Calcutta High Court judgement Dated 13-01-2023
According to the facts mentioned in the complaint filed by the wife, the marriage between the wife and her husband was solemnized on 24.11.2014 as per Hindu rites, traditions, and customs, and at the time of marriage, the father of the wife gave a huge amount of cash and several bhoris of gold ornaments and other articles as per the demand of the husband and In-laws.
It is stated that after the marriage between the wife and her husband, the wife started residing at her husband’s house with the In-laws, and the husband and In-laws took away her gold ornaments, sold them, and swindled the sale proceeds.
It is also stated that after a few days of the marriage, the husband and In-laws started demanding a sum of Rs 50,000 from the father of the wife but, the father of the wife failed to meet such demands, and the wife was assaulted by the husband and In-laws and was not given proper food and medical treatment when the wife fell ill, and the wife bore all torture in silence.
It is further stated that after some time, the wife became pregnant but in spite of that the husband and In-laws inflicted mental and physical torture upon the wife over the issue of Rs Fifty Thousand.
It is also stated that on 21.01.2016, the wife gave birth to a female child, and as a result of which the husband and In-laws stopped talking to the wife, and demanded a further sum of Rs. three lakhs from the father of the wife as expenses towards the marriage of the daughter of the wife.
When the father of the wife got to know about such demand, he handed over a sum of Rs. One Lakh to the husband, and requested the husband and In-laws not to torture the wife, and the torture on the wife was stopped for some time.
Furthermore, it is stated that after a few months, the husband and In-laws demanded a further sum of Rs. Two Lakhs, but when the father of the wife expressed his inability to pay any more money, the husband and In-laws abused the wife in filthy language, and even assaulted the wife.
On 26.01.2018 morning the husband and In-laws with a view to killing the wife went to bring kerosene, and the wife somehow managed to escape from her matrimonial home along with her daughter and took shelter at her parental home, and since then the husband and In-laws didn’t take any information about the welfare of the wife.
Upon this, the wife filed a complaint petition under sections 498A, 323/ 34 of IPC and section 3/ 4 of the Dowry Prohibition Act before the Magistrate, Paschim Midnapore, and after receiving the complaint petition the Magistrate passed the order dated 19.04.2018 to take cognizance of the offense.
Later, the case was transferred to the Magistrate of the second court for trial and disposal, and on 23.07.2018, the Magistrate upon examination of the wife passed the order to find out a prima facie case made against the Husband and In-laws under Sections 498A, 323/ 34 of IPC and Sections 3/ 4 of the Dowry Prohibition Act and issued summons against the husband and In-laws.
The husband and In-laws have filed the present Revision petition for quashing the proceedings of the case pending before the court of Magistrate under Sections 498A, 323/ 34 of IPC and Sections 3/ 4 of the Dowry Prohibition Act.
The advocate appearing on behalf of the husband and In-laws submitted that the proceedings of this case are a gross abuse of the process of the law and court, and if it is allowed to continue it will degenerate into a weapon of persecution and harassment, and the same is liable to be quashed.
It is also submitted that the impugned proceedings are malafide and vexatious, and has been initiated only with a motive to harass the husband and In-laws, and continuance of such proceedings as far as it is related to the husband and In-laws is liable to be quashed.
It is further submitted that the Magistrate has made an error in law by taking cognizance of the offenses on the basis of the complaint petition without compliance with Section 202 of CrPC, and further proceedings have no basis whatsoever. The husband and In-laws are permanent residents of Jharkhand, and the complaint was filed in Midnapore, and if the alleged acts constitute offenses under Sections 498A, 323/ 34 of IPC occurred in Jharkhand, then the place of inquiry should also be at Jharkhand.
It is also submitted that in the present case, the husband and In-laws are residing in Jharkhand, and it is beyond the area where the Magistrate is exercising his jurisdiction, and it is mandatory on the part of the Magistrate to conduct an investigation or Inquiry before issuing the process, and the same was not done in this case, and the order of taking cognizance is bad in liable to quashed and set aside.
Furthermore, it is submitted that the requirement of conducting an inquiry or an investigation before issuing the process is not just an empty formality, and the witnesses need to be examined, whereas according to Section 200, only the examination of the wife is necessary with an option of examination of witnesses.
This exercise by the Magistrate is an obligation on him to apply his mind carefully, and satisfy himself that the allegations in the complaint when considered, the inquiry conducted, and the statements recorded would prima facie constitute the offense for which the complaint petition is filed, and in the present case, the allegations made in the complaint petition do not prima facie constitute any offense or make out any case against the husband and In-laws.
The court stated that in several cases, the Hon’ble Supreme Court has held that the object of an inquiry under Section 202 of CrPC is for the magistrate so that he can scrutinize the materials produced before the court by the person who filed the complaint so that the Magistrate can satisfy himself that the complaint is not false and that there are materials and evidence which form a sufficient ground for the Magistrate to proceed with the issue process under Section 204 of CrPC.
It is the duty of the Magistrate to consider every fact that would establish the bona fides of the complaint and the person who filed the complaint, and the Magistrate conducting an investigation under Section 202 of CrPC has full power to collect evidence and examine the matter, and the Magistrate shall consider whether a prima facie case is being made out or not, and the magistrate shall apply his mind to the materials found before satisfying himself that there are sufficient grounds for the proceedings against the accused person.
It is a well-settled principle of law that Section 202 of CrPC makes it an obligation upon the Magistrate that before summoning the accused person who is residing beyond the Magistrate’s jurisdiction, the Magistrate shall conduct an inquiry into the case himself or direct an investigation by a Police Officer for finding out whether there is sufficient ground for proceeding against the accused person or not.
The court also stated that in the present case, the Magistrate did not comply with the provisions of Section 202 of CrPC, even though the husband and In-laws reside outside the Jurisdiction of the court, and the Magistrate did not conduct any inquiry by himself or did not direct an investigation as required under Section 202 of CrPC, before directing the issue of process, and such order is an abuse of process of law.
The court further stated that the proceedings in the present case are for the offenses punishable under Sections 498A, 323/ 34 of IPC and section 3/ 4 of the Dowry Prohibition Act, and the nature of the complaint petition also needs an inquiry under Section 202 of CrPC.
In view of the above discussion, the court held that the non-compliance of Section 202 of CrPC by the Magistrate before issuing the process is an abuse of the process of law, and the order dated 23.07.2018 passed by the Magistrate is hereby quashed, and the matter is remitted to the Magistrate to consider the matter afresh under Section 202 of CrPC, and as per the provisions of law.
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