Krishna Kanta Dey & Anr. vs State Of West Bengal & Anr.

CHAITALI CHATTERJEE DAS, J.:-

The present petition is filed by the petitioners being the parents in law of the Opposite Party no. 2 for quashing of a complaint lodged against them by their daughter-in-law. The petitioner no.1 is the owner of premises of G +1 story building, standing up on three cottahs of land at Kalyani. On the strength of a complaint lodged against the present petitioners by the opposite party no.2 under Section 498A read with Section 34 of the Indian Penal Code,1860 ,Kalyani Police Station vide FIR no. 575/2003 has been initiated, and the petitioners had to surrender before the learned Court and obtained bail on 12.9.2023. The instant petition has been filed seeking quashing of the said proceedings pending before the learned Court of Additional Chief Judicial Magistrate, Sub-Divisional Court, Kalyani.

In the month of December 2008, Opposite Party no. 2 got married with the son of the petitioners, according to Hindu rights and customs and after solemnisation of such marriage the Opposite Party no. 2 behaved cruelly and in an indifferent manner while residing at the same premises of the petitioners. The dispute and differences escalated from 2010 when Opposite Party no. 2 and her husband moved out of the said premises and started residing in a separate accommodation. Later on the petitioners came to know about a criminal complaint lodged against them under section 498A/406 of the Indian Penal Code registered at the behest of the Opposite Party no.2. The petitioners preferred an application under the provisions of 438 of the Code of Criminal Procedure, 1973 and were enlarged on bail by order dated June 25, 2012. The petitioners also prayed for quashing of the said proceeding under section 482 of the Code of Criminal Procedure which was disposed of by an order dated October 11, 2018 since a compromise effected between the parties and the proceeding was quashed.

The present petitioners thereafter again threatened and coerced of transferring his sweet and snacks business and the shop room as well as the property in favour of their son and daughter-in-law and being constantly humiliated in front of their neighbours and workers, they brought it to the notice of jurisdictional Police Station by lodging complaints dated September 16, 2014, October 13, 2014 and December 3, 2014 respectively. On the basis of the aforementioned complaints as lodged by the petitioners as well as the neighbours the criminal cases being Kalyani P.S. case no. 570 of 2014 dated November 9, 2014, under Section 341/323/379/504/506 of Indian penal Code, 1860 and Kalyani PS case no. 394 of 2015 dated June 20, 2015, under Section 341/323/379 of IPC were initiated by the learned Additional Chief Judicial Magistrate, Kalyani against the opposite party no. 2 and her husband. Those criminal cases were also dropped on the basis of a compromise reached by between the parties.

The further case revealed that the son of the present petitioners despite having sufficient earning, did not pay any maintenance to the present petitioners and because of the continuous dispute and harassment the petitioner no. 1 had to close down the showroom and discontinued his business from August, 2022. In the month of December 15, 2021, and May 17, 2022, the petitioners were constrained to file applications before the Chairman, Senior Citizens, Maintenance Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the Sub-Divisional Officer, Kalyani, Nadia praying for removal of their son and daughter-in-law from the premises.

The petitioners were also constrained to file appropriate complaints dated January 31, 2022 and May 17, 2022 before the appropriate authority, seeking their assistance to evict their son and daughter-in- law, and a proceeding to that extent was also started under the said Act. The summons dated May 25, 2022 was issued in respect of the proceeding against their son and daughter-in-law and on June 2, 2022 a reasoned order was passed by the SDO in presence of the petitioners and their son and daughter-in-law whereby they were directed to vacate the premises. A prayer was made on their behalf to allow them to stay for few months since the opposite party no. 2 was in her family away and it was recorded in the order. On November 4, 2022, the opposite party no. 2 gave birth to a male child, and after a few months, the petitioners reminded the stipulations contained in the order dated June 2, 2022 and requested them to vacate the said premises.

