Subhas Chanda and Others vs Sarbjaya Sen (Chanda)

P.G. Agarwal, J.—This is an application u/s 482 Code of Criminal Procedure for quashing of a proceeding in Complaint Case No. C.R. 2816/94, u/s 323/324/498 A/406/342/34 IPC pending in the court of Judicial Magistrate, 1st Class, Lakhimpur at North Lakhimpur.

Heard Mr. Y.K. Phukan, learned Senior Advocate for the Petitioner and Shri B. Banerjee, learned Counsel for the Respondent.

The complainant opposite party, who is a school teacher, filed a complaint case. C.R. 2816/94 before the judicial Magistrate, 1st Class, North Lakhimpur against her husband, Shri Subhas Chanda, accused Petitioner No. 1, who is also a school teacher. The case in brief is that the complainant and the accused were married as per Hindu rites and out of the said wedlock a daughter was born to the complainant. It is alleged that both the accused and the complainant were serving at two different places and some dispute in their marital life arose. It is further alleged that the complainant was subjected to physical and mental torture, the complainant was forced to leave the shelter of her husband and she was threatened with dire consequences against demanding her Stridhan property. The learned trial Magistrate took cognizance of the offence and issued process against, as many as, four persons.

Feeling aggrieved, the Petitioner-accused preferred a criminal Motion No. 1(1)/95 before the learned Sessions Judge, Lakhimpur at North Lakhimpur for quashing and setting aside the order of taking cognizance on the ground of lack of territorial jurisdiction. The petition was allowed by the learned Sessions Judge. Thereafter the complainant filed a Criminal Revision No. 67/97 and this Court vide order dated 3.7.1997 set aside the order of the learned Sessions Judge. Thereafter the accused Petitioner has filed the present revision petition. The first submission of the learned Counsel for the Petitioner is that there is inordinante delay in lodging the FIR as the FIR was lodged on 3.12.1994, whereas the alleged incident took place on 3.8.1994 and 24.11.94. Referring to the various decisions of the Apex Court reported in Khedu Mohton and Others Vs. State of Bihar, and AIR 1982 SC 1216 it is submitted that the delay in lodging the FIR is fatal. The allegation against the Petitioner is for commission of offence u/s 498-A IPC and this being a continued type of offence for each and every incident of cruelty the complainant wife may not approach the Court for initiation of a criminal proceeding. In a recent decision in the case of Arun Vyas and Another Vs. Anita Vyas, the Apex Court has held that the offence u/s 498A is a continued type of offence and the question of delay would not be of very much relevance. It is further stated that in such case the provisions contained in Section 473 Code of Criminal Procedure should be applied liberally.

It is further submitted that on 3.8.1994, i.e. the date of alleged incident, the Petitioner and the complainant were at Guwahati and stayed in a Hotel together and as such there was no occasion of assault on that day. This may be considered as a plea of alibi which the accused will be at liberty to take up the establish during the court of trial. A complaint case cannot be thrown out on a plea of alibi taken in the revisional court. It is further stated that the first incident took place under the jurisdiction of Udalguri, whereas the second incident took place within the jurisdiction of Lakhimpur. In view of the decision of this Court in earlier revision, criminal Revision No. 67/97, the complainant is debarred from taking the plea of jurisdiction again.

The next submission on behalf of the Petitioners is that there is no prima facie case and in the absence of the same the complaint is liable to be quashed. Learned Counsel has placed reliance on a decision of the Apex Court in the case of Ashok Chaturvedi and Others Vs. Shitulh Chanchani and Another, wherein it was held that allowing the criminal proceeding to continue even where the allegation made in the complaint petition could not make out any offence, would be detrimental and amount to abuse of the process of the court and in such cases power u/s 482 Code of Criminal procedure should be exercised. It is further observed that the power u/s 482 Code of Criminal Procedure is to be exercised sparingly in the interest of justice. In the present case both the complainant and the accused are husband and wife and they are educated persons being school teachers. The wife has made specific allegation of physical and mental cruelty and also criminal breach of trust in respect of her Stridhan properties. It cannot be said that the complaint does not disclose any criminal offence so far the Petitioner Subhas Chanda is concerned. However, so far the accused Petitioners Nos. 2. 3 and 4 are concerned, who are brOrs. and sister of the accused No. 1, there is no specific allegation or averments regarding commission of any overt or covert act. There is a vague statement contained in one sentence that the accused person demanded money and assaulted her. This being a dispute between the husband and wife and on such vague allegation the other relations of her husband may not be dragged to the criminal court. Further this may put a hindrance on the chances of any amicable settlement between the parties.

Learned Counsel for the Respondent has submitted that the complaint petition disclose offence u/s 406 IPC also regarding misappropriation of Stridhan properties. Learned Counsel has placed reliance on a decision of the Apex Court reported in Rashmi Kumar (Smt) Vs. Mahesh Kumar Bhada,

In the facts and circumstances of the case, this revision petition is allowed so far the Petitioners No. 2 Shri Bikash Chanda, Petitioner No. 3 Smt. Mayarani (Chanda) Paul, Petitioner No. 4 Smt. Chayarani Chanda are concerned. The complaint petition so far it relates to the above mentioned Petitioners or the accused persons are concerned, the same stands quashed. The complaint proceeding shall, however, proceed against the Petitioner No. 1 Shri Subhas Chanda.

So far the issuance of process u/s 91 Code of Criminal Procedure in respect of the child Smt. Antara is concerned, the order is set aside in view of the fact that both the complainant and the accused persons have instituted civil suit or preferred civil application for custody of the child. Let the matter of custody of Smt. Antara be decided by a Civil Court. This revision stands disposed. Any interim order passed by this Court stands vacated. Send down the lower court records.