Calcutta High Court (Appellete Side)
Bhabani Prasad Mali vs State Of West Bengal & Anr on 23 April, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
In the High Court at Calcutta Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Subhasis Dasgupta.
CRR No. 293 of 2019 Bhabani Prasad Mali Vs State of West Bengal & Anr.
For the petitioner : Mr. Avik Datta, Adv.
For the State : Mr. Binoy Kumar Panda, Adv.
Ms. Puspita Saha, Adv.
For the Opposite Party No.2 :Mr. Sujoy Sarkar, Adv.
For Judgment : 23.04.2019
Subhasis Dasgupta, J:-
This is an application under Section 482 of the Code of Criminal Procedure praying for quashing of a criminal proceeding being FIR No. 4 of 2018 dated 16.02.2018, Chandrapur Police Station under Sections 498A/493/417/307/323/506/354 and 34 of the Indian Penal Code now pending before the Court of ACJM Suri, Birbhum.
Learned advocate for the revisionist/husband sought for quashing of the proceeding referred hereinabove alleging that the instant criminal proceeding, initiated by the de facto complainant/opposite party No.2/wife, was nothing but a counter blast of civil suit being Title Suit No. 7 of 2018, filed by revisionist/husband against opposite party No.2/wife praying for declaration that the alleged marriage, said to be held on 05.04.2016 under Special Marriage Act 1954 between the parties, as null and void. The revisionist having denied the alleged marriage, instituted the aforesaid civil suit, which is pending for adjudication. According to petitioner, the opposite party No.2 admittedly received summons of the pending suit, and thereafter initiated the instant proceeding implicating revisionist and his family members with some cooked up materials, and if such proceeding was not allowed to be quashed, it was proposed, that it would be a glaring instance of perversity. The ingredients fell sort of the offence, complained of, in the in the instant proceeding, and accordingly it was submitted by the revisionist, that the instant proceeding should be quashed being wholly unsanctioned by law. The instant proceeding, according to revisionist, was purposive, vexatious and mala fide as well, which if allowed to be continued, would lead to abuse the process of the Court.
Learned advocate for the opposite party No.2 submitted that police had already submitted chargesheet against the accused persons making out a prima facie after collection of sufficient materials therefor, and when the chargesheet had already been submitted, it would be not wise to allow the quashing, as proposed by the revisionist. Thus, according to opposite party/ de facto complainant, the revisionist/husband being a civic volunteer, engaged by the police administration of the district concerned, developed of love affairs with the de facto complainant/opposite party No.2, and co-habitated with her a good number of times promising her to marry subsequently giving due recognition therefor. Since there was some problem faced by the revisionist/husband, the marriage between the parties was held under the provisions of the Special Marriage Act, and accordingly a marriage certificate was issued thereunder. At the time of marriage held under the provision of the Special Marriage Act, the parents of the de facto complainant gave Rs.2,75,000/- together with other valuables as per demand of the revisionist and his family members, but the parents of de facto complainant failed to satisfy further demand of Rs.5,00,000/- as further dowry together with other valuable items, when it was given to understand that de facto complainant would not be accepted as duly weded wife of petitioner giving her due recognition, unless the further demanded amount was liquidated.
The instant title suit praying for annulment of the marriage was filed against the de facto complainant/opposite party even after enjoying de facto complainant for a considerable period of time with a promise to marry her, and it was purposefully filed simply to put pressure upon the de facto complainant, so that she could not dare to enforce her marriage certificate before the competent authority established under the law.
Thus according to opposite party/wife, the instant proceeding was not at all a purposive, vexatious and mala fide, as alleged by the revisionist, and rather it was filed by the de facto complainant simply for redressing her grievance for being a victim of circumstances at the instance of revisionist/petitioner.
The learned advocate Mr. Panda, representing the State/opposite parties strongly opposed submitting that there could not be any quashing in the given set of facts, which stood ratified by sufficient materials being collected by the investigating agency during investigation. Thus, according to State opposite party, sufficient materials had been collected against the revisionist/petitioner, and without holding a trial, the culpability of the revisionist could not be effectively determined. The State/opposite party thus discouraged the prayer quashing, as proposed.
The only question in the given set of facts requiring decision is whether the instant proceeding, if allowed to be continued any more even after submission of the chargesheet, would lead to an inevitable inference that there will be an abuse of the process of the Court or not.
The power for quashment available under Section 482 of the Code of Criminal Procedure is ordinarily exercisable under three (3) circumstances.
(i) To give effect to an order contained in the Code.
