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Sri Swapan Banerjee & Anr vs The State Of West Bengal & Anr on 19 February, 2020

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APELLATE SIDE

The Hon’ble JUSTICE SUVRA GHOSH

C.R.R. No. 2763 of 2019

Sri Swapan Banerjee Anr.

V/s.

The State of West Bengal Anr.

For the Petitioners: Mr. Pawan Kumar Gupta, Adv.,
Ms. Sofia Nesar, Adv.

For the State: Mr. Sudip Ghosh, Adv.,
Mr. Bitasok Banerjee, Adv.

For the Opposite Party No. 2: Mr. Somopriyo Choudhury, Adv.,
Mr. G. Patra, Adv.,
Mr. Subrata Mukherjee, Adv.,

Heard on: 10.01.2020

Date of Judgment: 19.02.2020

SUVRA GHOSH, J. :-

1.

In the present application under section 482 of the Code of Criminal

Procedure, the petitioners have prayed for quashing the proceeding in

connection with Tamluk Police Station case No. 353 of 2019, dated

04-07-2019, under sections 498A/406/384/307/506(2)/34/120B of

the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition

Act, pending before the Learned Chief Judicial Magistrate, Purba

Medinipur, after being registered as G.R. Case No. 1342 of 2019.
2

2. The contention of the petitioners, in brief, is that opposite party no. 2

lodged complaint against her husband Tuhin Mahato and other

members of her matrimonial family only with the intention of

depriving them of the custody of her minor child. The First

Information Report does not reveal any offence against or role played

by the petitioners in commission of such offence. Opposite party no. 2

used to reside with her husband in Mumbai whereas the other

accused persons resided in Barrackpore. The petitioners are the

neighbours of the matrimonial family of the defacto

complainant/opposite party no. 2 and have been falsely implicated in

this case. They are not related to the defacto complainant in any

manner and no allegation under section 498A of the Indian Penal

Code is maintainable against them. They have obtained anticipatory

bail from this Court earlier. The allegations made in the complaint are

manufactured, false and absurd and do not constitute any offence

against the petitioners. As such, such proceeding is required to be

quashed in order to avoid abuse of the process of the Court.

3. Opposite party no. 1/State produced the case diary along with report.

It appears from the report that the petitioners are the paternal mother

in law and father in law of the defacto complainant (pish-shasur and

pishi-shasuri) and played an active role in provoking the other

accused persons in torturing the defacto complainant.

4. Opposite party no. 2 vehemently opposed the prayer of the petitioners

and submitted that the petitioners are members of the matrimonial
3

family of the defacto complainant and were actively involved in meting

out cruelty upon the defacto complainant. It is further submitted that

the jurisdiction of the Court with regard to the commission of the

alleged offence cannot be considered before filing of charge sheet.

Investigation is in progress and the truth and veracity of the

allegations made out against the petitioners are to be assessed by way

of evidence and the entire proceeding cannot be quashed at such

preliminary stage of investigation of the case.

5. On careful scrutiny of the First Information Report, it is evident that

the main thrust of the allegations is against accused nos. 1-5 who are

the husband of opposite party no. 2 and other members of her

matrimonial family. Though the petitioners have been arraigned as

accused nos. 6 and 7 in the F.I.R., the role attributed to them is that

they instigated accused nos. 1-3 against her during their frequent stay

in her flat at Thane. The F.I.R. is silent with regard to the relationship

of the petitioners with opposite party no. 2.

6. Pursuant to the written complaint, the Investigating Officer took up

the investigation of the case on 04-07-2019 and proceeded with such

investigation substantially. The Investigating Officer recorded

statement of the complaint and her relatives and strangely enough, no

independent witness or other witnesses from the locality of the

matrimonial home of the complainant were examined. In her

statement before the Investigating Officer on 10-07-2019, the defacto

complainant implicated her husband, parents in law, sister in law
4

(jaa) and brother in law (bhasur). The names of the petitioners

transpired in the subsequent statement of the defacto complainant

before the Investigating Officer and it was alleged that the petitioners

being the paternal mother in law and father in law of the defacto

complainant instigated the other accused persons.

7. It is a fact that jurisdiction under section 482 of the Code should be

exercised with extreme care, caution and circumspection and should

not be used to stifle or axe down a legitimate prosecution. The test is

whether the uncontroverted allegations as made out in the complaint

prima facie establish the case and also whether continuation of such

complaint shall amount to abuse of the process of law.

8. In the case in hand, though allegation against the petitioners is under

sections 498A/406/384/307/506(2)/34/120B of the Indian Penal

Code and section 4 of the Dowry Prohibition Act, the F.I.R. is bereft of

any material comprising any of the said allegations against the

petitioners. Save and except a general and omnibus allegation of

instigation by the petitioners in the F.I.R. as well as in course of

investigation, there is nothing on record which suggests a prima facie

case against them. The allegation of instigation is also not supported

by any cogent material and does not relate to any specific act or

incident. Allegations in the F.I.R are undoubtedly grave and such

allegations ought to be taken serious note of and redressed in

accordance with law. It is also trite law that graver the offence,

stricter is the burden of proving the same and in the least, a prima
5

facie case is required to be made out by the aggrieved. In the present

case, no prima facie case has been made out against the petitioners in

the F.I.R. itself. The F.I.R. is also silent regarding relationship of the

petitioners with the defacto complainant and strangely enough, the

first statement of the defacto complainant recorded by the

Investigating Officer also does not speak of such relationship. Such

alleged relationship has been brought into the picture at a subsequent

stage of investigation upon recording further statement of the defacto

complainant. Such developments cannot be given much weight as it

appears to have been made in order to improve the case of the

complainant. No reason has been assigned by the complainant as to

what prevented her from disclosing her alleged relation with the

petitioners despite having knowledge of the same even prior to lodging

the complaint.

9. Upon consideration of the entire material on record and taking into

account the contents of the complaint itself, I am of the view that the

complaint does not disclose any criminal offence under sections

498A/406/384/307/506(2)/34/120B of the Indian Penal Code, 1860

and Section 4 of the Dowry Prohibition Act against the petitioners and

continuation of such proceedings against the petitioners shall amount

to abuse of the process of the court.

10. In the result, the proceedings in respect of the petitioners in G.R.

Case No. 1342 of 2019 pending before the Learned Chief Judicial

Magistrate, Purba Medinipur, in connection with Tamluk Police
6

Station Case No. 353 of 2019 dated 04-07-2019, under sections

498A/406/384/307/506(2)/34/120B of the Indian Penal Code, 1860

and Section 4 of the Dowry Prohibition Act is liable to be quashed.

11. CRR 2763 of 2019 is allowed accordingly. The proceeding in G.R.

Case No. 1342 of 2019 pertaining to the petitioners and pending

before the Learned Chief Judicial Magistrate, Purba Medinipur, is

quashed.

12. The proceedings against the other accused persons of the case shall

proceed in accordance with law and shall not be influenced by any

observation made in the body of this judgment.

13. The petitioners be released at once and discharged from their bail

bonds.

14. There will be no order as to costs.

15. Copy of this judgment along with L.C.R. be sent down to the trial

Court at once.

16. 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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