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Tapan Kumar Mukherjee-vs-State Of West Bengal And Ors. on 15 July, 1994

Calcutta High Court Tapan Kumar Mukherjee-vs-State Of West Bengal And Ors. on 15 July, 1994
Equivalent citations:1995 CriLJ 1985
Author: R Pal
Bench: R Pal

ORDER

Ruma Pal, J.

1. The subject matter of challenge in this writ application is criminal proceedings initiated on the basis of a First Information Report (referred to as FIR). The FIR No. 76/93 was recorded on a complaint by the writ of the petitioner No. I being the respondent No. 10 herein. In the FIR it has been said :-

“The accused person subjected the complaint to physical and mental torture in furtherances (sic) of their common intention and also committed criminal breach of trust in respect of gold ornaments and valuable articles belonging to the complainant which were entrusted to the accused persons at the above noted date, time and place.”

The FIR has been prepared on the basis of the statement of the respondent No. 10 which was recorded in Bengali on 16-6-93. The statement roughly translated reads as follows:

“My name is Bhaswati Mukherjee. My father’s name is late Dulal Chandra Bhattacharjee. My father’s house is at P. 150 B CIT R-9 Scheme, Kankurgachi, Calcutta 54. I am 28 years old. I have passed the Higher Secondary Examination. On 11-8-84.1 was duly married to Tapan Kumar Mukherjee son of Binoy Mukherjee, resident of 740-A/1, Block ‘P’, New Alipore, Calcutta 53. Tapan Mukherjee is a lawyer by profession. He practises in the High Court. At the time of my marriage my middle brother-in-law (Sejho Bhasur) Sushil Kumar Mukherjee and my sister-in-law Geeta Rani Mukherjee demanded Rs. 20,000 in cash and 40 bhoris of gold from my mother. My mother and my relatives have fulfilled the demand of the groom’s family.

15 days afer the marriage my husband took away my entire jewellery and put them in a box which was kept in an almirah, the key of which remains with my mother-in-law. All my possessions were grabbed from me by my husband and if I ever asked for these he refused to give them to me. All my good sarees were torn into pieces by him. When I asked him the reason, he said “Besh Karechi, Tore Mayer Kache Thekay niaye aay.” The two persons who were employed to work in the house were driven away and I was made to do all the work.

One month after my marriage I became pregnant. During that time my husband pressurised me to get all jewelleries from my mother. Upon my refusal he started torturing me grievously. When my husband used to beat me then my sister-in-law and brother-in-law far from portecting me incited my husband to hem me. Almost every day my husband sister-in-law and brother-in-law used to torture me inhumanly both physically and mentally. Almost every day I was not given to eat. I told my mother of this torture as well as to other relatives of my father’s house. They used to tell me to bear everything. They used to tell me that everything would become alright later. I also told the other people of my father-in-law’s house about the torture. I left for my mother’s house when I was 8 months pregnant. There I gave birth to a daughter. At that time my mother paid for my entire expenses. My husband did not make any enquiry either about me or the child and did not make any payment. When my daughter was 5 months old I was forced to phone my husband. My husband said as a daughter had been born, my mother should be told to take the entire responsibility, and “whatever you want to do you could do”. Saying this, he put the phone down. Then I was forced to go to the Mahila Samity at Red Cross Place for help. Then they suggested me to contact Justice Padma Khastagir and pray for help from her. She having heard everything from me stopped all the Briefs of my husband. Exactly one week later later my husband came to my mother’s house and asked for forgiveness from me and my mother and insisted on taking me back. Thinking about my helpless condition I decided to return to my husband’s house and ultimately I returned to my father-in-law’s house. After this for about one month there was no bad behaviour with me. My husband then told me to ring up Justice Padma Khastagir and to tell her that my husband was not behaving badly with me any more. I acted accordingly to his request. A few days later, my husband started behaving badly with me like before. He started beating me up and he told me to get my father’s house conveyed in my name. After this I, in the middle of 88 became pregnant again and when I was carrying six months my husband kicked me with great force in my abdomen, as a result of which 1 became very ill and the Doctor told me to take complete rest. My mother brought me to my father’s house. Because of vacating the ground floor of my father’s house by a tenant, the ground floor became vacant. My husband brought all the articles received at the time of marriage to the said room on the ground floor. After staying in my father’s house for about a month my husband took me back to my father-in-law’s house. After this on my daughter’s birth day my husband brought me and my daughter to my father’s house. My brother-in-law also came. After this my husband brought a lot of mutton and flour and told me to cook meat and luchi. As I was ill, I was not agreeable to cook whereupon my husband hit me with great force on my stomach with a rolling pin and also abused me filthily. My bother-in-law also joined in this. This incident was seen by the servants in our house who called my mother. Then my mother came and tried to stop them. They continued to create disturbance with her and then they went home. When I was taken to a Doctor he told me to take sonograph. From the sonograph report it was revealed that the child’s condition was very bad. The Doctor told me to take complete rest. On 9th August 19891 gave birth to a son. The entire expense in this connection was paid by my sister’s husband as well as by myself. After this I have been living with my mother. Sometimes my husband comes to our house in drunken state accompanied by a lot of persons and behaves in an obscene manner. He also tries to frighten me over the phone and also threatenes me that he will pick me and the children up and kill us all. Once in a drunken state he had beaten my mother up and broken two of her front teeth. I had complained about all these torture to the Phulbagan Thanna. Even now he carries on all these kinds of torture. I would request you to help in this connection so that 1 can live safely with my children.”

