IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
C.R.R. No. 3665 of 2013
C.R.A.N. No. 990 of 2017
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
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
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
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.)