Sumit Sen vs State of West Bengal

Asim Kumar Ray, J.—This is an application u/s 482 of the Code of Criminal Procedure, 1973 praying for quashing of proceeding in G.R. Case No. 19 of 1998 pending before the learned Sub-divisional Judicial Magistrate, Tamluk, Midnapore corresponding to Haldia P.S. Case No. 3 of 1998 dated 9-1-98 under sections 498A/406 of the Indian Penal Code and all orders passed therein including the order dated 14-2-01, 10-10-01 and 3-7-02. A short background of the matter may be jotted down here for proper appreciation of the matter for disposal. Complainant Lopamudra Sen was married to the petitioner on 18-1-1994. They lived together in USA till 1997. The relation between them turned bitter. Father of the complainant went to USA and brought his daughter back. In September 1997 complainant filed Matrimonial Suit being No. 608 of 1997 u/s 22 of the Special Marriage Act, 1955 praying for restitution of conjugal rights before the learned Judge, Midnapore. The said suit was dismissed by an order dated 6-1-1999 on the ground of lack of territorial jurisdiction.

Thereafter she submitted a written complaint on 9-1-98 before the Inspector in-Charge, Haldia Police Station. On the basis of that written complaint criminal case being G.R. No. 19 of 1998 corresponding to Haldia P.S. Case No. 3 of 1998 dated 9-1-98 u/s 498A/406 of IPC was started. Petitioner preferred application being CRM No. 4495 of 2000 praying for anticipatory bail before this Hon''ble Court. This Hon''ble Court by an order dated 6.12.2000 granted anticipatory bail to the petitioner on condition that he shall remit Rs. 5,000/- to his wife Lopamudra Sen from the month of December, 2000 until and unless they voluntarily start to live together as husband and wife. The petitioner preferred another application being C.R.R. No. 2439 of 1998 before this Hon''ble Court praying for quashing of the First Information Report and investigation of G.R. Case No. 19. The said application was disposed of by this Court with liberty to the petitioner to raise the condition as portrayed in the said application at the appropriate stage of the proceeding. In view of such leave granted by the Hon''ble Court the petitioner preferred an application for discharge before the learned Sub-Divisional Judicial Magistrate Tamluk, Midnapore. The learned Magistrate passed an order on 10-10-2001 to the effect that the said application cannot be considered at that stage and it was kept in abeyance. In the mean time the petitioner filed another application u/s 205 of Cr.P.C. praying for dispensation of his personal attendance and permission to be represented by his learned lawyer in course of the proceeding. By an order dated 3-7-2002 the learned Magistrate rejected the said application for exemption of his personal attendance u/s 205 of Cr.P.C. and issued non-bailable warrant against him. At this background this application has been preferred.

Mr. Sekhar Basu, learned senior counsel appearing for the petitioner submits in the tune of the application. He submits categorically that the application filed by the petitioner before the learned Court below praying for discharge has been kept in abeyance and the prayer for dispensation of the appearance of the petitioner has been rejected by the learned Court below. The learned Court below may be directed to dispose of the application filed by the petitioner praying for his discharge and the order passed by the learned Magistrate rejecting the application u/s 205 of Cr.P.C. may be set aside.

None appears to represent the State.

On scrutiny of the record it appears that this Court gave a direction to the petitioner by an order dated 12-8-2002 to add the de facto complainant Lopamudra Sen as party and pursuant to such direction a copy of the revisional application was sent to the de facto complainant by speed post and it was served on 16-8-2003. None appears to represent the de facto complainant.

On perusal of the record it appears that petitioner and Lopamudra Sen got married at Calcutta on 13-1-1994. They are residing separately since 1997 following an unhappy married life. One Matrimonial suit was filed by the wife. It was dismissed. The petitioner filed a suit praying for decree of divorce against the Lopamudra Sen before the Superior Court of Washington, County of Kitsap and got an order of divorce against the petitioner by an order dated 22-3-2001. The record further speaks that the petitioner is on anticipatory bail granted by this Court passed in CRM No. 4495 of 2000 on 6-12-2000 with condition that he shall remit Rs. 5,000/- to his wife Lopamudra Sen from the month of December, 2000 until and unless they voluntarily start to live together as husband and wife. A clear picture is not coming out from the record as to whether the learned Court below is posted about the anticipatory bail and condition thereto as the photocopies of the order sheets annexed with the application do not indicate any such information. On the contrary, it appears that the Learned Court below passed order for issuance of summons upon the petitioner.

The petition speaks that a revisional application being C.R.R. No. 2439 of 1998 was filed before this Court by the petitioner and the same was disposed of giving liberty to the petitioner to raise the points taken by him in that revisional application at the appropriate stage of the proceeding. In view of such leave granted by this Court the petitioner preferred an application for discharge before the Learned Court below and the same has been kept with the record. It is not clear before the Court as to whether the anticipatory bail of the petitioner was regularised or not. It is also not clear before the Court as to whether the petitioner is complying with the condition imposed on him at the time of disposal of his anticipatory bail application by this Hon''ble Court by an order dated 6-12-2000.

Taking the totality of the matter, I find it judicious to express that it is not desirable at this stage to allow the prayer of the petitioner dispensing with his personal attendance before the Learned Court below by allowing him to be represented by his Learned Advocate. This is the second revisional application filed by the petitioner. The prayer for discharge at his instance is pending for disposal before the Learned Court below and the said application has its origin in previous revisional application i.e. C.R.R. No. 2439 of 1998.

The application for discharge filed by the petitioner which has been kept with the record be disposed of as early as possible preferably within eight weeks from date by the Learned Court prior to proceeding with this matter further. In the aforesaid factual scenario this revisional application stands dismissed. Interim order, if any stand vacated.