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Suparna Mukherjee vs The State Of West Bengal & Anr on 2 May, 2017

IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)

C.R.R. No. 3665 of 2013
With
C.R.A.N. No. 990 of 2017

Suparna Mukherjee
Vs.

The State of West Bengal Anr.

Present : The Hon’ble Justice Siddhartha Chattopadhyay

For the Petitioner : Ms. Minoti Gomes,
Mr. Shibaji Kr. Das,
Mr. Ahson Ahmed.

For the Opposite Party : Mr. Sudipta Moitra, Sr. Adv.,
Mr. Jyotirmoy Banerjee,
Mr. Biplab Das.

Heard On : 07.04.2017.

C.A.V. On : 07.04.2017.

Judgment Delivered On : 02.05.2017.

Siddhartha Chattopadhyay, J.:

The petitioner herein challenges the impugned order dated 19th

August, 2013 passed by the learned Judicial Magistrate, 1st Court Sealdah

in G.R. Case No. 2664 of 2009 which arose out of Tala Police Station Case

No. 48 of 2009. According to the petitioner her prayer for further

investigation under Section 173 (8) of Cr.P.C. has been wrongly rejected by

the learned Court concerned.

2. This case has a chequered history. Factual aspect of this case

requires to be revisited. According to the petitioner, she is the wife of the

private opposite party. She was subjected to torture. Her marriage was
registered under Special Marriage Act on 1st February, 2003. Thereafter she

was taken to Kali Temple and the opposite party put vermillion on her

forehead and put the conch bangles on the wrist of the complainant by

chanting ‘mantras’. She has also disclosed in her petition that in one T.V.

Serial at Tollygunge, she met him and intimacy was developed between them

which culminated to their marriage. After two years, the opposite party

started neglecting her and as a result their relationship became strained.

The opposite party deserted her without any shy me and reason and not

only that he had given out threats to the complainant for kidnapping her

minor child. Thereafter the opposite party had instituted a proceeding

against her for nullity of marriage before the learned Additional District

Judge 7th Fast Track Court, Alipore. Now, the petitioner has come know that

the opposite party has another wife and a child also. In the said case the

present opposite party contended that this petitioner has married thrice.

However, in the divorce suit filed by the private opposite party, the petitioner

prayed for alumni pendente lite which awaits final adjudication. She has

also prayed for enhancement of the quantum of alumni pendente lite. She

also moved an application for maintenance under Section 125 Cr.P.C. but

that has been stayed due to the civil suit pending between them. So there

are spiralling of cases and counter cases between the parties. On the basis

of her allegation, charge-sheet has been submitted under Section 498A

I.P.C. although her allegation was under Sections 498A/376/420 of I.P.C.

Being aggrieved at it she has filed an application for further investigation

before the learned Judicial Magistrate, who in turn, rejected the said plea

holding inter alia, that Section 173(8) of the Code is an enabling provision
under which even after completion of the investigation and submission of

report in final form, if any new material having an intensive value either to

prove or disprove the charge is revealed, investigating agency would be

entitled to bring the attention of the court to such new material by way of

filing a supplementary report in final form. As such it is absolutely within

the domain of the investigating agency to make further investigation and for

causing further investigation, the law as it stands now no permission is

necessary for the investigating agency as held by the Hon’ble Apex Court. In

a reported decision to the effect that it is desirable to appraise the court of

such further investigation and ultimately held it is further nowhere spelt out

in the Cr.P.C. that the de facto complainant may file application requesting

direction from the court for further investigation or re-investigation. The

Court can exercise its jurisdiction only within the realm of the Code.

Indisputably, the investigating agency as per sub-section (8) of section 173,

Cr.P.C. can request the Court to grant permission to investigate into the

matter further. It does not provide the right to the de facto complainant to

file such application.

3. In view of the above discussion and consideration, the petition filed

by the de facto complainant for further investigation was rejected on contest,

by the learned court below.

