Special Marriage of the de facto complainant held on 05.04.16 was sought

for annulment of the said marriage. The petitioner/revisionist appears to

be initiator of that civil suit. Though the instant proceeding was alleged to

be a counter blast of the civil suit filed by the revisionist/petitioner, but the

same would not be sufficient enough to encourage the proposed

quashment ignoring the materials already collected during the course of

investigation. Whether the instant proceeding is a counter blast or not, it

may operative as defence to which may be effectively put up during the

trial, but the same cannot be construed to be a good ground for quashing
the proceeding keeping in view the said defence likely to be raised during

the trial by the revisionist.

Upon consideration of the prima facie materials already revealed in

the copy of case diary, it cannot be concluded with all certainty that

instant proceeding is a purposive, frivolous, vexatious and mala fide,

justifying an order encouraging the proposed quashment.

It was given to understand in course of hearing that the copy of the

materials already collected during investigation could not be made

available by supplying the same to revisionist. The revisionist/petitioner,

therefore, is not remediless at the moment, because enough opportunities

are left open before him to raise the issue, now raise at the time of

conducting the trial with much more convenient manner.

Thus, the revisional application fails being without any merits.

Liberty is given to the petitioner to raise points, now raised, at the

time of trial. The learned Trial Judge shall address the issues, if any raised

by the revisionist in accordance with law, giving sufficient opportunity of

hearing to either of the parties to this case.

Learned Court below is directed to consider the applicability of

section of the offences, complained of, at the time of consideration of

charge against the respective accused persons involved in this case in the

context with the materials already collected during the course of

investigation.

With this observation and direction, the revisional application stands

disposed of.

Urgent certified copy of this order, if applied for, be given to the

appearing parties as expeditiously as possible upon compliance with the all

necessary formalities.

(Subhasis Dasgupta, J.)

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