However, they did not pay any heed to the same and finding no alternative, the petitioners had to move an application praying for implementation of the said order which was allowed on July 31, 2023 and directed the jurisdictional police to take appropriate steps. Since the jurisdictional police failed to take any action vide an order dated September 19, 2023 directed the jurisdictional police to evict the Opposite Party no. 2 and her husband from the premises of the petitioner. By a letter dated September 20, 2023, they were called by the jurisdictional police to take appropriate steps for removing them. Shortly thereafter, the instant complaint was lodged against the petitioners by the Opposite Party no 2. The petitioners had to surrender before the learned Court and obtained bail. In addition to that, the petitioner also found that their son has filed a Title Suit being TS no. 193 of 2023, the summons of which was served upon them where prayer has been made for declaration that he is a tenant under the petitioner no.1 in respect of the said premises, but the learned Trial Court by an order dated September 29, 2023, refused to grant interim relief in his favour on the ground that he failed to produce any document in support of his contention. In such circumstances, the instant revisional application has been filed for intervention by this court.

The learned Senior Advocate representing the petitioner argued that it is a clear case where this court should exercise the power under Section 482 of Code of Criminal Procedure since it is evident from the fact and circumstances of the case that the complaint has been lodged with absolutely mala fide intention, and in order to save themselves from the order passed by the tribunal, where on their own assurance, they agreed to vacate the premises of their father. It is further argued that the chequered history of the case demonstrate that a continuous dispute between the parties were very much in existence which resulted filing of complaints by the present petitioners against the daughter-in-law. The specific contention of the petitioner is that the son and daughter-in-law are only interested to the showroom as well as the premises depriving their other married sisters. The petitioners had two daughters and one son and one of the daughter was differently able has expired since long. Since when the son and daughter-in-law are residing in their premises at the ground floor, the married daughter and her husband are not allowed to enter into the premises and causing severe mental distress to the present petitioners who are deprived of having the company of their daughter.

The complaint being false and concocted and devoid of any instances of torture as alleged therein to attract Section 498A of the Indian penal code even if the entire complaint is accepted. It is further contended that during pendency of this proceeding, the charge sheet has been submitted on September 21, 2023 against the present petitioners where beside the daughter-in-law and her husband and the police personnel, only two witnesses have been cited. The Investigating officer while submitting the charge sheet failed to assign any reason as to how the charge 498A/34IPC were established on the basis of the materials collected. In this regard put reliance on the decision of Sharif Ahmed and Another versus State of Uttar Pradesh and Another where it was held that “the Investigating Officer must make clear and complete entries of all columns in the charge-sheet so that the court can clearly understand which crime has been committed by which accused and what is the material evidence available on the file. Statements under section 161 of the Code and related documents have to be enclosed with the list of witnesses. The role played by the accused in the crime should be separately and clearly mentioned in the charge-sheet, for each of the accused person”. Further relied upon a decision of Ria Das vs State of West Bengal and Anr. passed by this Court in order to show that the inherent power under Section 482 of the Code of Criminal Procedure can be exercised while quashing of a criminal proceedings, essentially on the ground that such proceedings are manifest, frivolous, or vexatious or instituted with the ulterior motive for wreaking vengeance.

Per Contra the learned Counsel representing the opposite party no.2 opposes the contention of the petitioners mostly on the ground that a complaint under Section 498A was lodged against them by the Opposite Party no.2 which ended in compromise. After that they again started residing in the house and it is the petitioner no. 1 being the father of the husband of Opposite Party no. 2 inducted them as a tenant at a monthly tenant. It is further argued that on the basis of the complaint, the investigation started and on completion of investigation, the charge sheet was submitted, which prima facie establishes the charge against the petitioners. It is further submitted that it is the constant view of the Hon’ble Supreme Court that power of quashing of a complaint should be exercised sparingly with circumspection, and while exercising this power, the Court must believe the allegations in the complaint to be true and correct. It is repeatedly held that save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the Judicial process should not interfere at the stage of investigation of offences. It is further argued that the revisional application was filed for quashing of the FIR and the parameters for exercising the inherent power of this court is different when the charge sheet has been submitted. In this case relied upon Punit Beriwala vs State of NCT of Delhi and Others . It is further contended that in the decision of State of Odisha versus Pratima Mohanty and Others it was held that as per settled proposition of law while examining an FIR/complaint quashing of which is sought, the Court cannot embark upon any enquiry as to reliability or genuineness of the allegations made in the FIR. This power should be an exception rather than any ordinary rule. The Court cannot conduct mini trial and cannot go into the merits of the allegations. It casts an onerous and more diligent duty on the Court.