(ii) To prevent abuse of the process of the Court.
(iii) Otherwise to secure the ends of justice.
The revisionist in the instant case was described to be a civic police volunteer, engaged by concerned district administration of police.
The contention raised in the FIR the that he developed love affairs with the de facto complainant, started co-habitating with her a good number of times with a promise to marry subsequently. The de facto complainant then entered into a marriage with petitioner under the provisions of the Special Marriage Act with high hope that she would be given due dignity and recognition shortly after social celebration of her marriage as per promise of petitioner. At the time of marriage under the Special Marriage Act, the parents of de facto complainant satisfied the monetary demand of the petitioner's family by paying cash money to the extent of Rs. 2,75,000/- together with other valuables. Subsequently, the petitioner's family demanded cash money of Rs. 5,00,000/- from de facto complainant and her family members, which could not be satisfied, and as a result thereof marriage could not be held socially. The petitioner even after marriage, held under the Special Marriage Act, visited the parental house of de facto complainant a number of times, and established physical relationship with de facto complainant with a promise of social celebration of marriage subsequently. When the family members of de facto complainant visited the house of the petitioner with a proposal for marriage, the family members of the petitioner felt aggrieved and attacked the de facto complainant, her father and other member causing injury them. The de facto complainant also sustained bodily injury on her person, and her modesty was outraged by the father of the petitioner in the process.
In terms of the allegations contained in the FIR police held extensive investigation, and submitted chargesheet making out a case under Section 498A/493/417/307/323/506/354/34 IPC against respective accused persons involved in this case.
Upon perusal of the statements already collected by the investigating agency, it appears that the police already collected statement of good number of people including one Member of Gram Panchayat, who left materials, supportive of a prosecution for the offence complained of against the respective accused persons involved in this case. The de facto complainant/victim herself made statement, which was recorded under Section 164 Cr. P.C. by the learned Magistrate. The statement recorded under Section 164 Cr. P.C. of the victim/de facto complainant appears to have been made in ratification of the contention depicted in the FIR itself. There could not be any material collected by the investigating agency, supportive of a prosecution under Section 307 IPC against any of the accused persons involved therein.
It is settled proposition of law that it is not permissible for the High Court to appreciate the evidence, as it can evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused persons and the Court cannot look into those materials, the acceptability of which is essentially a matter for trial. However, the law does not prohibit entertaining the petition under Section 482 Cr. P.C for quashing the chargesheet even before the charges are framed, or before the application of discharge is filed or even during the pendency of such application before the court concerned. The inherent power, therefore, should not be exercised to stifle a legitimate prosecution. In order to exercise such power the present court is under obligation to hold an enquiry with respect to the materials produced to the extent, it is necessary to find it out whether a prima facie case is made out or not. The materials already collected in the CD were highly reflection of commission of offence complained of providing materials therefor.
It is true that the de facto complainant admittedly initiated the instant proceeding after receiving summons of a civil suit wherein the Special Marriage of the de facto complainant held on 05.04.16 was sought for annulment of the said marriage. The petitioner/revisionist appears to be initiator of that civil suit. Though the instant proceeding was alleged to be a counter blast of the civil suit filed by the revisionist/petitioner, but the same would not be sufficient enough to encourage the proposed quashment ignoring the materials already collected during the course of investigation. Whether the instant proceeding is a counter blast or not, it may operative as defence to which may be effectively put up during the trial, but the same cannot be construed to be a good ground for quashing the proceeding keeping in view the said defence likely to be raised during the trial by the revisionist.
Upon consideration of the prima facie materials already revealed in the copy of case diary, it cannot be concluded with all certainty that instant proceeding is a purposive, frivolous, vexatious and mala fide, justifying an order encouraging the proposed quashment.
It was given to understand in course of hearing that the copy of the materials already collected during investigation could not be made available by supplying the same to revisionist. The revisionist/petitioner, therefore, is not remediless at the moment, because enough opportunities are left open before him to raise the issue, now raise at the time of conducting the trial with much more convenient manner.
Thus, the revisional application fails being without any merits. Liberty is given to the petitioner to raise points, now raised, at the time of trial. The learned Trial Judge shall address the issues, if any raised by the revisionist in accordance with law, giving sufficient opportunity of hearing to either of the parties to this case.
Learned Court below is directed to consider the applicability of section of the offences, complained of, at the time of consideration of charge against the respective accused persons involved in this case in the context with the materials already collected during the course of investigation.
With this observation and direction, the revisional application stands disposed of.
Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.
(Subhasis Dasgupta, J.)