4. At the time of hearing, the learned Counsel appearing on behalf of

the petitioner, contended that child is begotten by the opposite party. The

opposite party himself has challenged the nullity of marriage and denied the

factum of marriage in his a matrimonial suit. In such circumstances, she
averred that since the child is begotten by opposite party and so Section

375(4) of I.P.C. shall come into play. If it was held that the opposite party is

not the husband of the present petitioner then the said cohabitation would

amount to rape. It is also urged by the petitioner that it was never disclosed

by the accused opposite party that he was previously married. Not only that

the opposite party himself filled up the form of registration of marriage

declaring himself as unmarried and taking advantage of that, he did

cohabitation with the present petitioner and as a result a son was born. He

categorically argued that it is in the domain of investigation to unearth the

truth by collecting cogent evidence and the investigation has been done by

the Investigating Officer in a very slip-shod manner without ascertaining,

who is the father of the son.

5. The learned Counsel appearing on behalf of the opposite party has

referred two decisions reported in (2013) 5 SCC 762, (2006) 3 SCC (Cri) 245,

and a decision reported in (2010) 3 C.Cr.L.R. (SC) 210. After referring those

decisions the learned Counsel appearing on behalf of the opposite party

mainly submitted that the decision of Hon’ble Apex Court reported in AIR

2017 SCC 774 should be applied here.

6. Learned Counsel appearing on behalf of the petitioner contended

that the Court can very well direct for further investigation so far as D.N.A.

test is concerned. He mainly relied on a decision reported in AIR 2015 SCC

418 in connection with Dipwanita Roy Vs. Ranabrata Roy.

7. Have gone through all the decisions referred to above by the rival

parties, the decision reported in 2017 SCC 774 practically has taken care of
all the related decisions. Hon’ble Apex Court opined:- “fresh investigation”,

“re-investigation”, “de novo investigation”, however is an exercise, which it

was held, could neither be undertaken by the investigating agency suo motu

nor could be ordered by the Magistrate and that it was essentially within the

domain of the higher judiciary to direct the same and that too under limited

compelling circumstances warranting such probe to ensure a just and fair

investigation and trial. Finally, the Hon’ble Apex Court held that no power is

vested to the learned Magistrate to issue a direction for further investigation

after post cognizance stage. Therefore, now the law is well-settled by the

Hon’ble Apex Court that a de facto complainant cannot seek for further

investigation of a case after post cognizance stage. Although in that case it

was at the stage of argument, where the de facto complainant prayed for

reinvestigation but in this instant case that stage has not yet come. In the

celebrated judgment reported in AIR 2017 SCC 774 the Hon’ble Apex Court

has left it for the discretion of higher judiciary to consider it. Therefore, High

Court can invoke its own jurisdiction vested under Section 482 of Cr.P.C., to

‘secure ends of justice’ and to ‘prevent abuse of process of law.’

8. It is an axiomatic truth that before invoking the power under

Section 482 of Cr.P.C. High Court must bear it in mind that to secure ends

of justice such an order is required. In this particular case, the opposite

party husband although resided with the petitioner as good as husband and

wife and that too on the basis of a registration under Special Marriage Act

followed by essential rituals i.e. putting of vermillion, give conch bangles and

by chanting ‘mantras’. Whether that marriage is valid or not that will be
considered by the learned Civil Court wherein the matrimonial suit is

pending. It is the specific assertions of the present petitioner that the

present private opposite party is the father of her child. If the so called sham

marriage was held and the present opposite party cohabited with the

present petitioner in that case Section 375 (4) is attracted. Neither the

concerned Investigating Officer nor the learned Judicial Magistrate

considered that aspect at the time of submission or receiving the charge-

sheet and also at the time of taking cognizance. Since a peculiar situation

arises, the duty of this Court is to scrutinize all these aspects in a broad

conspectus.

9. The learned Counsel appearing on behalf of the private opposite

party vehemently challenged that the question of D.N.A. test to ascertain the

paternity of a child cannot be ordered either by a criminal court or by any

other court because it is within the domain of the Civil Court. I am in

respectful disagreement with him on the ground that there are two factors,

namely whether there was a legal marriage or not and whether the child was

begotten from that lawful marriage or not. Both are distinct in their

respective natures. It may be that the marriage of the petitioner with the

present private opposite party is not lawful but the child is begotten by the

present opposite party. Then there is an ingredient of Section 375(4) of I.P.C.

