Calcutta High Court (Appellete Side)
Smt. Mira Ghosh vs Smt. Mira Ghosh on 17 August, 2009
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 965 of 2009 with CRAN No. 1566 of 2009 Smt. Mira Ghosh versus Smt. Mira Ghosh For Petitioner : Mr. Biplab Mitra Mr. Arindam Sen For State : Mrs. Ishita Chatterjee Heard On : July 30th, 2009.
Judgment On : 17-08-2009.
Invoking Section 482 of the Code of Criminal Procedure, this criminal revision has been brought before this court by one of the accused for quashing of the impugned complaint under Sections 494/120B of the Indian Penal Code against him, which is now pending before the Learned Judicial Magistrate, 4th Court, Howrah.
2. Mr. Biplab Mitra, learned advocate appearing in support of this application urged before this Court except the allegations made in the petition of complaint, no allegation has been made against the petitioner in the initial deposition of the complainant and her witnesses recorded under Section 200 of the Code of Criminal Procedure. He further submitted that in connection with this case the court directed for an enquiry under Section 202 of the Code of Criminal Procedure and during such enquiry nothing has been divulged against the present petitioner. Accordingly, Mr. Mitra submitted, since no case has been made out, the Learned Magistrate should not have issued process against the present petitioner and the case against her is liable to be quashed.
In support of his contention, Mr. Mitra relied on the following decisions, viz., (i) Ram Biraji Devi & Anr. Vs. Umesh Kumar Singh & Anr., reported in (2006) 2 C Cr. LR (SC) 118, (ii) Sankar Finance & Investments Vs. State of Andhra Pradesh & Ors., reported in (2008) 3 SCC (Cri.) 558, (iii) Nirmaljit Singh Hoon Vs. State of West Bengal & Anr., reported in 1973 SCC (Cri) 521 and
(iv) National Small Industries Corporation Ltd. Vs. State (NCT of Delhi) & Ors., reported in (2009) 1 SCC (Cri) 513.
On the other hand, Mrs. Ishita Chatterjee, learned advocate appearing on behalf of the complainant submitted before this court that since there has been specific allegation against the petitioner in the petition of complaint, absence of further allegation against her in the initial deposition of the complainant or witnesses is of no consequences and prays for dismissal of this criminal revision.
3. I have given my anxious and thoughtful consideration to the rival submissions of the parties. Perused the petition of complaint, the initial depositions of the complainant and his witnesses recorded under Section 200 of the Code of Criminal Procedure as well as the report of enquiry under Section 202 of the Code of Criminal Procedure.
It appears from the petition of complaint except in Paragraph 11 thereof nothing has been stated as against the present petitioner. The allegations made therein are quoted below;
"That finding no other alternative the complainant is filling this case against her husband Sri Anup Kumar Ghosh accd. no. Nilima Sikdar accd. no. 2, who performed their marriage knowing fully well regarding the subsistence of the first wife of the accd. no. 1 i.e. the Complainant and also against the accd. no. 3, who conspired with the accd. no. 1 and 2 to perform their marriage during the life time of the complainant, who is the first wife of the accd. no. 1 so the accd. persons no. 1 and 2 have committed the offence of bigamy and the accused no. 3 is responsible for committing the offence of conspiracy of bigamy."
4. Now having gone through the initial deposition of the witnesses recorded under Section 200 of the Code of Criminal Procedure, namely, the complainant, Mira Ghosh and her witnesses, Partha Ghosh, Rampada Bose and Preety Ranjan Bose, I do not find any iota of allegation as against the present petitioner.
5. The examination of the complainant and his witnesses under Section 200 of the Code is not an empty formality and the real object behind the same is to ascertain whether the case against the accuseds are supported by prima facie materials or not. In other words, the object is to enable a court to satisfy itself about the existence of prima facie case against whom the complaint has been made and to ensure that the Court proceedings must not be permitted to degenerate into weapon of harassment and to prevent the abuse of process of court by lame prosecution. Similarly, the object of Section 202 of the Code is to enable a Court even after recording of evidence of the complainant and his witnesses to enquire into the matter himself or direct an investigation to be made by a police officer or by such other persons in order to determine whether or not there is sufficient ground for proceeding against any particular accused where Court finds the materials already on record does not inspire confidence to issue process. Therefore, once Court directed an investigation or investigation under Section 202 of the Code the result of such investigation or enquiry has a vital role to be played in deciding the question of issuance of process.
6. In the present case as have already been found, except the allegation of conspiracy made in one paragraph of the petition of complaint against the present petitioner, nothing has been forthcoming in support of the same either from the initial deposition of the witnesses recorded under Section 200 of the Code or from the report of enquiry held under Section 202 of the Code.
7. Thus, in my opinion, issuance of process against the petitioner in connection with the aforesaid case is not at all justified and brings out a situation which is completely an abuse of process of Court as there was no sufficient ground for proceeding against her. Accordingly, for ends of justice the impugned complaint as against the present petitioner is quashed.
This criminal revision stands allowed.
In view of the disposal of the main criminal revision C.R.R. No. 965 of 2009, an application for stay of the proceeding being Complaint Case No. 588C/2007 being CRAN No. 1566 of 2009 stands disposed of.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
( Ashim Kumar Roy, J. )