Sri Sushil Kumar Mohanka & Ors vs The State Of West Bengal & Anr

For the Petitioners : Mr. Sandipan Ganguly, Sr. Adv., Mr. Krishnendu Bhattacharya, Mr. Avishek Guha, Mr. Akansha Chopra.

For the State : Mr. Arijit Ganguly, Ms. Debjani Sahu.

For the Opposite Party no. 2 : None.

Heard on : 04.01.2023

Judgment on : 24.01.2023 2

Shampa Dutt (Paul), J.:

The present revisional application has been preferred praying for

quashing of the impugned proceeding being G.R. Case NO. 4312/2018

dated 11.10.2018 and Charge Sheet No. 10/2019 dated 15.01.2019

under Section 498A of the Indian Penal Code presently pending before

Learned Chief Judicial Magistrate at Barasat, 24 Parganas North and all

orders passed therein.

Petitioners no. 1 and 2 are the father-in-law and mother-in-law,

aged about 74 years and 69 years and the petitioner no. 3 is the

husband of the complainant-wife.

The petitioner's case in short is that the marriage between the

complaint/opposite party and the Petitioner No. 3 took place on 2nd

July, 2006. From the very first day of her stay the defacto complainant

used to keep all gifts received by the petitioners and other articles and

ornaments of value belonging to the petitioner in an almirahs under

lock and key. The Keys were always kept in her possession.

The petitioners allowed her to have unrestricted access to all

their documents of Bank Accounts, ATM cards with pin number, Deed

of house and ornaments kept in Almirahs allowing her free access.

The Complainant continually since her marriage treated the

petitioners with utmost cruelty.

3

The petitioner no. 3 and the wife/complainant were blessed with

a son who is now 11 years old and the wife later gave birth to another

son, (out of wedlock), aged 6 years old now. Inspite of being blessed with

a child, the complainant continued her misbehavior with the petitioners

and raised petty issues on a daily basis causing mental strain and

unrest within the family. However for the sake of their son's life,

petitioners overlooked such acts and conduct and treated the

complainant as their own daughter with utmost care and affection with

a ray of hope that she shall understand their love and trust for her and

start to respect them.

In the year 2016, she expressed her desire to open a Montessori

School with an intention to achieve a successful professional career and

the petitioners willingly encouraged and supported her mentally as well

as financially whereby a substantial sum of money was invested in

opening of such Montessori School by the petitioners for their daughter

in law by obtaining a franchise of Kangaroo kids and also purchased a

property at uniworld City Cascades, Tower 3, Flat No. 002, Kolkata -

700156, Rajarhat for running of such school by availing financial

assistance from a Bank wherein she was inducted as one of the co-

owner of such property.

The Petitioners stood by her at all time so as to support her zeal

of opening of such school.

4

That due to the neglectful behavior of the complainant, the

petitioners used to take care of the grandsons for their daily

requirements such as to look after their studies, feeding them,

nurturing them and fulfilled all requirements which children generally

seek from their mother.

Though petitioners tried really hard to make her understand and

made amiable efforts to reconcile any differences, all such efforts went

in vain as on 29th September, 2018 at about 10.30 am, she left

petitioner's house along with the children without intimating petitioners

and went to her paternal house.

On October1, 2018 at around 6 pm, she accompanied by her

elder brother Shri Manoj Saraf case to petitioner's house and started

shouting at the top of their voices and threatened the petitioners that

they have connection with some influential people and If they do not

transfer all properties in her name, petitioners would have to face severe

consequences.

The petitioners on the 13th day of October 2018 went to Newtown

police station to lodge a written complaint against the complainant

(Ishita Mohanka) and came to learn that already the said Ishita

Mohanka had implicated the petitioners in the instant false and

frivolous criminal case being Newtown Police Station Case no.

437/2018 dated 11.10.2018 under Section 498A of the Indian Penal 5

Code presently pending before the Learned Additional Chief Judicial

Magistrate at Bidhannagar, 24 Parganas (North).

The petitioners submit that the entire alleged incident is wholly

false, frivolous, conjured and was lodged to put the petitioners under

duress.

By a letter dated 28th October 2018 the complainant / wife

had requested the investigating agency not to proceed with the

case as she wanted to settle the dispute.