Therefore, when it is apparent that there was a history of lodging complaint, alleging similar allegation against the petitioners by the Opposite Party no. 2, which ended only after a compromise was affected the subsequent allegation against them by the same complainant must be weighed specially when on completion of investigation the charge sheet has been submitted and in the event, the proceeding is quashed at the threshold, the de facto complainant will be highly prejudiced. Hence, prayed for dismissal of this revisional application.

The learned advocate representing state, submit the case diary and argued that there are prima facie materials as collected by the investigating authority during the court of investigation has established the charges against the petitioners, and for that reason they must face the trial.Hence prayed for dismissal of the revisional application .

Heard the submissions. Perused the materials on record which prima facie demonstrates a continuous and persistent family feud between the present petitioners and their son and daughter- in-law since after the marriage in the year 2008. The petitioners are the parents in law of the defacto complainant. The record further reveals that previous complaint was lodged by the daughter-in-law in the year 2012, under section 498A/406 of the Indian Penal Code, 1860 which went up to filing of application under Section 482 of the Code by the petitioners before the this High Court and it was disposed of in the year 2018 on the basis of the compromise, arrived at between the parties and the proceeding was quashed. Pursuant to the case of the petitioners several complaints were lodged on behalf of the petitioners, since thereafter as they were continuously threatened and humiliated and assaulted by their son and daughter-in-law, compiling the petitioner no. 1 to be admitted in hospital at Kalyani. The petitioners have annexed the complaint lodged by them against their son and daughter-in-law which were registered and proceedings were initiated by the learned Additional Chief Judicial Magistrate, Kalyani against their son and daughter-in-law, but those cases were also dropped on the basis of compromise reached between the parties and the petitioners made the prayer for not to proceed anymore against their son as their son and his wife are doing well and behaving well and residing peacefully and properly.

Admittedly, the property belongs to the petitioner and the husband of the Opposite Party no.2 has filed a Title Suit against them, claiming to be a tenant in respect of the portion occupied by them but failed to have any interim order due to lack of materials. The instant complaint was lodged on September 8, 2023, where reference is made in respect of the previous complaint, but nowhere in the complaint can anything be found regarding the proceeding filed by the petitioners under Act of 2007 and or the order passed by the SDO, where in presence of both the parties, on the prayer made by the Opposite Party no.2 and her husband, they were allowed to to reside till the birth of the child since Opposite Party no.2 was in her family way. Curiously the charge sheet as submitted in connection with this complaint, also do not mention about the previous complaints lodged by the petitioners against their son and daughter-in-law which ended in compromise or about the order passed by SDO directing the jurisdictional police qua the Kalyani Police Station to implement the order of eviction since they did not comply. This Court fully agrees with the submission advanced by the learned counsel of the Opposite Party no.2 regarding the parameters to be followed by this court while exercising power under Section 482 of the Code of Criminal Procedure, as those are the settled proposition of law. At the same time, this court cannot be oblivious of the observations of the Hon’ble Court that the court must not refrain from exercising the power under Section 482, where there is gross miscarriage of justice or in order to secure the ends of justice.

In the decision of Suman Mishra vs The State Of Uttar Pradesh the Hon’ble Supreme Court while considering several judicial pronouncements also took note of the decision of Iqbal alias Bala and Others vs State of Uttar Pradesh and Others where it was held;

It was further held that in frivolous or vexatious proceeding, the court should not restrict itself only to the stage of the case what is empowered to take into the overall circumstances leading to the initiation/registration of the case, as well as the materials collected in course of investigation. In addition, it was held that where “multiple FIR have been registered over the period of time , it is in the background of such circumstances, the registration of multiple FIR importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged”.

Fact remains when this revisional application was filed, the prayer was made for quashing the complaint. The charge sheet as can be found from the case diary is dated September 21, 2023, when the instant revisional application was affirmed on December, 2023. It is submitted before this Court on behalf of the petitioners that they were not aware about filing of charge sheet since it was not taken cognizance by the learned Magistrate. They came to learn about the complaint when receive the notice under Section 41(A) of Cr.P.C and voluntarily surrendered before the concerned Court and prayed for bail on September 12, 2023. They have not yet received the copies of the charge sheet or other materials in compliance of 207 of the Code of Criminal Procedure and hence could not produce the same before the Court.

