Calcutta High Court (Appellete Side)
Smt. Aparajita Bhowmick Nee … vs State Of W.B on 10 November, 2016
CRR 3067 of 2013
CRR 3065 of 2013
Smt. Aparajita Bhowmick nee Bandopadhyay
State of W.B.
Mr. Tapas Kr. Bhattacharya
Mr. Debabrata Chakraborty
…………. for the petitionerMrs. Monisha Dey Sarkar
Mrs. Pronoti Goswami
…………. for respondent nos.
2 (in CRR 3067/2013) and 3 (in CRR 3065/2013) Mrs. Debjani Sahu …………. for the State As the factual aspects and the circumstances of the case are same and similar in CRR 3067/2013 and CRR 3065/2013 respectively, both the criminal revisional applications will be covered by a single judgment.
Two applications have been filed under Section 401 read with Section 482 of the Code of Criminal Procedure by the petitioner for the purpose of setting aside/quash the order of the learned Additional District & Sessions Judge, Fast Track Court, Alipore, South 24 Paraganas which arose from the order dated 2.9.2009 passed by the learned Judicial Magistrate, 2nd Court, Alipore, South 24 Paraganas.
The grievance of the present petitioner is such that although the charge- sheet has been submitted against the husband as well as the matrimonial inmates i.e. the mother-in-law and the sister-in-law, yet the learned Judicial Magistrate has discharged them from the arena of the case under a wrong conception. It is also specific grievance of the present petitioner that the learned first appellate court has also lost sight of that aspect of the matter and without adhering to the established principles of law has put the seal of approval in the order of the learned Judicial Magistrate, 2nd Court, Alipore, South 24 Paraganas.
Feeling aggrieved and being dissatisfied with the same the petitioner has come before this court with the following grounds that both the learned courts below could not appreciate the position of law and the factual aspects of the matter in its proper perspectives and that the story of the alleged torture and entrustment of property upon the opposite party has not been properly considered by the learned courts below.
At the time of hearing argument of the learned counsel appearing on behalf of the petitioner, he submitted that there was demand of dowry and since that was not accepted by the present petitioner, she was subjected to physical and mental cruelty. Initially, they had been living in Calcutta, afterwards they went to Hyderabad where the husband had been working. The conjugal life became strained and as a result of which she had to come back to her matrimonial home. On being threatened by the husband and his allies, the wife/present petitioner herself alongwith her parents had to shift their house at Tollygunge. When the stri- dhan articles were not delivered to her, a G.D. was lodged at Behala P.S. by the present petitioner. Thereafter, the FIR was lodged under Section 156(3) of the Code of Criminal Procedure.
According to the learned counsel appearing on behalf of the petitioner, the orders of both the courts below are wholly erroneous and those are to be set aside.
On the other hand, the learned counsel appearing on behalf of the opposite party no. 2 (in CRR No. 3067/2013) and opposite party no. 3 (in CRR 3065/2013) submitted that the allegations are absolutely false. According to him the conjugal life of the spouse became strained due to some other reasons than that of demand of dowry.
Since the present petitioner was not happy with the sexual act of the husband, the dispute cropped up between them. The husband-opposite party of the present petitioner has filed a divorce suit against her and after a considerable period of time, the present petitioner has filed this case only to throw dust in the eyes of the court.
The learned counsel appearing on behalf of the opposite party no. 2 (in CRR No. 3067/2013) and opposite party no. 3 (in CRR 3065/2013) has further contended that there is no story of alleged torture which comes within the purview of Explanation of clause (1) and (2) of 498A IPC. She has also pointed out the statement recorded under Section 161 of the Code of Criminal Procedure. According to her, since no evidence is made out against the opposite party no. 2 (in CRR No. 3067/2013) and opposite party no. 3 (in CRR 3065/2013), the petition under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the present petitioner is not at all maintainable.
The learned counsel for the State has also echoed the same submission made by the learned counsel appearing on behalf of the opposite party no. 2 (in CRR No. 3067/2013) and opposite party no. 3 (in CRR 3065/2013) respectively.
Section 498A IPC speaks as follows:
“S. 498A – 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. Explanation – For the purpose of this Section, “cruelty” means –
(a) Any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
From the Explanation clause (1) and (2) of Section 498A IPC, it does not transpire that there was any wilful conduct of such a nature which has driven the present petitioner to commit suicide or there is any grave injury to his person or limb. There was also no ingredient of harassment which was of such a nature that it was intended to meet some illegal demand or to deliver any valuable security.
On perusal of the statement recorded under Section 161 of the Code of Criminal Procedure as well as on the basis of the petition of complaint, it does not transpire that there is any such ingredient of Section 498A IPC in respect of the present petitioner/ opposite party no. 2 (in CRR No. 3067/2013) and opposite party no. 3 (in CRR 3065/2013).
It is perhaps needless to say that sometimes out of grudge or something else whole family of the accused has been arrayed in the criminal trial. The intention of the legislature was to protect the woman from the rigour of dowry of demand but that could not be used as an armoury.
There are catena of decisions in this regard from the Hon’ble Apex Court as well as of different High Courts which I do not wish to mention to make it a hefty one. Since the basic ingredient of Section 498A IPC is missing, I am of the view that there is no mistake committed either by the learned Judicial Magistrate, 2nd Court, Alipore, South 24 Paraganas or the learned Additional District & Sessions Judge, Fast Track Court, Alipore, South 24 Paraganas over this decision.
Accordingly, the two applications are devoid of merit and liable for rejection.
I find that there is enough material in respect of husband/opposite party and finding of this revisional application in respect of the mother-in-law and sister- in-law shall not be applied in case of husband of the complainant.
Hence, the both the criminal revisional applications stand dismissed. Let a copy of this order be sent down to the learned court below for information and necessary action.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Siddhartha Chattopadhyay, J.)