Calcutta High Court (Appellete Side)
Sumanlal Kodialbail & Ors vs The State Of West Bengal & Anr on 20 August, 2025
2025:CHC-AS:1593
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRR 3747 of 2022
With
CRAN 1 of 2025
Sumanlal Kodialbail & Ors
Vs.
The State of West Bengal & Anr.
For the Petitioner : Mr. Ayan Bhattacharya, Sr. Adv
Ms. Aditya Ratan Tiwary
Mr. Suman Majumder
Ms. Santanu Thakur
For the State : Mr. Debasisi Roy, Ld. PP
Mr. Imran Ali
Ms. Puspita Saha
For the Opposite Party No.2 : Mr. Subrata Bhattacharya
Mr. Indanuj Dutta
Heard on : 06.08.2025
Judgement on : 20.08.2025
Dr. Ajoy Kumar Mukherjee, J.
1. The instant application under section 482 of the Code of Criminal
Procedure has been preferred assailing the proceeding being Burdwan
Women Police Station Case No. 403, dated August 21st, 2022 under section
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498A/406 of the Indian Penal Code (IPC) pending before CJM, Purba
Burdwan.
2. On August 21, 2022 the opposite party no. 2 herein lodged an FIR
against the petitioners herein inter alia on the allegations that since after the
marriage of opposite party no. 2 with the petitioner no. 1 herein, the
opposite party no. 2 has been subjected to mental and physical torture by
the petitioners herein. Due to such continuous torture and oppression
opposite party no.2 had to leave her matrimonial home and thereafter she
took shelter at Burdwan. It has been further alleged that all the stridhan
belongings of the opposite party no. 2 are forcefully kept at the matrimonial
house of the opposite party no.2. It is also alleged that the petitioner no. 1
being the husband of defacto complainant/opposite party no.2, had also
cheated the father of the opposite party no.2, for which he had to face huge
monetary loss. It has also been alleged that on 7th July, 2022 the petitioner
no. 1 herein reached Burdwan and called the opposite party no.2, when she
was on medical call. The opposite party no.2 after getting such call from
petitioner no.1/her husband, rushed to her rented house. It is further
alleged that suddenly petitioner no. 1 slapped the complainant/opposite
party no.2 herein and started kicking her on her leg thereby thrashed her on
ground and tempted to throttle the opposite party no.2 with intention to kill
her. The victim/opposite party no.2 raised alarm and when the neighbours
reached the spot, the petitioner no. 1 left the place.
3. Being aggrieved by the aforesaid impugned proceeding, Mr. Ayan
Bhattacharya learned counsel appearing on behalf of the petitioners submits
that the de facto complainant has an extra marital affair and after coming to
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know about such illicit relation the petitioner no.1/husband raised
objection, when the opposite party no.2 became violent and threatened the
petitioner no.1 with dire consequences. The Opposite party no. 2 herein is
residing at present with the person with whom she has extra marital affair
at Burdwan. He further submits that the petitioner no. 1 got married to the
opposite party no. 2 on 26.05.1997 and from the said wed lock two children
were born who are residing with the petitioner no. 1. On 14.05.2019 said
opposite party no.2/complainant eloped with her paramour with money and
jewelleries as would be evident from the complaint so lodged by the self-
same opposite party no. 2 with the superintendent of Police sector 6, Gandhi
Nagar, Gujarat on May, 17, 2019. Subsequently she also lodged another FIR
on January 16, 2021 against the opposite party no. 1 herein under sections
420/406/467/468/471 of the IPC but in the said FIR there is no whisper of
mental torture during the entire period. The petitioner no.1/ accused
further contended that he is a resident of Gandhinagar, Gujarat where he
resides with his old ailing mother being the petitioner no. 2 herein and with
his two children whom the opposite party no. 2 herein has abandoned.
4. Mr. Bhattacharya accordingly submits that it is evident that the
present proceeding is a malicious attempt on behalf of the opposite party
no.2 to implicate the petitioners in any manner in order to expose them to
the chilling effect of threat, arrest and prosecution. He further submits that
the allegations under section 406 of IPC is suffering from antagonistic
contradiction which is evident from the fact that in the complaint lodged by
the opposite party no.2 herein with the police station at Gandhi Nagar
Gujarat, the opposite party no. 2 had admitted that she had taken all her
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belongings and cash and that she had left her matrimonial house at her own
free will and under no pressure on influence from anybody. Accordingly
when she admittedly had taken all her belongings on 22nd May, 2019, the
question of misappropriation of said belongings in 2022 cannot and does
not arise.
5. He further submits that the instant proceeding is also barred by
limitation as the offence under section 498A or 406 of IPC is punishable
with imprisonment for a period of three years and under section 468 of
Cr.P.C., the court is not supposed to take cognizance of an offence after
three years. He further submits that in the present case the opposite party
no. 2/ complainant eloped with her paramour on 14.05.2019, for which a
missing diary was lodged by petitioner no.1 on May 17, 2019, whereas the
present FIR was initiated on August 21, 2022 which is beyond three years.
He further submits that no preliminary inquiry was conducted in the
present case in terms of the direction passed by the Hon’ble Apex Court in
Lalita Kumari Vs. Government of Uttar Pradesh and Ors. reported in
(2014) 2 SCC 1.
6. Mr. Bhattacharjee further submits that during investigation opposite
party no. 2 did not turn up for examination and no specific allegation with
date or time has been mentioned in the complaint, which is sine qua non for
framing a charge under section 498A of the Code. Accordingly he prayed for
quashing the aforesaid impugned criminal proceeding.
7. Learned counsel appearing on behalf of the opposite party no.2
opposed the prayer for quashment. He contended that at this stage of
considering a petition for quashing criminal proceeding, the allegations in
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the FIR must be accepted as they stand and the court cannot embark upon
the appreciation of evidence. In this context he placed reliance upon
Judgement of a coordinate Bench of this Court reported in 2022 0 Supreme
(Cal) 529.
8. Mr. Imran Ali learned Counsel appearing on behalf of the State placed
the case diary and submitted that there are sufficient materials against the
present petitioners in the case diary which includes the statements recorded
under section 161 of the Code of Criminal Procedure and the investigation
has already been culminated into a charge sheet and as such it would not
be proper to throw away the instant proceeding without giving an
opportunity to the prosecution to prove their case.
9. I have considered submissions made on behalf of both the parties.
10. During the course of argument learned counsel for opposite party no.2
denied the contention of the petitioners herein but fact remains that on May
22, 2019 the self same defacto complainant lodged a complaint against the
petitioner no. 1 before Superintendent of Police sector 6, Gandhi Nagar,
Gujarat with evasive and unspecified allegation of mental and physical
torture by her husband but she has admitted therein that she has taken all
her belongings and cash which she has earned through medical profession
and she left her matrimonial house at her free will and under no pressure or
under any influence from anybody.
11. It is also not disputed that the petitioner no.1 herein lodged a missing
diary in Santej Police Station, Gandhinagar, Gujarat on 17.05.2019 and
against the missing report the opposite party/ complainant gave statement
to the investigating officer of the said case where she admitted that she has
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been staying under the shelter of another person at the address mentioned
in the FIR i.e. at Budwan. It further appears from the complaint lodged by
the self same defacto complainant on 16.01.2021, that there is no allegation
of physical or mental torture in the said complaint.
12. The solitary incident which has been emphasised to attract Section
498A of IPC during the hearing, by learned counsel appearing on behalf of
the State and the opposite party no. 2, is in connection with above-
mentioned occurrence which allegedly took place on July 10, 2022 when
petitioner no.1/husband/accused reached Burdwan and called her at her
residence and then allegedly slapped her and started kicking her on her leg
and tried to throttle her with the intention to kill her.
13. It appears that during investigation the alleged case of attempt to
throttling the complainant by the petitioner no.1 did not find support. Upon
perusal of the materials including the complaint, it is evident that there was
no narration of fact particularly with regard to section 498A IPC. It is trite
law that “cruelty” under Section 498A has to be understood having a
statutory meaning provided in the said section. Therefore the question posed
herein for consideration is whether the solitary incident of slapping or
kicking without having statutory meaning, that allegedly took place on July
10, 2022, attracts Section 498A of IPC or not.
14. In Girdhar Shankar Tawade Vs. State of Maharashtra reported in
AIR 2002 SC 2078, it has been clearly held that ‘cruelty’ has to be
understood having a specific statutory meaning provided in section 498A
IPC and there should be a case of continuous state of affairs of torture by
one to other. Therefore, it has to be established that the victim/complainant
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has been subjected to cruelty continuously/persistently or at least close
proximity of time of lodging the complaint. Petty quarrels and physical
assault, if any, which allegedly took place on July 10th , 2022 cannot be
termed as “cruelty” to attract the explanation given in section 498A IPC nor
can be called as causing mental torture to the extent that it became
unbearable to attract the term “cruelty”. In this context reliance has been
placed upon Manju Ram Kalita Vs. State of Assam reported in AIR 2009
SC (SUPP) 2056.
15. In the present case from narration of fact it would be evident that the
petitioner no.1 got married to the opposite party no.2 way back in 1997 and
two children were born who are now adult and there is no denial on the part
of the opposite party no.2 that she had left her matrimonial home
voluntarily along with money and jewellery as admitted in her earlier
complaint dated May 17, 2019. Moreover the second FIR which was lodged
on 16th January, 2021 against the petitioner no.1/husband under sections
420/406/467/468/471 of the IPC i.e. one and half year before instant FIR,
no charge under section 498A IPC was levelled.
16. I have also gone through the statements of the witnesses recorded
during investigation. Beside evasive allegation, the statement of witnesses
refers to incident that allegedly took place on July, 10 2022, when the
petitioner no. 1 herein allegedly slapped opposite party no.2 and kicked and
harassed her and had created ruckus. From the statement of witnesses, it
only appears that the incident of ruckus and assault by fist and blow by
Petitioner No.1/husband had taken place on that particular day and in view
of the aforesaid settled proposition of law, such a solitary incident of ruckus
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as alleged and/or assault by fist and blow does not satisfy the essential
ingredients of section 498 A of the IPC.
17. Herein the provisions under section 498A of the IPC has been invoked
clearly by a disgruntled wife against her husband and her-in-laws. In
Kahkashan Kausar @ Sonam & Ors Vs. State of Bihar & Ors. reported
in (2022) 1 SCR 558 the Apex Court held that incorporation of section 498A
of IPC was aimed at preventing cruelty committed upon a women by her
husband and her in laws. However in recent times matrimonial litigation in
the country has also been increased significantly and there is a greater
disaffection and friction surrounding the institution of marriage, which has
resulted in an increased tendency to employ provisions such as section
498A IPC as instruments to settle personal scores against the husband and
his relatives. It was further held that false implication by way of general
omnibus allegations made in the course of matrimonial dispute, if left
unchecked would result in misuse of the process of law. Therefore, the
Supreme Court has warned the courts from the proceeding against the
relative and in laws of the husband when no prima facie case is made out
against them.
18. Herein also upon perusal of the contents of the FIR it reveals that in
the complaint general allegations have been levelled against the husband
and the in laws and no specific or distinct allegation have been made
against them. The specific isolated allegation made in the FIR against the
husband which allegedly took place on 10.07.2022 apparently does not
constitute any cognizable offence, far from offence under section 498A IPC.
Moreover, in the present case, the FIR was lodged after 25 years of marriage,
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on the basis of a solitary incident and in the FIR there is no whisper about
initiation of the earlier proceedings by the opposite party and the FIR also
does not contain explanation for delay in lodging the FIR against the
petitioners. Even the solitary incident was allegedly took place on July, 10th,
2022 but the FIR was initiated on August 21, 2022, without having any
explanation.
19. Needless to reiterate that the term ‘cruelty’ has been defined in section
498A itself and it states that in order to attract section 498A first of all there
would be any wilful conduct which is likely to drive the women to commit
suicide or to cause grave injury or danger to life limb and health. Secondly
harassment of women where such harassment is with a view to coercing her
or any interested person related to her to meet any unlawful demand
including demand of dowry or on account of failure to meet such demand.
20. In the facts and circumstances of the instant case the FIR and the
charge sheet are conspicuously silent about any kind of torture or any
unlawful demand against petitioners beside omnibus statements. In fact
mere harassment and/or infliction by fist and blow and/or creating ruckus
and/or assault would not ipso fact constitute cruelty unless the intensity of
such torture and/or fist and/or blow and/or ruckus, so intended as to drive
the women to commit suicide or to cause grave injury or danger to her life.
The allegations levelled against the in-law who are petitioners No. 2 to 6
herein, even if taken at its face value are bald allegations without any
specific date, time on place and no incriminating material found by the
prosecution during investigation against the said in-laws/petitioners to
substantiate the ingredients of “cruelty” under Section 498A of IPC.
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21. The contents of FIR and materials collected during investigation
contains certain statements indicating that at least on one occasion
petitioner No.1/husband had assaulted opposite party No.2/complainant
but as stated above, mere physical assault in absence of any unlawful
demand, does not constitute offence under Section 498A IPC. There is also
no material to suggest that there had been any wilful conduct on the part of
husband or any in law of such a nature as was likely to drive the
complainant to commit suicide or to cause grave injury as danger to life,
limb or health, whether mental or physical. Mere inability to adjust or
absence of sweet relationship, compelling wife to live separately at others
family does not amount to even “mental cruelty” as defined under the
section.
22. Moreover in Girdhar Shankar Tawade vs. State of Maharashtra,
(2002) 5 SCC 177: AIR 2002 SC 2078, court made it, clear that there shall
have to be series of acts in order to be a “harassment” within the meaning of
explanation (b) of section 498A IPC. Relevant paragraph may be quoted
below:-
“18. A faint attempt has been made during the course of submissions that
Explanation (a) to the section stands attracted and as such, no fault can be
attributed to the judgment. This, in our view, is a wholly fallacious approach
to the matter by reason of the specific finding of the trial court and the High
Court concurred therewith that the death unfortunately was an accidental
death and not suicide. If suicide is left out, then in that event question of
applicability of Explanation (a) would not arise — neither the second limb to
cause injury and danger to life or limb or health would be attracted. In any
event the wilful act or conduct ought to be the proximate cause in order to
bring home the charge under Section 498-A and not dehors the same. To have
an event sometime back cannot be termed to be a factum taken note of in the
matter of a charge under Section 498-A. The legislative intent is clear enough
to indicate in particular reference to Explanation (b) that there shall have to be
a series of acts in order to be a harassment within the meaning of Explanation
(b). The letters by themselves though may depict a reprehensible conduct,
would not, however, bring home the charge of Section 498-A against the10
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accused. Acquittal of a charge under Section 306, as noticed hereinbefore,
though not by itself a ground for acquittal under Section 498-A, but some
cogent evidence is required to bring home the charge of Section 498-A as well,
without which the charge cannot be said to be maintained. Presently, we have
no such evidence available on record.”
23. Now as regards the allegation levelled under section 406 of IPC, I
have already mentioned above that the defacto complainant has made clear
statement when she lodged the FIR at Gandhinagar, Gujarat on May, 17,
2019 that she had left her matrimonial house voluntarily and she had taken
all her belongings and cash which may be reproduced below:-
“I have taken by belongings and cash which I have earned
through my medical profession. I have not taken any cash or
jewellery that belonged to my husband or my parents”
24. In view of aforesaid statement it appears that there is no demand of
return of Stridhan articles whatsoever in the first FIR so lodged on January,
16, 2021 and therefore the allegation under section 406 IPC is clearly an
afterthought and is not sustainable in law, and also not sustainable in view
of fact that it is barred by limitation.
25. It is settled proposition of law that where in the opinion of the court,
chances of an ultimate conviction are blick and therefore no useful purpose
is likely to be served by allowing criminal prosecution to continue, the court
of law while taking into consideration the special facts of a case, can also
quash the proceeding. Therefore, when it is apparent that the allegations
made in the FIR as well as the materials collected during investigation even
if are taken at their face value and accepted in their entirety, do not prima
facie constitute any cognizable offence or make out the case as alleged
against the accused person/petitioners and when the criminal proceeding
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appears to be manifestly attended with malafide with an ulterior motive for
wreaking vengeance on the accused persons and with a view to spite them
due to private and personal grudge, which is also apparent from lodging
multiple FIR against the petitioner over a period of time, the court must
invoke its power for the ends of justice. Therefore, on perusal of FIR, the
final report under section 173 of the Code and all other documents
accompanying it, I am satisfied that no cognizable case is made out against
any of the petitioners and the pendency of the instant proceeding against
them before the court below is an abuse of process of court.
26. In such view of the matter CRR 3747 of 2022 is allowed.
27. The impugned proceeding being Burdwan Women Police Station Case
no. 403 dated August 21, 2022 under section 498A/406 of the IPC pending
before court of Learned Chief Judicial Magistrate, Purba Burdwan is
quashed. Connected application, if any, accordingly disposed of.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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