Upon completion of a purported and biased investigation, the

police authority of Newtown police station submitted Charge Sheet on

15th January 2019 being Charge Sheet No. 10/2019 under Section

498A of the Indian Penal Code against the petitioners without

application of reasonable mind and/or considering the facts of the case

in their correct perspective.

It is further submitted by the petitioners that such erroneous

and malicious prosecution if allowed to continue will amount to an

abuse of the process of the court law and is so oppressive and vexatious

that this Hon'ble Court must intervene and should prevent such abuse

otherwise the petitioners will suffer irreparable damages.

The petitioners state and submit that the said petition of

complainant read with the statement of the witnesses in comparison 6

with the legal backdrop, the instant proceeding is not maintainable

either facts or in law in as much as no prima facie case has been made

out there in disclosing any of the ingredients necessary to attract the

provisions of Section 498A of the Indian Penal Code and the proceeding

should be quashed in limini.

The petitioners categorically state and submit that the written

Complaint/Application subsequently treated as FIR do not cast any

specific act and aspersion of cruelty as postulated and /or defined by

the Section 498A of Indian Penal Code in any manner whatsoever.

Thus, the cognizance taken by Learned Magistrate is devoid of any

merit and substance.

That the written complaint does not make out any acts, which

could construe any offence, let alone an offence under Section 498A, in

the eye of law in respect of the alleged acts done by the petitioners and

hence such proceeding in regard to the petitioners is nothing but a

misnomer and a sheer abuse of the process of law if allowed to continue

and as such in the interest of justice, the proceeding are liable to be

quashed.

Hence the revision.

Mr. Sandipan Ganguly, Learned Counsel for the petitioners

has submitted that the purported Charge Sheet contains statement of

Manoj Saraf - brother of the opposite party no. 2 and statement of 7

Bhagwati Saraf - father of the defacto complainant- wife. These three

statements altogether and in consonance do not attribute to any of the

ingredients of Section 498A of the Indian Penal Code in any manner

whatsoever;

The blatant allegations spelt out by de-facto complainant along

with two bald statements recorded under Section 161 of the Code of

Criminal Procedure simply lack specific complaint of ay cognizable

offence all together.

That the impugned proceeding is utterly bad in law and the

same is liable to be quashed imposing exemplary costs upon the

complainant for filing such malicious proceeding.

Mr. Ganguly has thus prayed for quashing of the said

proceedings.

In spite of due service the opposite party no. 2 has failed to

appear.

Mr. Arijit Ganguly Learned Counsel for the state has placed

the case diary.

In the present case, considering the submissions made by the

learned counsels for the petitioners and the State and on perusal of the

materials on record, including the case diary it is found that the case

diary contains only two statements under section 161 of the Cr.P.C. 8

other than the statement of the complainant. The statements are of the

defacto complainant, her brother and her father.

Admitted facts in this case are:-

1. The marriage between the petitioner no. 3 and the opposite

party no. 2 complainant took place in the year 2006.

2. The complaint against the petitioners has been made by the

complainant/wife on 11th October, 2018.

3. There is an initial complaint and on the same day another

complaint (supplementary) in continuation to the first

complaint was also filed.

4. An important piece of document in the Case diary is a letter

dated 28.10.2018 written by the complainant, addressed

to the inspector-in-charge, New Town Police Station where in

she has categorically stated that she and her family want

to put in an attempt to resolve the matter between her

and her husband and in laws (the petitioners herein).

5. The change of mind and thoughts of wanting to resolve the

dispute within 17 days of filing the complaint gives an

impression that the complaint had been filed in the heat of

the moment. Even the first complaint is 16 years after

marriage.

9 6. The complainant specifically stated in the said request letter

that the police should not proceed with the said

investigation for some time and that she will update the

police as to how the matter proceeds.

7. But no further update was given by the complainant to the

police, regarding either any settlement or any further

development.

Finally on 15.01.2019 the police on the basis of only the

complaint and the two statements recorded on the date of complaint

on 11.10.2018 as discussed above submitted the charge sheet.

There is absolutely no development in the investigation

between 11.10.2018 and 15.01.2019.

There is also absolutely no other material in the case diary

against the petitioners for the offence alleged. The allegations are

general in nature.

There is also no allegations under Section 406 IPC, which

supports the case of the petitioners that the complainant and her

brother have taken away all her articles from their house.

