Bhaskar Mitra vs State of Uttar Pradesh

S.I. Jafri, J.—This application u/s 482 Code of Criminal Procedure has been preferred by applicant Bhaskar Mitra seeking the relief of quashing the proceedings in case No. 2428 of 1983 State v. Bhaskar Mitra under Sections 363, 366, 368/376 IPC pending in the Court of Chief Judicial Magistrate, Allahabad.

This petition was admitted by this Court on 12-10-1984 and further proceedings in the above case were stayed pending in the Court of Chief Judicial Magistrate, Allahabad.

I have heard Sri. Rishi Ram learned Counsel for the applicant. I have also heard the learned Counsel for the State and also Sri. D.N. Wali, learned Counsel for J.C. Mitra in extenso. I have also been taken through the relevant material on record.

It has been averred in the application that the applicant''s marriage took place with Km. Sonali Mitra, daughter of J.C. Mitra on 7-6-1983 before the Marriage Officer, Allahabad which fact is evident from the certificate annexed to the affidavit as Annexure. The facts of the case are that J.C. Mitra father of Sonali Mitra lodged a report at Police Station Colonelganj, Allahabad on 8-6-1983 at 6.10 p.m. to the effect that his daughter Sonali Mitra had gone to Allabpur on 7-6-1983 and she had not returned so far. He has been informed telephone by some one that his daughter Sonali Mitra had been enticed "the applicant. He bad also gone to the residence of the applicant Mitra was not found there. It was prayed in the aforesaid report that for his daughter may be undertaken as he apprehended that his daughte Mitra had been forcibly detained by the applicant.

On the basis of the aforesaid report of J.C. Mitra, a case Under Sections 363, 366, was registered against Bhaskar Mitra. Subsequently, a Habeas Corpus petition No. 7527 of 1983 was filed on behalf of Sonali Mitra against father Jiwan Chandra Mitra and others in the High Court through M.N. Mitra, father of the applicant alleging that she was detained unlawfully by her father J.C. Mitra against her wishes and it was prayed therein that she be set at liberty and as a consequence of which High Court issued a notice to J.C. Mitra for her production before the Court on 15-7-1983. However, Sonali Mitra appeared before the High Court on 15-7-83 and she was sent to Nari Niketan at Allahabad the same day with the direction to appear before this Court on 18-7-1983 for the sake of recording her statement. Sonali Mitra was produced before the then Hon''ble Mr. Justice M. Wahajuddin, who after affording sufficient opportunity to her for reflexion, recorded her statement (annexed as Annexure 3 to the affidavit) in the open Court in the presence of J.C. Mitra. Sonali Mitra stated before the Court that she was aged about 19 years and she asserted her date of birth as 5th June 1964 on the basis of horoscope and 5th June 1965 as per her High School Certificate. In her statement, she declined to go to her parents and preferred to be sent to her-in-laws i.e. the applicant''s place. After recording her evidence, Hon''ble Mr. Justice M. Wahajuddin passed the order dated 21-7-1983 that Smt. Sonali Mitra is major and any restraint will not be caused to her while she is moving from this Court to any place of her choice nor any efforts will be made to thwart her liberty. The Court also directed on the request of Sonali Mitra that she be escorted to Nari Niketan enabling her to collect her belongings and thereafter, she be set free to go whereever she chooses.

It is worthy of consideration that Smt. Sonali Mitra nowhere stated before High Court in her statement that she was either abducted, enticed away or raped by the applicant. Smt. Sonali Mitra first appeared before the High Court on 15-7-1983 and Hon''ble Mr. Justice M. Wahajuddin sent her to Nari Niketan Allahabad with the direction that she be produced before the Court on 18-7-1983 for recording her statement and consequently, the statement of Sonali Mitra was recorded on 18-7-1983 and on 21-7-1983 under the direction of the Hon. Court. Smt. Sonali Mitra was sent to Nari Niketan under the escort with the direction that she be set at liberty at Nari Niketan where she had to take her belongings and consequently, Sonali Mitra was set at liberty at Nari Niketan Allahabad on 21-7-1983.

