Santiram Chowdhury vs State of West Bengal

Mr. Ranjit Kumar Bag, J. - The petitioners have preferred this revision praying for quashing of the proceeding of Complaint Case No.59 of 2015 pending before the court of learned Additional Chief Judicial Magistrate, Bolpur, Birbhum.

The opposite party filed a petition of complaint against the petitioners and one Tapas Kumar Chowdhury before the court of learned Additional Chief Judicial Magistrate, Bolpur, Birbhum praying for issuance of process against all of them for the offence punishable under Section 497/109 of the Indian Penal Code. The learned Magistrate took cognizance, examined the opposite party and another witness under Section 200 of the Code of Criminal Procedure and issued process against the present petitioners for the offence punishable under Section 497/109 of the Indian Penal Code and against Tapas Kumar Chowdhury for the offence punishable under Section 497 of the Indian Penal Code. The petitioners appeared before the trial court and were released on bail. Accordingly, the petitioners are facing trial for the offence punishable under Section 497/109 of the Indian Penal Code before the court of learned Magistrate.

By referring to the averments made in the petition of complaint, Mr. Kunal Ganguly, learned counsel appearing on behalf of the petitioner submits that the petitioner no.1 happens to be the father of the principal accused Tapas Kumar Chowdhury and the petitioner no.2 happens to be the mother of the principal accused Tapas Kumar Chowdhury and petitioner no.3 happens to be the sister of the principal accused Tapas Kumar Chowdhury. Learned counsel further submits that the opposite party has made vague allegation of giving indulgence and assistence to the principal accused by the petitioners in committing the offence of adultery. According to the learned counsel for the petitioners, no offence is made out against the petitioners and as such the criminal proceeding is liable to be quashed against the present petitioners.

Mr. Tapas Kumar Ghosh, learned counsel appearing for the opposite party contends that the opposite party has made specific allegation in the petition of complaint that the present petitioners not only gave indulgence to the principal accused Tapas Kumar Chowdhury, but also assisted and gave full support to the principal accused Tapas Kumar Chowdhury in committing the offence of adultery and as such, the petitioners are liable to be prosecuted for the offence punishable under Section 497/109 of the Indian Penal Code.

The criteria laid down by the Supreme Court for quashing of the criminal proceeding in paragraph 102 of "State of Haryana v. Bhajanlal" reported in 1992 SCC (Cri) 426 are as follows:-

"�.102 (a) Whether 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.

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

(c) Whether 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.

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

(e) Whether 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.

(f) 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.

(g) 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.

By applying the above test laid down by the Supreme Court in the facts of the present case, I have to decide whether offence is made out against the petitioners for continuation of the criminal proceeding. The contents of the petition of complaint disclose that one Barnali Sil was married to the opposite party on August 8, 2003 and one daughter was born from the said wedlock. The averments made in the petition of complaint indicate that the present petitioners and one Tapas Kumar Chowdhury are the distant relations of the opposite party and his wife Barnali Sil. It is alleged in the petition of complaint that in the year 2009 Barnali Sil left the matrimonial home and started living in labhpur in the house of her parents. There were civil and criminal cases between the opposite party and his wife Barnali Sil from the year 2009 till the year 2012. It is further alleged that Barnali Sil established illicit sexual relation with Tapas Kumar Chowdhury and they started living in adultery. The averments made in the petition of complaint indicate that the present petitioners assisted, helped and gave indulgence to the principal accused Tapas Kumar Chowdhury in committing adultery with the wife of the opposite party. The manner of providing assistance to the principal accused Tapas Kumar Chowdhury by the present petitioner in committing adultery with the wife of the opposite party is not spelt out in the petition of complaint. Similarly, the manner of giving indulgence to the principal accused Tapas Kumar Chowdhury by the present petitioners is also not spelt out in the petition of complaint. On making close scrutiny of the entire averments made in the petition of complaint, I am unable to comprehend how the present petitioners being the parents and sisters of the principal accused Tapas Kumar Chowdhury provided help and assistance to the principal accused in committing the offence of adultery. In my view, the opposite party no.2 has failed to make out prima facie case against the petitioners for prosecuting them for the offence punishable under Section 497/109 of the Indian Penal Code.

It is relevant to quote Section 107 of the Indian Penal Code, which lays down how a person can abet for the purpose of commission of the offence, which is as follows:-

"107. Abetment of a thing. - A person abets the doing of a thing, who � First. � Instigates any person to do that thing; or

Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."

It appears from the above definition of an abetment of a thing given in Section 107 of the Indian Penal Code that a person can be prosecuted for abetment only if he instigate a person or engages with one or more persons in any conspiracy for doing anything or for omitting to do anything in pursuance of that conspiracy or intentionally aids by any action or omission for the doing of a thing. In the instant case, the opposite party has failed to spell out how the present petitioners gave indulgence or how the present petitioners helped and assisted the principal accused Tapas Kumar Chowdhury in committing the offence of adultery. In the absence of specific averments in the petition of complaint with regard to allegation of abetment against the petitioners, I am of the view that no offence is made out against the petitioners for prosecuting them for the offence punishable under Section 497/109 of the Indian Penal Code. Thus, the continuation of the criminal proceeding against the present petitioners will be an abuse of the process of the court.

In view of the proposition of law laid down by the Supreme Court in "State of Haryana v. Bhajanlal" (supra), I am inclined to invoke my inherent power under Section 482 of the Code of Criminal Procedure to quash the criminal proceeding against the petitioners. As a result, the criminal proceeding of Complaint Case No.59 of 2015 qua the petitioners pending before the court of learned Additional Chief Judicial Magistrate, Bolpur, Birbhum is quashed. Learned Additional Chief Judicial Magistrate, Bolpur, Birbhum is directed to continue with the hearing of Complaint Case No.59 of 2015 against the accused Tapas Kumar Chowdhury in accordance with law.

With the above direction, the criminal revision is disposed of.

Let a copy of the order be sent down to the learned court below for favour of information and necessary action.

Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.