2. It appears from the records that along with the letter of complaint dated 16th June 1993 there was a list of jewellery, sarees and warm clothes. According to the records as noted by G. Roy of the Detective Department the respondent Nos. 10’s complaint was placed before the DCDD who ordered as case to be started under Section 498A, 406/34 of the Indian Penal Code against the accused persons and to take up investigation. Investigation was accordingly, taken up. Statements were recorded of Gouri Bhattacharya, Arati Jana, Tapati Mukherjee and other family members of the respondent No. 10. A further statement was also taken from the respondent No. 10.

3. A report was then submitted to the DCDD by the said G. Roy. A request was made for the search of the matrimonial house of the petitioner No. 1 and the respondent No. 10. The permission was granted on 7th July 1993. A search warrant was issued by the Assistant Chief Judicial Magistrate, Sealdah on 8th July 1993. A search warrant was issued on the basis that the residence of the petitioners was used as a place for the concealment of properties in connection with the complaint No. 76 dated 17-6-93 under Sections 498/406/34, I.P.C. The search was conducted.

4. According to the petitioners, on 12th July 1993 at 9.30 am the respondents 7, 8 and 10 along with the police-force and anti-social elements forced their way into the petitioner No. I’s chamber when he was preparing to go to Court and searched and ransacked his entire house.

5. Twentyone articles were seized as per the seizure list of which thirteen were sarees, one was a warm cardigan, one a two piece night dress, two silver bowls, one box for vermillion powder, two silver rupees and one brass water pot.

6. The petitioner No. 1 was arrested. The petitioner No. 1 has said that he was threatened by the respondents Nos. 3 and 6 not only with fatal consequences but also with implication in false cases unless the petitioner No. 1 entered into an agreement for payment of money. The petitioner No. 1 was produced before the Addl. Chief Judicial Magistrate, Sealdah. He was remanded to Judicial custody. An application for bail was moved before the High Court. This was allowed subject to certain restrictions.

7. This writ application was moved on 16th August 1993. An interim order was passed in terms of prayer (e) of the writ petition restraining the respondents from taking any steps or continuing the investigation on the basis of the FIR dated 17th June 1993 being G. R. No. 1249 of 1993 as well as in respect of the criminal case on the basis thereof being criminal case No. 76 of 1993 dated 17th June 1993. It was also directed that if any further complaint was lodged by the respondent No. 10, no further action would be taken without the leave of the Court. Both the petitioner No. 1 and the respondent No. 10 were directed to be personally present in the Court’s Chamber on 30th August 1993.

8. It appears that the Court was desirous of effecting an amicable solution to the disputes between the parties. However, no such solution appears from the records. The interim order was continued from time to time. Ultimately the matter was released on 13th September 1993 by the Court. The matter was assigned before me.

9. After hearing the parties I directed the Police Authorities to produce the records of the case. By an order dated 7th October 1993 this Court directed the report under Section 173(2) of the Criminal Procedure Code to be submitted by 19th November 1993.