In Kahkashan Kausar @ Sonam & Ors. vs. State of Bihar &

Ors., 2022 LIveLaw (SC) 141, the Supreme Court held as follows:- 10

"Issue Involved

11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed ?

12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention 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.

13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of U.P. & Anr; (2018) 10 SCC 472, has observed:-

"14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such 11

complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement."

14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr; (2014) 8 SCC 273, it was also observed:-

"4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grandfathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested."

15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr; (2010) 7 SCC 667, it has also been observed:-

"32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that 12

exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.

36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in 13

cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."

16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr; (2012) 10 SCC 741, it was observed:-

"21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

"there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." The view taken by the judges in this matter was that the courts would not encourage such disputes."

17. Recently, in K. Subba Rao v. The State of Telangana, (2018) 14 SCC 452 it was also observed that:-

14

"6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out."

18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."

And finally the court held:-

"22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged."

15 In Ramesh Chandra Gupta vs. State of Uttar Pradesh and

Ors., 2022 LiveLaw (SC) 993, Criminal Appeal No(s). 2060 of 2022

(Arising out of SLP (Crl.) No(s). 39 of 2022), the Supreme Court held:-

"15. This Court has an occasion to consider the ambit and scope of the power of the High Court under Section 482 CrPC for quashing of criminal proceedings in Vineet Kumar and Others vs. State of Uttar Pradesh and Another, (2017) 13 SCC 369 decided on 31st March, 2017. It may be useful to refer to paras 22, 23 and 41 of the above judgment where the following was stated:

"22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 CrPC vested in the High Court. Section 482 CrPC saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

23. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 CrPC and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 CrPC. A three-Judge Bench of this Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated :

'7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary 16

public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.'

41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fides and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 which is to the following effect :

'102. (7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.' Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court 17

has noted the judgment of State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."

16. The exposition of law on the subject relating to the exercise of the extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 CrPC are well settled and to the possible extent, this Court has defined sufficiently channelized guidelines, to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. This Court has held in para 102 in State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp. (1) 335 as under :

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 18 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

17. The principles culled out by this Court have consistently been followed in the recent judgment of this Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, 2021 SCC Online SC 315."

In the instant case, charge-sheet has been filed and

cognizance has been taken by the Magistrate concerned; the committal 19

proceedings have not yet taken place. Thereafter the trial shall

commence.

The Supreme Court in State of Maharastra vs. Salman Salim

Khan (2004) 1 SCC-525, also held:-

"12............In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial......"

The marriage in the present case took place in the year 2009.

The complaint has been lodged in 2016 after seven years of marriage.

The allegations in the written complaint are general in nature

stating that she was tortured since the day after her marriage.

All these allegations seem without any basis and with the only

intention to harass the petitioners.

These facts and the materials in the case diary and the charge

sheet there in do not make out a prima facie case of any cognizable

offence against the accused/petitioners and there is no materials for

proceeding against the accused/petitioners towards trial and this is a fit

case where the inherent power of the court should be exercised. 20

The Charge Sheet and the evidence placed in support thereof,

form the base to take or refuse to take cognizance by the competent

court.

The ultimate test therefore, is whether the allegations have any

substance (Prakash Singh Badal Vs State of Punjab, AIR 2007 SC

1274).

In the Present case there is no substance in the allegations and

no material exists to prima facie make out the complicity of the

applicant in a cognizable offence, as such the proceedings in this case

should be quashed.

Accordingly, criminal revision being CRR 3659 of 2019 is

allowed.

The proceedings in G.R. Case No. 4312 of 2018 arising out of

Newtown Police Station Case No. 437 of 2018 dated 11.10.2018 under

Section 498A of the Indian Penal Code and charge Sheet no. 10/2019

dated 15.01.2019 under Section 498A of the Indian Penal Code,

pending before the learned Chief Judicial Magistrate at Barasat, 24

Parganas, North, is hereby quashed.

No order as to costs.

All connected Application stand disposed of.

Interim order if any stands vacated.

21

Copy of this judgment be sent to the learned Trial Court

forthwith for necessary compliance.

Urgent Photostat Certified copy of this Judgment, if applied for,

be supplied expeditiously after complying with all necessary legal

formalities.

(Shampa Dutt (Paul), J.)