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Rita Bhattacharya And Anr.-vs-State Of West Bengal And Anr. on 12 May, 2006

Calcutta High Court Rita Bhattacharya And Anr.-vs-State Of West Bengal And Anr. on 12 May, 2006
Equivalent citations:(2007) 1 CALLT 43 HC
Author: S P Talukdar
Bench: S P Talukdar

JUDGMENT

Sailendra Prasad Talukdar, J.

1. Petitioners by filing an application under Section 482 of the Code of Criminal Procedure sought for quashing of the proceeding in G.R. Case No. 1212 of 2000 under Section 498(A)/406 of the Indian Penal Code now pending before the learned Sub-Divisional Judicial Magistrate, (re-designated as A.C.J.M.), Durgapur, District-Burdwan.

2. Grievances of the petitioners may briefly be stated as follows:

The only son of the petitioners namely, Stabak Sundar Bhattacharjee got married to O.P. No. 2 on 24th November, 1999. It was duly solemnised according to Hindu Rites and Customs Petitioners’ son, Stabak, resides at Brookton, U.S.A., after marriage, Stabak left for U.S.A. on 05.12.1999. Opposite Party No. 2 after getting Pass Port and Visa went to U.S.A. on 05.02.2000. An amount of Rs. 33,500/- was paid by the petitioners in connection with such journey of O.P. No. 2 to U.S.A. This was acknowledged by the father of the O.P. No. 2 by letter dated 16.02.2000. But O.P. No. 2 did not like to stay with her husband in U.S.A., and within a very short time, after picking up quarrel with her husband in U.S.A., wanted to come back. Stabak was disgusted with such conduct of his wife and allowed his wife. O.P. No. 2, Sumana to return to Durgapur on 04.04.2000. On 03.05.2000, Sumana informed her husband that she would like to go to Pondichery to meet her parents-in-law before joining her husband in U.S.A. Being accompanied by mother and mother’s friend, Sumana went to Pondichery on 20.05.2000 and returned back on the following day. Thereafter, O.P. No. 2, Sumana again went back to her husband on 18.07.2000. Her behavioural pattern, however, did not change and she, in fact, intensified her quarrel with husband. Stabak brought her Air ticket for second time on 14.08.2000 and she came back to Durgapur, Burdwan. After returning from U.S.A. on 15.08.2000 the O.P. No. 2 filed an application before the learned Court of Sub-Divisional Judicial Magistrate, Durgapur on 05.09.2000 alleging, commission of offences under Section 498A/406 of IPC. The learned Court on receipt of such complaint sent the same to the Police authority for investigation and Durgapur Police Station Case No. 340 of 2000 dated 12.11.2000 under Section 498A/406 of IPC, was, thus, started against the petitioners and their only son, Stabak.

3. Allegations made in the FIR are entirely false. But, on 15.01.2001 the petitioner No. 2 was arrested at Pondichery and was, thereafter, let out on bail. Police authority after completion of investigation submitted charge sheet being Durgapur P.S. Case No. 340/2000 dated 12.11.2000 under Section 498A/406 of IPC. Learned Magistrate by order dated 03.05.2002 took cognizance of the said offences.

4. It was alleged by the defacto complainant that at the time of her marriage with Stabak, various gifts including 20 bhories of gold ornaments were given. On 05.12.1999 when accused No. 1 left for U.S.A. leaving his wife, the defacto complainant behind, he requested the complainant to hand over the gold ornaments to his parents being petitioners No. 2 and 3. Accordingly, the same were handed over to them when they left on Pondichery on 05.12.1999. After the complainant went to Pondichery on 22.12.1999 she was subjected to mental and physicaltorture by the present petitioners and she was driven out from their place on 04.01.2000 thereby compelling her to take shelter at her parents place at Durgapur. When she went to U.S.A., her husband/accused No. 1 treated her with indifference and subsequently started inflicting physical and mental torture on her. She returned on 04.04.2000. On 17.05.2000 she being accompanied by her mother and another went to Pondichery, but the petitioners abused them in filthy languages and on 20.05.2000 they were driven out. Being advised by her parents, the complainant went to U.S.A. again on 17.08.2000. She was forcibly sent back from U.S.A. by her husband. She consistent torture by the accused persons made her sick. The accused persons No. 2 and 3 refused to return the gold ornaments to defacto complainant when the same were demanded by her.

