Calcutta High Court (Appellete Side)
Sri Subrata Mukherjee & Others vs The State Of West Bengal & Another on 15 June, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.R. 3869 of 2015
SRI SUBRATA MUKHERJEE & OTHERS
Vs.
THE STATE OF WEST BENGAL & ANOTHER
For the Petitioners : Mr. Sumanta Ganguly, Advocate
For the State : Mr. Pawan Kumar Gupta, Advocate
For the O. P. No.2 : Mr. Sandip Kr. Bhattacharya, Advocate,
Ms. Runa Bhattacharya, Advocate,
Mr. Joydip Chatterjee, Advocate,
Ms. Nabanita Bhadra, Advocate
Heard on : June 15, 2016
Judgement on : June 15, 2016
Joymalya Bagchi, J. :
Order dated 8.9.2015 passed by learned Metropolitan Magistrate, 15th Court, Calcutta in G.R. No. 106/2011 referring the case to the Court of Sessions under Section 323 Cr.P.C. has been assailed.
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The factual matrix of the case is to the effect that a first information report was registered by the opposite party no.2 / wife under Section 498A/313/406/506/34 of the Indian Penal Code and under Section 3/4 of the Dowry Prohibition Act.
It was alleged in the first information report that the opposite party no.2 / wife was married to the petitioner no.1 on 10.8.2009. Immediately after marriage she was subjected to mental and physical torture with regard to dowry. With passage of time such torture increased. In the meantime, opposite party no.2 became pregnant and it is alleged that on 25.10.2009 she was compelled to take certain medicines which resulted in partial abortion. On 13.11.2009 she was admitted to Kumartoly Seva Samity and subsequently to R. G. Kar Medical College and Hospital on 20.11.2009 for complete abortion and treatment.
Subsequently efforts were made for reconciliation of the matrimonial dispute which having failed, an application under Section 156(3) Cr.P.C. was filed before the learned Magistrate on 29.12.2010 resulting in the registration of the aforesaid first information report. Pursuant to investigation, charge sheet was filed in the instant case.
There is some confusion as to whether Section 313 IPC was excluded from the said charge sheet or not. Although there is reference to Section 313 IPC in one of the columns in the charge sheet, but in the concluding portion it appears 3 the investigating agency charged the petitioners with the offences under Sections 498A/406/34 of the Indian Penal Code only. Cognisance, however, was taken under Section 498A/406/313/34 of the Indian Penal Code and under Section 3 /4 of the Dowry Prohibition Act but subsequently charge was framed only under Sections 498A/406/34 of the Indian Penal Code. Thereafter application was preferred at the behest of the opposite party no.2 for adding Section 313 IPC and the investigating agency was called upon to file a report. Upon the report being filed, the learned Magistrate by impugned order added Section 313 IPC and referred the matter under Section 323 Cr.P.C. to the Court of Sessions.
Learned lawyer appearing for the petitioners submits that charge was framed under Section 498A/406/34 IPC after due application of mind and thereafter there has not been any change of circumstance to the prejudice of the petitioners so as to add Section 313 IPC to the array of charges.
On the other hand, Mr. Bhattacharya appearing for the opposite party no.2 submits that there is ample material on record to show that the opposite party no.2 was illegally administered medicine and thereupon there was incomplete abortion which required medical intervention by way of institutional treatment. Therefore, action of the Court cannot be said to be contrary to law.
Mr. Gupta, learned lawyer for the State has produced the case diary. 4 I have considered the materials in the light of the aforesaid submissions. I have also seen the materials collected in the case diary including the medical opinion dated 24.4.2013. A perusal of the medical report dated 24.4.2013 would show that no conclusive opinion as to forcible or induced abortion was given by the doctor. However, some statements have been recorded wherein the opposite party no.2 has alleged that medicines were administered to her. As of now there is no material on record to show what was the nature of the medicine administered and the impact thereof on the pregnancy of the opposite party no.2.
Hence, I am of the opinion that it was premature on the part of the learned Magistrate to come to a finding that there is sufficient material on record to add Section 313 IPC to the array of charges and refer the matter for trial before the Court of Sessions.
Accordingly, I set aside the impugned order dated 8.9.2015 passed by learned Metropolitan Magistrate, 15th Court, Calcutta.
I direct the learned Magistrate to proceed with the trial in accordance with law and in the event credible evidence comes on record with regard to allegation of forcible abortion, it would be open to the learned Magistrate to amend the charge and refer the matter under Section 323 Cr.P.C. to the Court of Sessions in accordance with law.
I make it clear that I have not made any observation as to the merit of the case of either of the parties and all issues are kept open to be decided by the learned Magistrate based on evidence adduced in the course of trial. 5
With the aforesaid observation, the revision petition is disposed of. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) Item No. 23 /AB