10. On 17th June 1993, the investigation into the case was completed. It was recorded that there was sufficient evidence against all the three named in the FIR to warrant a proceeding under Sections 498A, 406/34, I.P.C., and that they should be tried accordingly. The report of enquiry under Section 173 has been placed before this Court.

11. The matter was thereafter taken up for hearing.

12. The petitioners have said that the petitioner No. 1 who is the husband of the respondent No. 10 is a practising advocate of this Court, the petitioner No. 2 is a Senior Officer of the Indian Administrative Services and the petitioner No. 3 is a highly academically qualified lady and also enrolled as an advocate. The petitioners have challenged the proceedings briefly as follows :-

(1) that the complaint was launched before the Phool Began Police Station. There was no provision in the Criminal Procedure Code under which the Detective Department, Lalbazar could take up the matter.

(2) the FIR was concocted and manufactured with a mala fide motive and that the initiation and prosecution were tainted with mala fides and personal grudge and that the Court should stop the proceedings under Article 226.

(3) the allegations in the FIR related to a period prior to 9th August 1989. The petitioner No. 1 admittedly has been living separately from the respondent No. 10 since that date. The allegations relating to the period subsequent to 9th August 1989 were vague. The proceedings were in any event, barred Under Section 468 of the Code as more than three years had lapsed from the date of the commisssion of the alleged offence. It is also said that there is an inexplicable delay in filing the so-called FIR by the respondent No. 10.

(4) The necessary ingredients in respect of the allegations under Sections 498A and 406 of the Indian Penal Code were absent and no cognizance could be taken of the matter.

(5) The FIR was contradictory to the complaint lodged. It is urged that the respondent No. 10 had said in her complaint that the petitioner No. 1 had brought all the goods relating to the marriage to her mother’s house and thereafter there was no contact. It was said that there was as such no scope for dishonest appropriation or breach of trust of any goods belonging to the respondent No. 10. It is said that in the complaint there was no mention on any list of articles which were subsequently added on.

13. The State respondents have denied that there is any mala fide and have also submitted that the writ application should be dismissed.

14. The respondent No. 10 has submitted that the writ application should not be entertained because:

(1) there was an alternative and equally efficacious remedy available under Section 482 of the Criminal Procedure Code.

(2) the Court should not anticipate and hold that there was mala fide. Sufficient evidence had been collected to present a case before the Court. The report under Section 173 would have to be scrutinised by the Magistrate. The Court should, therefore, not quash the proceeding at this stage. Reliance has been placed on the decision in Mohan Pandey v. Smt. Usha Rani Rajgaria, AIR 1993 SC 1225 and State of Bihar v. Shri P. P. Sharma, AIR 1991 SC 1260 : (1991 Cri LJ 1438), in this connection.

(3) the Police Authorities had acted strictly in accordance with law as the information had disclosed a cognizable offence. The Officer-in-charge was bound to register the case under Section 157(1) of the Criminal Procedure Code. The decision of the Supreme Court in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604: (1992 Cri LJ 527), has been cited in this context.

(4) the Court should not go into the merits at this stage particularly when there were disputed questions of fact. Several decisions have been relied on in this connection.

(5) finally, it is submitted that the Magistrate taking cognizance would have to decide the point of limitation. It is urged that limitation is not against investigation but against cognizance under Section 190(2)(b) of the Criminal Procedure Code. In deciding the question of limitation the Magistrate would have to consider whether any earlier information had been given about the offences alleged in the FIR and consequently whether the offences could be tried together with the offence under Section 364, I.P.C., regarding which an FIR had been lodged on 13th June. If so, then even if the cognizance of the offences which were the subject matter of the FIR dated 17-6-93 was barred by limitation, it would not be barred if it could be tried along with the offence which was not so barred. Reliance has been placed on the provisions of Section 220(1) and Section 460(3) of the Criminal Procedure Code in support of this case.

15. There is no doubt that under Article 226 of the Constitution the Court has the power to and does interfere in criminal proceedings. The power is however exercised with circumspection and in cases where the circumstances are gross and clearly called for. This principle has been recognised in the case of State of Haryana v. Bhajanlal, AIR 1992 SC 604 : (1992 Cri LJ 527).