5. It is alleged by the petitioners in the present application that all the allegations made in the written complaint are false. Petitioners claimed that from the letter dated 17.02.2000 of the parents of the complainant and the letter dated 03.05.2000 of the complainant herself it would be amply clear that the allegations made in the written complaint were entirely false and fabricated. The medical certificate and the prescription as well as the voucher clearly expose the utter hollowness of the written complaint. The present petitioners were not in anyway connected and there can be no occasion for them to inflict any sort of torture on the complainant. The entire allegations made in the petition of complaint and the charge sheet would clearly establish that there cannot be even a prima facie case under Section 498A of IPC or under Section 406 of IPC. The marriage between the complainant and the son of the present petitioners was dissolved by a Judgment and order dated 10.01.2002 passed by the Justice Probate and Family Court Department, Common Wealth of Massachusetts.

6. In such circumstances, the petitioners sought for quashing of the instant proceeding being G.R. Case No. 1212 of 2000.

7. Learned Counsel, Mr. Biplab Mitra, appearing on behalf of the petitioners at the very outset invited attention of the Court to the letter dated 17.01.2002 addressed to their son Stabak. There is clear mention in the said letter that the parents of the defacto complainant being impressed with the conduct of Stabak felt quite assured and expressed that they had no reason to worry. Attention of the Court was also drawn to the copy of the letter dated 03.05.2000. There is reflection of healthy and harmonious relationship between the parties in the said letter as well.

8. Mr. Mitra submitted that in such backdrop there could be no justification whatsoever for the learned Court to direct investigation of the complaint, which was presented before it, nor the Investigating Authority had any reason to file charge sheet.

9. Learned Counsel for the petitioner referred to the copy of the letter dated 10.02.2000 written by the father of the defacto complainant. In such letter addressed to the petitioner No. 2, the father of the defacto complainant invited the present petitioners to come and stay with them at Durgapur. According to learned Counsel for the petitioner, the tone of the letter would clearly indicate that the relationship between the two families was quite normal and healthy.

10. Before proceeding further it may be necessary to mention that power of quashing of proceeding under Section 482 of the Criminal Procedure Code can only be exercised in extreme situation and, of course, in discreet manner.

11. The Apex Court in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. , clearly laid down the

guidelines in this regard. A reference to the said guidelines may be of assistance and the same are reproduced as follows:

1) Where the allegations made in the First Information Report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commision of any offence and make out a case against the accused.

4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7) Where a criminal proceeding is manifestly attended with malafide and/or proceeding is maliciously instituted with an ultetior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

12. Learned Counsel Mr. Mitra submitted that there is no reason for this Court for not quashing the proceeding if it is found that the allegations made in the complaint suffer from inherent contradictions. According to learned Counsel Mr. Mitra appearing for the petitioners by no stretch of imagination the present petitioners could be implicated with the alleged offences under Sections 498A/406/34 of Indian Penal Code.

13. He referred to the decision in the case of Ramesh and Ors. v. State of Tamil Nadu reported in 2005 SCC (Cr) 735, in support of his contention that when allegations made in the FIR do not constitute an offence, learned Magistrate could not have had any basis for taking of cognizance.

14. In the case of Y. Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr. reported in 2004 C Cr LR (SC) 972, the Apex Court referred to the Halsbury Laws of England to explain “cause of action”. There, in Halsbury Laws of England (Fourth Edition) “cause of action” has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. In the decision the Apex Court observed that “the expression ’cause of action’ has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstance forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the. proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the Judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in ’cause of action’.”

15. Referring to the said decision Mr. Mitra submitted that there could be no cause of action so as to justify proceeding against the present petitioners in the case.

16. Reference was also made to the decision in the case of Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharaful Haque and Anr. reported in 2005 SCC (Cri) 283, in support of the contention made on behalf of the petitioner that it would be an abuse of the process of the Court to allow any action which would result in injustice and prevent promotion of justice, Mr. Mitra contended that when a complaint is sought to be quashed, it is permissible to look the materials to assess what the complainant has alleged and whether any offence made out even if the allegations are accepted in toto.

17. On the other hand Mr. S.S. Roy, learned Counsel for the Opposite Party/State submitted that investigation of the present case was completed quite sometime back and charge sheet had been submitted. Mr. Roy referring to the decision in the case of State of Bihar and Anr. v. P.P. Sharma and Anr. reported in 1991 Cr LJ 1438, submitted that the High Court cannot look into the annexures and the affidavits annexed to the application and thereby convert itself into a Trial Court and then, declare the accused to be innocent and quash the proceeding.