Criminal trial is undoubtedly accused oriented but that does not mean that

the de facto complainant cannot point it out before the appropriate forum

i.e. before this Court for his/her redress. Before coming to the conclusion,

this Court has considered the following judgments reported in AIR 1993
Supreme Court Page 2295 in connection with Goutam Kundu -Vs.- State of

West Bengal, Bhartiraj -Vs.- Sumesh Sachdeo reported in AIR 1986

Allahabad 259, Vasu -Vs.- Santha, 1975 Ker LT 533, AIR 2005 Gujarat

Page 157 (Haribhai Chhanabhai Vora Ors -Vs.- Keshubhai Haribhai

Vora), 1995 CRI.L.J. 4090 (Bombay High Court) Sadashiv Mallikarjun

Kheradkar, Petitioner v. Smt. Nandini Sadashiv Kheradkar and (2005) 4

Supreme Court Cases 449 Banarasi Dass -Vs.- Teeku Dutta (Mrs) Anr,

Dipanwita Roy -Vs.- Ronobroto Roy, Sarada -Vs.- Dharampal (2003) 4 SCC

Page 493, Bhabani Prasad Jena -Vs.- Convenor Secretary, Orissa State

Commission for Women and another, (2010) 8 SCC 633.

10. The ratio of all these judgments referred to above go to suggest that

D.N.A. Test cannot be ordered as a matter of routine. When Section 112 of

the Evidence Act was enacted at that time there was not even any

contemplation of the legislature to make a provision regarding D.N.A. Test

which is virtually the outcome of advancement of modern science. It is

perhaps needless to repeat that if D.N.A. Test is done it will be clear if the

private opposite party is the biological father of the child or not. At the same

time it has to be kept in mind that a person cannot be compelled to undergo

D.N.A. Test.

11. This Court is not oblivious to the proposition incorporated in

Evidence Act in Section 114 read with Illustration (h) which may be

reproduced as follows:

(i) Section 114. Court may presume existence of certain facts

the Court may presume the existence of any fact which it thinks likely
to have happened, regard being had to the common course of natural

events, human conduct and public and private business, in their

relation to the facts of the particular case.

(ii) Illustration (h) – That if a man refuses to answer a question

which he is not compelled to answer by law, the answer, if given,

would be unfavourable to him. This course has been adopted to

preserve the right of individual privacy to the extent possible, of

course, without sacrificing the cause of justice. By adopting the above

course, the issue of infidelity alone would be determined, without

expressly disturbing the presumption contemplated under Section 112

of the Indian Evidence Act. Even though, as already stated above,

undoubtedly the issue of legitimacy would also be incidentally

involved.

12. Having regard to the facts and circumstances and after going

through the petition and hearing rival contentions of the parties and on a

meticulous reading of the decisions referred to above, I have no option left

with except to hold D.N.A. test is essential in this case to establish whether

the ingredient of Section 375(4) is there or not.

13. Accordingly, the Investigating Officer is hereby directed to

approach the private opposite party (accused) to undergo D.N.A. test and if

the private opposite party refuses to undergo D.N.A. test in that case the

trial court shall be at liberty to draw adverse presumption as enunciated by

the Hon’ble Apex Court in different judgments as mentioned above. The

Investigating Officer is hereby directed to take appropriate steps within a
month from this date in terms of the direction as above and if it is not done

in terms of the above order it will be presumed that he is trying to protect

the accused petitioner. Accordingly, this instant revisional application

stands allowed. Accordingly, the C.R.A.N. application being No. 990 of 2017

stands disposed of.

14. Let a copy of this order be sent to the learned Judicial Magistrate,

1st Court at Sealdah. I also make it clear that if ultimately the

supplementary charge-sheet is filed under Section 376 of I.P.C. in that case

the learned Judicial Magistrate shall take appropriate steps for commitment

of the same to the learned Sessions Judge without any undue delay. Let a

copy of this order be sent to the learned court below forthwith. Department

is directed to take prompt action.

15. Urgent certified photocopy of this Judgment and order, if applied

for, be supplied to the parties upon compliance with all requisite formalities.

(SIDDHARTHA CHATTOPADHYAY, J.)

A.F.R/N.A.F.R.

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