Now reverting to the instant application, the applicant in this application u/s 482 Code of Criminal Procedure has averred that after being set at liberty at Nari Niketan on 21-7-1983 at about 5 p.m. by the escort provided by the High Court while Smt. Sonali Mitra was going with the mother of the applicant to his house, Vijai Shanker, Sub-Inspector of Police Khuldabad Police Station alongwith two other policemen and several persons of the office of J.C. Mitra including some undesirable persons, abducted Smt. Sonali Mitra and brought her at Police Station Colonelganj at about 7 p.m. on 21-7-1983 where she was detained and tortured. However, she was given in the supurdagi of her father J.C. Mitra by the Police.

The statement of Smt. Sonali Mitra at the instance of the Investigating Officer was got recorded u/s 164 Code of Criminal Procedure on 3-8-1983 wherein she had that she was abducted and enticed away by the applicant on 7-6-1983 and also raped by the applicant. Subsequently the Investigating Officer sub-charge sheet against the applicant under Sections 363/366, 368, 376 IPC on 83 on the basis of the aforesaid statement of Sonali Mitra u/s and her statement u/s 161 Code of Criminal Procedure. It was contended by the Counsel for the applicant that the charge sheet has been filed by the e on the basis of the aforesaid statements of Smt. Sonali Mitra which are be lated and incorrect besides being motivated.

The learned Counsel for the applicant further submitted that Smt. Sonali Mitra had appeared before the Hon''ble High Court on 15-7-1983, 18-7-1983 and 21-7-1983 but nowhere in her entire statement recorded by the High Court on 18-7-1983, she had even hinted that she had either been kidnapped, enticed away or abducted by the applicant. Rather, she had expressed her desire to go with the parents of the applicant and emphatically declined to go with her father who was present in the Court. It was also submitted that on the application of the applicant u/s 482 Code of Criminal Procedure, further proceedings were stayed in the case by the High Court and notice was issued to the State and notice was also served on the State, but no counter affidavit came from the Investigating Officer or from Sonali Mitra or even from J.C. Mitra to controvert the contentions of the applicant, though the case was listed for orders and hearing and had to be deferred from date to date on as many as eight occasions.

A further material point to be considered is the averment of the applicant in his affidavit filed in support of the application u/s 482 Code of Criminal Procedure to the effect that there is no other evidence against the applicant except the aforesaid two statements of Smt. Sonali Mitra recorded under Sections 161 and 164 Code of Criminal Procedure.

In view of the facts and circumstances as shown above, it is abundantly clear that the alleged statements of Smt. Sonali Mitra u/s 164 Code of Criminal Procedure dated 3-8-1983 and her statement u/s 161 Code of Criminal Procedure during investigation is nothing but a tissue of lies and reliance cannot be attached to the aforesaid statement which highly belated and concocted in view of the statement of Smt. Sonali Mitra recorded by High Court on 18-7-1983. It may further be noted that the Police had handed over Smt. Sonali Mitra to her father J.C. Mitra on 21-7-1983 and thereafter, she remained in the supurdagi of her father J.C. Mitra till 3-8-1983 when her statement was recorded by the Magistrate u/s 164 Code of Criminal Procedure under the circumstances, her statement u/s 164 Code of Criminal Procedure is nothing but the result of tutoring by her father J.C. Mitra and the same holds good for the statement u/s 161 Code of Criminal Procedure.

In view of the facts stated above, I am of the view that the continuance of criminal proceedings u/s 363/366/368/376 IPC against the applicant in case No. 2428 of 1983 pending in the Court of Chief Judicial Magistrate Allahabad is an abuse of the process of the Court and therefore, charge sheet dated 14-10-1984 submitted by the police of Police Station Colonelganj deserves to be quashed.

In the result, the application u/s 482 Code of Criminal Procedure is allowed and the proceeding against the applicant in Criminal Case No. 2428 of 1983 under Sections 363, 366, 368 and 376 IPC pending in the Court of Chief Judicial Magistrate, Allahabad is quashed. Office is directed to send a copy of this order to the C.J.M. Allahabad for compliance.