18. Learned Counsel Mr. Roy emphatically submitted that the commission of offence cannot be decided on affidavit evidence. In this regard, Mr. Roy further relied upon the decision in the case of State of M.P. v. Awadh Kishore Gupta and Ors. reported in 2004 SCC (Cri) 353, wherein it was held that it was impermissible for High Court to look into materials, the acceptability of which was essentially a matter for trial. Mr. Roy categorically submitted that the Court should not act on annexures to the petitioners under Section 482 of the Code, which cannot be termed as evidence without being tested and proved.

19. Mr. Roy contended that such view derive further support and strength from the decision in the case of M. Narayan Das v. State of Karnataka and Ors. reported in 2004 SCC (Cri) 118. Reference was also made to the decision in the case of State of Orissa v. Debendra Nath Pandhi reported in 2005 SCC (Cri) 415, in support of the contention that there is no provision in the Criminal Procedure Code which grants to the accused any right to file any material or document at the stage of consideration of charge and such a right is granted only at the stage of trial.

20. Mr. Roy further submitted that question of quashing of FIR after filing of the charge sheet is also not permissible and in this context he relied upon the decision in the case of State of Punjab v. Dharam Vir Singh Jethi reported in 1994 SCC (Cri) 500.

21. The Apex Court in the case of State of Punjab v. Subhash Kumar and Ors. reported in (2006) 1 SCC (Cri) 324, held that quashing of FIR by High Court by entering into the factual arena is wholly impermissible.

22. In the case of Rejesh Bajaj v. State NCT of Delhi and Ors. reported in 1999 C Cr LR (SC) 234, the Apex Court observed that the Court is not required to take a hypertechnical approach.

23. In the case of Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada reported in 1997 SCC (Cri) 415, the Apex Court held that the Court is required to consider only the averments made in the complaint or charge sheet at the stage of taking cognizance of offence and is not required to sift and appreciate evidence at that stage.

24. If the facts of the present case are weighed in the context of the aforesaid legal position, it can be seen that there are allegations in the petition of complaint which was directed to be treated as FIR constituting cognizable offence. It is true that there was hardly any scope for the defacto complainant and her husband/accused No. 1 to live together as husband and wife in India. There may also be force in the submission that the present petitioners also hardly lived with O.P. No.2. The copies of the letters, particularly, the letter addressed to the present petitioner No. 2 written by the father of the defacto complainant, as referred to earlier, goes a long way to indicate that the relationship between the parties could not be so sour as was attempted to be projected. But as repeatedly held by various High Courts as well as the Apex Court, the Court in exercise of its power under Section 482 of the Cr.PC is not required to measure the materials with coffee spoon. The documents or, materials relied upon by the defence cannot taken into consideration so as to brush aside the allegations made in the FIR and other materials as sought to have been relied upon by the prosecution.

25. In the FIR there is allegation that the husband of the defacto complainant directed O.P. No. 2 to handover the ornaments to the present petitioners. It is claimed that the O.P. No. 2 in compliance with the same duly handed over the same. Thereafter, grievance is raised that the said ornaments were not returned even when asked for. There are allegations in the FIR that the O.P. No. 2 being accompanied by her mother and another went to the residence of the petitioners at Pondichery but were treated in a rude and crude manner and were compelled to return.

26. It has been mentioned time and again that this Court is not competent to analyse or assess the allegations made by the defacto complainant in the present case nor there is any scope to weigh the materials. The fact remains that such allegations, if taken into consideration in toto, certainly disclose cognizable offences. As such, it is, neither possible nor desirable for this Court to nip the entire thing in the bud in exercise of its inherent power under Section 482 of the Criminal Procedure Code.

27. In my opinion, it cannot be said right at this stage that continuation of the proceeding will anrount to an abuse of the process of the Court.

28. Having regard to the aforesaid discussion, the present application being C.R.R. No. 906 of 2004 be dismissed. This also disposes of C.R.A.N. No. 2069 of 2005.

29. Interim order, if any, stands vacated. Learned Court is directed to proceed with the case being G.R. Case No. 1220 of 2000 in accordance with law without, of course, being in anyway guided by any observation made in the body of the Judgment.

Criminal department is directed to supply xerox certified copy of this order, if applied for, to the learned Counsel of the parties as expeditiously as possible after due compliance with the legal formalities.

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