IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
The Hon’ble JUSTICE SUVRA GHOSH
C.R.R. No. 2763 of 2019
Sri Swapan Banerjee Anr.
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. :-
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. 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
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
(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
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
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
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
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
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
(Suvra Ghosh, J)