Calcutta High Court (Appellete Side)
Soumitra Sen vs The State Of West Bengal & Anr on 6 September, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1 06.09.2013(31)
(ap) C.R.R. No. 767 of 2013 Soumitra Sen
- Versus -
The State of West Bengal & Anr.
Re: An application under Section 482 of the Code of Criminal Procedure filed on 08.03.2013 Mr. Abhra Mukherjee, Ms. Anita Kundu. ...For the Petitioner.
The petitioner has prayed for quashing of proceeding in BGR No.1465 of 2004 corresponding to Regent Park Police Station Case No.53 dated 06.04.2004 under Sections 498A/406 of the Indian Penal Code.
The allegations in the First Information Report is that marriage between the petitioner and opposite party no.2 solemnized on 29.01.1996 as per Hindu rites and customs. At the time of marriage jewellery and cash was given as dowry. After the marriage the couple stayed at Raipur, Indore and other places. From the said wedlock a female child was born at Indore on September 26, 1999.
The opposite party no.2 was subjected to cruelty and as a result she was compelled to register the instant case. Initially, charge‐sheet was filed against the petitioner and prayer for discharge was made in respect of his father, namely, Arun Kumar Sen.
The opposite party no.2 filed a naraji petition and prayed for further investigation which was turned down by the learned Magistrate. Such order was not disturbed by the Court in C.R.R. No.536 of 2005.
It has been pleaded in the application that the uncontroverted allegations do not disclose commission of any offence under Section 498A of the Indian Penal Code 1 2 and even if it does no part of the offence has been committed within the territorial jurisdiction of the learned Magistrate. It appears from the order dated 19.06.2012 passed by the learned Magistrate was fixed for framing of charge. On that day substance of accusation in respect of Sections 498A/406 of the Indian Penal Code was read out and explained to the accused person.
The learned counsel appearing for the petitioner submits that the procedure followed by the learned Magistrate was unwarranted in law. The offences are triable as a warrant case and the learned Magistrate could not have resorted to the procedure of reading out the substance of accusation to the accused persons instead of framing charges under Section 240 of the Code of Criminal Procedure, 1973.
I find much merit in such submission. Offence under Sections 498A/406 of the Indian Penal Code are warrant triable offences and charges must be framed under Section 240 of the Code of Criminal Procedure in respect of such offences. Resort to Section 251 of the Code of Criminal Procedure cannot be made, inasmuch as, such procedure relates to summons trial offences and not in respect of offences which are triable as warrant cases.
It is settled law that when a thing has to be done in a particular manner it must be done in that manner or not at all. That apart, undoubtedly the petitioner has suffered prejudice due to such illegal summary procedure being adopted by the trial Court for trial of graver offences.
For the aforesaid reasons, I allow the application and set aside the order dated 19.06.2012 and remand the matter to the learned Magistrate and direct him to proceed in the matter in accordance with law.
I further give liberty to the petitioner to agitate all other issues canvassed in this application before the learned Magistrate at the stage of framing of charge and in the event any prayer for discharge is made, the same shall also be considered in accordance with law.
2 3
The application is allowed to the aforesaid extent. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.
(Joymalya Bagchi, J.) 3 4 4