16. The submission of the petitioner that the proceedings were barred by limitation is based on Section 468 of the Code of Criminal Procedure. That Section provides :

“468. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be –

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purpose of this section, the period of limitation, in relation to offences which may be, tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

17. As already noted the FIR has been filed under Section 498A, Section 406 and Section 34 of the Indian Penal Code 1860. The substantive offence against the accused under those provisions are punishable with imprisonment of three years (S. 406) or more (S. 498A), or with fine or with both. The period of limitation under Section 468(2)(c) would be therefore three years from the commission of the offence. Even assuming that the period for taking cognizance of the offences complained of have expired as contended by the petitioners there is power under Section 473 of the Code of Criminal Procedure which allows a Court notwithstanding anything contained in the Chapter relating to limitation for taking cognizance, to take cognizance of offence after the expiry of limitation, if it is satisfied on the facts and in the circumstance of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice.

18. Therefore the limitation under Section 468 is not an absolute bar but is subject to the power under Section 473 of the Act. This Court cannot under Article 226 pre-empt a decision on the issue by the Magistrate by holding that there was no scope for exercising the power under Section 473 of the Code of Criminal Procedure to condone the delay. The power to consider the question of limitation is in any event, one which is vested solely in the Court taking cognizance.

19. The submission of the petitioners on this ground is for the reasons stated unacceptable and is rejected.

20. The second ground urged by the petitioners is to the effect that the proceedings had been initiated mala fide and in abuse of process. There is no material on the basis of which this Court can be satisfied that the proceedings had been initiated with the motive alleged.

21. It appears from the records that the police had obtained necessary permission to search the petitioners premises and seized the articles in connection with the complaint. There does not appear to be any apparent case of high-handedness which would justify this Court in exercising its power of judicial review under Article 226.

22. The third submission of the petitioners is that no offence was disclosed even if the statements contained in the FIR are taken to be as correct.

23. The allegation in the FIR is that the petitioners had committed offences under Section 498-A, 406 read with Section 34 of the Indian Penal Code.

24. Section 498-A of the Indian Penal Code in so far as it is relevant reads as follows :-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.-

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

25. Section 406 provides for the punishment in respect of criminal breach of trust. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code. It deals with the the dishonest, misappropriation, conversion, use or disposal of property which has been entrusted or over which such person has dominion, in violation of law or contract express or implied.

26. Section 34 of the Indian Penal Code reads as under:-

“34. Acts done by several persons in furtherance of common intention.-

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner it as if were done by him alone.”

27. The authorities as I read them lay down that the Courts will interfere under Article 226 if the allegations contained the FIR, taken as correct do not disclose an offence.

28. In the FIR all the three petitioners have been named. The language of the FIR has already been quoted. If these allegations are taken to be correct it cannot be said that no offence under Sections 498-A and 406 read with Section 34 of the Act is disclosed.

29. It may be that there is no exact correspondence between the complaint and the FIR. The complaint is lodged by a lay person. It is unrealistic to expect that such a person will lodge a grievance in a form which complies with the technicalities of law, It is for the law enforcing agencies to take a substantial view of the matter and consider whether the complaint amounts to a crime shorn of legal niceties or technicalities.

30. The investigation in this case in complete. The report under Section 173(3) has been submitted to this Court. The only question now is whether the Magistrate will take cognizance on the basis of the report.

31. Having considered the facts and law, in my view, this is not such a case which warrants interference under Article 226 of the Constitution at this stage. The application appears to be somewhat premature. I am also of the view that in a matter of this nature it would have been more appropriate for the petitioners to have availed of the remedies provided under the Code of Criminal Procedure and not to have invoked this Court’s jurisdiction under Article 226 of the Constitution.

32. For the reasons aforesaid the writ application is dismissed. All interim orders are vacated. There will be no order as to costs.

33. The oral prayer for stay of operation of the judgment and order dated 15th July, 1994 is allowed for a period of two weeks from date.

34. Let the records produced by the learned Advocate for the State be retained by officer of this Court as long as the stay is operative, Liberty is granted to the department to reform the records in the event the stay is vacated either by efflux of time or by virtue of orders of Court.

35. Let xerox copy of the judgment and order be made available to all the concerned parties if applied for, on the issued terms and undertaking.

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