Tarit Baran Topdar vs The State of West Bengal

R.K. Bag, J.—The petitioners have preferred this revision under Section 482 of the Code of Criminal Procedure praying for quashing of the proceeding of G. R. No. 56 of 2016 arising out of Tala Police Station Case No. 3 of 2016 dated January 3, 2016 under Sections 498A/420/120B of the Indian Penal Code pending before the court of learned Additional Chief Judicial Magistrate, Sealdah.

It appears from the materials on record that the Opposite Party No.2 filed a written complaint against the petitioners and one Niladri Topdar before the Officer-in-Charge of Tala Police Station on the basis of which Tala Police Station Case No. 3 dated January 3, 2016 was registered. The investigation of the criminal case was initially stayed by the interim order of this Court on January 28, 2016. However, on April 1, 2016 the said interim order was modified, so that the Investigating Officer may continue with the investigation of the criminal case without taking any coercive measure against the petitioners and the co-accused persons. So the investigation of the criminal case is in progress.

Mr. Debajyoti Deb, learned counsel for the petitioners contends that the contents of the written complaint treated as First Information Report do not disclose any offence against the petitioners and as such continuation of the criminal proceeding against the petitioners is an abuse of the process of the court. On the other hand, Mr. Edulji, learned counsel for the Opposite Party No. 2 has referred to the averments made in the written complaint and submitted that the petitioners have suppressed material facts at the time of negotiation of the marriage between the Opposite Party No. 2 and one Niladri Topdar and thereby caused harm to the body, mind and reputation of the Opposite Party No.2 and thereby the petitioners have committed offence punishable under Section 420 of the Indian Penal Code. Mr. Ayan Basu, learned counsel for the Opposite Party/State submits that the offence under Section 420 of the Indian Penal Code is made out against the petitioners and as such investigation should be allowed to continue and come to its logical conclusion of submitting police report in final form under Section 173 of the Code of Criminal Procedure.

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...... (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 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.

(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 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.

(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."

By applying the above test laid down by the Supreme Court in the facts of the present case I have to decide whether the contents of the written complaint treated as First Information Report disclose commission of cognisable offence for continuation of the criminal proceeding against the petitioners. It is relevant to point out that the Opposite Party No. 2 was married to one Niladri Topdar on January 21, 2014 as per provision of the Special Marriage Act. The petitioner no.1 happens to be father-in-law of the Opposite Party No.2 and the petitioner no.2 happens to be the mother-in-law of the Opposite Party No.2. The petitioner no.3 happens to be uncle-in-law of the Opposite Party No.2 and the petitioner no.4 happens to be brother-in-law of the Opposite Party No.2. The contents of the written complaint treated as First Information Report disclose that the husband of the Opposite Party No.2 was impotent and suffers from Tuberculosis and other diseases. It is alleged in the complaint that the petitioners projected glossy career and character of the husband of the Opposite Party No.2 before the marriage. The fact that the husband of the Opposite Party No.2 was suffering from tuberculosis and other physical incapacity was not disclosed at the time of negotiation of the marriage and thereby damage and harm are caused to the body, mind and reputation of the Opposite Party No.2. By taking the entire allegation made in the written complaint I am of the view that no offence is made out against the petitioners under Section 498A of the Indian Penal Code. However, the allegation made by the Opposite Party No.2 taken on the face value as true can make out an offence under Section 420 of the Indian Penal Code for continuation of the investigation of the criminal case. The specific role played by the parents-in-law, uncle-in-law and brother-in-law of the Opposite Party No.2 in suppressing the materials facts at the time of negotiation of the marriage between Niladri Topdar and the Opposite Party No.2 is not disclosed in the written complaint treated as First Information Report. There is no allegation of deception about the career and character of the husband of the Opposite Party No.2 in the written complaint. When two adult persons of average intelligence are entering into marital relationship, it is duty of both of them to disclose material facts at the time of negotiation of the marriage for leading healthy married life. There cannot be any culpability on the part of the parents and the relatives of the husband for not disclosing material facts about disease and physical incapacity of the groom to the Opposite Party No.2 at the time of negotiation of the marriage. Thus, on the basis of allegations made by the Opposite Party No.2 in the written complaint I am of the view that the investigation of the criminal case should continue and come to its logical conclusion in submitting police report in final form under Section 173 of the Code of Criminal Procedure, but no prima facie case is made out against the present petitioners for continuation of the criminal proceeding against them. As a result, the continuation of the criminal proceeding against the present petitioners will be an abuse of the process of the court. By applying the test laid down by the Supreme Court in "State of Haryana v. Bhajanlal" (supra) I would like to invoke my inherent power under Section 482 of the Code of Criminal Procedure to quash the criminal proceeding qua the present petitioners.

The criminal proceeding of G.R. No. 56 of 2016 arising out of Tala Police Station Case No. 3 of 2016 dated January 3, 2016 is quashed so far as the present petitioners are concerned. However, the Investigating Officer of Tala Police Station Case No. 3 of 2016 will continue with the investigation of the said case against Niladri Topdar and submit police report in final form under Section 173 of the Code of Criminal Procedure before the court of concerned learned Magistrate. Criminal revision is, thus, allowed.

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

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.