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Debabrata Banerjee vs Papiya Banerjee (Ganguly) & Anr on 21 February, 2020

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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE

PRESENT:

THE HON’BLE JUSTICE TIRTHANKAR GHOSH

CRR 3263 of 2006
Debabrata Banerjee

-vs.-

Papiya Banerjee (Ganguly) Anr.

For the Petitioner : Mr. Sekhar Kr. Bose, Sr. Advocate
Mr. Sudipto Moitra, Sr. Advocate
Mr. Soubhik Mitter

For the State : Mr. Arijit Ganguly

Heard on : 10/02/2020

Judgment on : 21/02/2020

Tirthankar Ghosh, J:-

The revisional application has been preferred for quashing the proceedings

arising out of Complaint Case No. 896 of 2003 under Sections 498A 406 of the

Indian Penal Code and under Sections 3 4 of the Dowry Prohibition Act

pending before the Ld. Chief Judicial Magistrate (CJM), Tamluk, Purba

Midnapur. In spite of service none appeared for the opposite party, as such Mr.

Arijit Ganguly, Ld. Advocate appeared for the State and advanced his

submissions.

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The opposite party No.1 being the complainant initiated the case against

the present petitioner and three others. It is seen in the petition of complaint

that the petitioner has been described as the elder brother-in-law of the

complainant, or the elder brother of her husband (Subrata Banerjee).

The allegations made in the petition of complaint is that the opposite party

No.1 namely Papiya Banerjee (Ganguly) was married to the accused No.1,

Subrata Banerjee on or about 18-4-1987 according to Hindu Rites and Customs.

After marriage the complainant went at her matrimonial home and started

residing with her husband and other inmates of the family. In course of time a

girl child was born out of the said wedlock and she was aged 10 years at the time

when the complaint was lodged. It has been further alleged by the complainant

that the accused persons on different plea and pretext used to inflict torture

upon the complainant since the inception of marriage and often used to taunt

her regarding the articles given by her parents at the time of marriage. The

husband of the complainant often used to demand money and lastly he

demanded a sum of Rs. 30,000/- from the complainant’s father. The other

accused persons used to instigate her husband for demanding such cash money.

The complainant also alleged that her husband misbehaved with her and

insulted her parents and other family members. The complainant’s husband

often used to go at the office of the complainant’s father and made unusual

demand, further the complainant’s husband used to inflict physical torture upon

her on the issue of demand of money. The petitioner being the brother-in-law,
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according to the complainant, was residing at Baguihati and though he was not

physically present, he used to advice complainant’s husband and her husband

used to act according to the advice of the petitioner. Finally, the complainant

states that her husband did not take care of her or her child and on a false

pretext took away her daughter and admitted her at a school in Calcutta. The

complainant several times attempted to enter her matrimonial home but she was

refused any entry and finally a divorce suit was filed against her. The

complainant after repeated attempts had been successful to meet her daughter at

her hostel. Finally the complainant alleges that her husband and the other

accused persons have retained her stridhan properties and are unwilling to hand

over the same.

Mr. Sudipto Moitra, Ld. Senior Advocate appearing for the petitioner

submits that it is an admitted position that the petitioner being the elder brother-

in-law was staying at Calcutta and the cause of action, according to the

complainant arose within the jurisdiction of Tamluk. He has further contended

that except certain stray narration no specific role or overt act has been ascribed

to the present petitioner. Further the crux of the allegations related to physical

cruelty, mental cruelty and retention of stridhan properties which are primarily

alleged against the accused/husband.

Mr. Moitra has also drawn the attention of this Court to the statement

under Section 200 of the CrPC so recorded by the Ld. Magistrate in respect of the
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complainant, Papiya Banerjee and her father, Rajat Ganguly. In the said

statement on solemn affirmation before the Ld. Magistrate both the witnesses did

not refer to the petitioner or any role attributed to him in respect of the offences

alleged off. It is the further contention of the Ld. Senior Advocate that admittedly

the complaint was filed almost after 16 years of marriage and at a time when the

divorce was pending before the Civil Court. Mr. Moitra, in support of his

contention, has relied upon Preeti Gupta vs. State of Jharkahand (2010) 7

SCC 667, Neelu Chopra vs. Bharti (2009) 10 SCC 184, Swapnil vs. State of

M.P. (2014) 13 SCC 567, Appasaheb vs. State of Maharashtra (2007) 9 SCC

721 and Geeta Mehrotra vs. State of U.P. (2012) 10 SCC 741.

The petitioner has been residing at Calcutta since 1975 with his family

consisting of his wife and son. Taking into account the allegations made in the

petition of complaint, it is an admitted fact that at no point of time the petitioner

was physically present when the incidents relating to torture had taken place,

which raises a doubt regarding the complicity of the petitioner so far as the

allegations which have been made in the petition of complaint. Needless to

reiterate that it is an accepted position in the complaint itself that the petitioner

was never residing and or sharing the same hearth or home where the

complainant alleged that the offences relating to physical and mental torture has

taken place. Further so far as the entrustment of the stridhan articles are

concerned the same has been with her husband, the accused No.1 in the petition

of complaint. Again the demand of money as alleged was also attributed to her
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husband and the petitioner’s role was never detailed except once for the purpose

of abetment. It would not be out of place to state that the present proceedings

was initiated at a stage when the complainant’s daughter was 10 years old and

the marriage was subsisting for 16 years. In such circumstances the observation

of the Hon’ble Apex Court in Preeti Gupta’s Case, which held as follows:-

“…….The allegations of harassment of husband’s close relations who
had been living in different cities and never visited or rarely visited the
place where the complainant resided would have an entirely different
complexion. The allegations of the complainant are required to be
scrutinized with great care and circumspection.”

Additionally in Geeta Mehrotra’s case, it has been held as follows:-

“….. the factual position remains that the complaint as it stands lacks
ingredients constituting the offence under Section 498-A IPC and
Sections 3/4 of the Dowry Prohibition Act against the appellants who
are the sister and the brother of the complainant’s husband and their
involvement in the whole incident appears only by way of a casual
inclusion of their names. Hence, it cannot be overlooked that it would
be total abuse of process of law if we were to remand the matter to the
High Court to consider whether there were still any material to hold
that the trial should proceed against them in spite of absence of prima
facie material constituting the offence alleged against them.”

Consequently, having due regard to the averments/allegations made in the

petition of complaint as also the examination of the complainant and her father

under Section 200 of the CrPC on solemn affirmation and the settled principles of
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law, I am of the opinion that further continuance of the proceedings, so far as the

present petitioner is concerned, would be an abuse of the process of law and the

same if allowed to continue would result in miscarriage of justice.

As such the proceedings being Complaint Case No. 896 of 2003, so

pending against the petitioner before the Ld. CJM, Tamluk is hereby quashed.

CRR 3263 of 2006 is accordingly allowed.

However, the Ld. Magistrate would be at liberty to proceed with the

complaint in respect of rest of the accused persons.

Urgent Xerox certified photocopies of this judgment, if applied for, be given

to the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)

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