The case Diary is placed before the Court does not reflect that the cognizance was taken by the concerned court after submission of charge sheet. Be that as it may, the case diary reveals that the charge sheet has been submitted and has been placed before this court. Therefore even without going through charge sheet, this could therefore put reliance on the complaint as lodged by the Opposite Party no.2 in order to ascertain whether it discloses any prima facie offence as alleged or not. This Court also cannot remain oblivious to the surrounding circumstances emerging from the materials placed before it. It appears that the petitioners, who are the parents in law of the Opposite Party no. 2, had earlier lodged a complaint against her, which was not subsequently proceeded with. Likewise, the complaint lodged by the Opposite Party no.2 against the petitioners in the year 2012, ultimately came to an end on the basis of a compromise. The history of the dispute placed before this Court further demonstrates that the petitioner had initiated proceedings for maintenance and eviction before the Sub-Divisional Officer under the Maintenance and Welfare of Parents, Senior Citizens Act, 2007. In the said proceeding, an order of eviction was passed, and despite an assurance to vacate the press, the son and daughter-in-law did not comply with the same. The said order was thereafter directed to be implemented. It was only after the police informed the concerned persons about the order and called upon them to vacate the premises, the instant complaint came to be lodged.

The sequence of events, Prima facie gives rise to a reasonable inference that the present complaint was instituted as a counterblast to the order of eviction and with the view to protect protecting the opposite party no. 2 and her husband from the consequence of such order. The allegation of the petitioners that there was an attempt to appropriate or takeover the property also find some corroboration from the subsequence, civil litigation, namely, the title suit instituted by the son against his father, wearing the son had claimed the status of a tenant in respect of the very premises belonging to his father. In the circumstances, this court finds no justification in vomiting, the criminal proceeding to continue merely on the ground that the complaint had earlier been lodged by the opposite party no.2 in the year 2012, which ultimately ended in a compromise. The mere existence of such an earlier complaint, particularly in the backdrop of the subsequent developments and the absence of specific allegations in the present complaint, by itself, furnish sufficient ground for allowing the present proceeding to continue, notwithstanding the subsequent submission of the charge sheet.

The complaint is devoid of any details of date of torture inflicted on her and the manner in which both the petitioners subjected her to such torture or the nature of torture inflicted on her. Nothing has come out regarding the incapability of the husband to maintain her and her children nor any proceedings are pending against the husband.

The instant complaint has been lodged after the jurisdictional police called them for the purpose of eviction, which glaringly manifest the mala fide intention of the complainant to save their skin from their verbal assurance given before the Tribunal constituted under Senior Citizens Act 2007 as promulgated with a view to provide a speedy and inexpensive remedy to the Senior citizen. The Tribunal constituted under Section 7, had the power to conduct summary procedure for enquiry with all powers of Civil Court.

In a recent decision of the Hon’ble Supreme Court in Kahkashan Kausar @ Sonam vs The State Of Bihar the issue was whether allegations made against the in-laws in the nature of general omnibus, allegation and therefore liable to be quashed. It was observed therein that- “incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives.”

The Hon’ble Supreme Court took note of the decision of several judicial pronouncement, including Preeti Gupta and another versus State of Jharkhand and another , Geeta Mehrotra, and Another versus State of UP and another and held in paragraph 18,;

In the case of Ghanshyam Soni versus state (government of NCT of Delhi) , the complaint was lodged under Section 498/406 and 34 IPC against the in-laws and husband. it was held there in paragraph 11;

Therefore, to sum up on consideration of the allegations made in the written complaint, this Court find that the same failed to disclose the necessary factual foundation or the essential ingredients so as to attract the offence punishable under Section 498A of the Indian Penal Code. The allegations against the present petitioners are general and omnibus in nature. No specific date, time or place of occurrence has been mentioned. There is no specific allegation also as to the nature of the alleged cruelty or the torture, nor has any particular overt act been attributed to either of the petitioners permitting such proceedings to continue on the basis of a complaint of this nature, would, in the considered view of this court, amount to an abuse of the process of law and hence is liable to be quashed.

Hence, this criminal revisional application stands allowed. The FIR /complaint filed by the Opposite Party no.1 against the petitioners along with the charge sheet and the proceeding pending before the learned ACJM, Nadia stands quashed qua the petitioners.

They are discharged from their respective bail bond forthwith.

All other connected application, if any, hereby stand disposed of.

Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities.