I am most ashamed, most aghast, most astonished and most appalled to learn that none other than the oldest High Court of India that is the Calcutta High Court has in a most learned, laudable, landmark and latest judgment titled Swapan Kumar Das vs State of West Bengal & Anr in CRR No. – 2455 of 2018 with CRR No. – 2864 of 2018 that was pronounced as recently as on August 21, 2023 in the exercise of its criminal revisional jurisdiction has minced just no words to observe unequivocally that, “The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.” We see that there were two separate criminal cases that had been filed against the petitioner under different Sections of the Indian Penal Code (IPC), namely 498A, 307, 506(ii) and 406. It must be mentioned that a Single Judge Bench comprising of Hon’ble Mr Justice Subhendu Samanta was hearing two pleas by a husband and his family members facing charges under Section 498A of IPC that were levelled by his estranged wife who alleged mental and physical torture by her husband and his family members. The Calcutta High Court found that two compact discs (CDs) provided by the complainant wife did not establish prima facie offence against the husband and his family members.
At the very outset, this most courageous, creditworthy, cogent and convincing judgment authored by the Single Judge Bench of the Calcutta High Court comprising of Hon’ble Mr Justice Subhendu Samanta sets the ball in motion and puts things in perspective by first and foremost putting forth in the opening para itself that, “Both the criminal revisions are taken up together for brevity of discussion on the ground that parties of both the criminal proceedings are same. The private opposite party No. 2 Bnashree married the petitioner Dwaipayan Das on 27th of October, 2016 as per the provisions of Special Marriage Act 1954. The opposite party No. 2 lodged a written complaint with the O.C. Baguihati Police Station on 13th of October 2017 contending inter alia that her husband Dwaipayan Das inflicted physical and mental torture upon her since marriage and on that day i.e. on 13.10.2017 Dwaipayan assaulted the de-facto complainant Banashree and also tried to kill her. On the basis of the said complaint Baguihati Police Station Case No. 679/2017 dated 13.10.2017 u/s 498A/307 of IPC was started against Dwaipayan. Investigation of the police is started. It is the further allegation that during the investigation of that case a talk of settlement was arrived at between the parties and the de-facto complainant Banashree went to her matrimonial home on 26th of October, 2017 and started staying there on. On 14th December 2017 Banashree again lodged another written compliant with the O.C. Baguihati Police Station containing physical and mental torture inflicted upon her by her husband and in-laws during her stay at her matrimonial home. On the basis of such complaint another Baguihati P.S Case No. 773 of 2017 dated 14.12.2017 u/s 498A/506(ii)/406 of IPC was started against Dwaipayan and his parents. Now the husband and the in-laws of the de-facto complainant filed two separate applications before this court u/s 482 of the Code of Criminal Procedure for quashing both the criminal proceedings.”
As we see, the Bench then observes after hearing both sides that, “Heard the Learned Advocate. Perused the petitions also perused the CDs placed before me by the concerned authority. It appears that the FIR being No. 679 was initiated on the basis of written complaint of Banashree wherein she alleged the physical and mental torture inflicted upon her on 13.10.2017. during the course of investigation of that case police recorded the statement of parents of Banashree and also recorded the statement of one neighbour of a building wherein the de-facto complainant and her husband was staying separately. The allegations against the husband is general and omnibus. The witnesses also did not bring out any more further ingredients of such allegations. If, the facts shows after such complaint there were compromise between the parties for which Banashree started living her matrimonial home since 26.10.2017.”
As it turned out, the Bench then discloses in the next para of this brief judgment that, “However, it is the counter case of the petitioners herein that Banshree never stay at her matrimonial home with the inlaws but Banashree and her husband residing separately in a separate flat. However, Banashree again lodged a complaint on 14th December 2017 alleging the husband and her in-laws for the offence of physical and mental torture upon her since the date of marriage. Police again started investigation on the basis of FIR dated 14.12.2017 and same set of evidences of available witnesses were recorded u/s 161 Cr.P.C. During the course of investigation several household articles were seized by the police from the flat wherein the de-facto complainant and her husband was staying. The household articles were taken jimma to the de-facto complainant. After conclusion of investigation police submitted charge-sheet against all the accused persons.”
Be it noted, the Bench notes later in this notable judgment that, “In considering the role of husband in this case it appears that the allegation is there relating to physical and mental torture inflicted upon Banashree on 13th October 2017. CD included a medical prescription wherein no injury in the person of Banashree is found. The statement of available witnesses recorded by the investigating officers also not supporting the case of the complainant regarding the direct evidence of torture. The certified copy of matrimonial suit no. 555 of 2018 which was filed by the de-facto complainant for divorce is placed before me. On perusal the pleadings on that MAT Suit, it appears to me that several other facts were alleged in the said complaint. There are no co-relation between the pleading of MAT suit and the present complaint.”
Most significantly, most forthrightly, most commendably and most remarkably, the Bench then hastens to add in the next para of this brilliant judgment propounding clearly that, “The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed. Harassment and torture enumerated in the definition of security u/s 498A cannot be proved solely by the defacto complainant. The criminal law is allowed, complainant to file a criminal complaint but the same has to be justified by adducing cogent evidences. The four corners of both the CDs recorded no such evidence by which prima facie offence against the present petitioners can be established. The direct allegation against the husband by the de-facto complainant is merely from the version of the de-facto complainant herself. It support no documentary or medical evidence. One neighbour has heard about the quarrel of Banshree her husband; the quarrel of two persons does not mean or prove who is in aggression or who is aggrieved. On perusing the observation of Hon’ble Supreme Court in Ch. Bhajanlal, I am of a view that the instant criminal proceedings initiated by the de-facto complainant against the husband and in-laws does not disclose prima facie offence against them as alleged. The proceeding are instituted only to fulfil personal grudge.”
As a corollary, the Bench then observes in this remarkable judgment that, “Considering the circumstances I think it necessary to invoke the inherent power of this court to quash the proceedings otherwise the continuation of the criminal proceedings would be tantamount to the abuse of process of court.”
Resultantly, the Bench then finally concludes by holding in the concluding part of this refreshing judgment that, “I find merit, in the instant criminal revisions and it is liable to be allowed. CRRs are allowed. The criminal proceedings being GR Case No. 4369 of 2017 arising out of Baguihati Police Station case no. 679 dated 13.10.2017 u/s 498A/307 IPC and the criminal proceedings being GR No. 4694 of 2017 arising out Baguihati P.S case No. 773 dated 04.12.2017 u/s 498 A/506 (ii)/406 of IPC pending before the Learned Chief Judicial Magistrate Barasat respectively are hereby quashed. CRRs are disposed of along with pending connected CRAN applications. Any order of stay passed by this court during the continuation of the instant criminal revision is hereby also vacated. CD be returned. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.”
On the whole, it is high time and Centre must at least now take some inspiration from this most learned judgment and amend our penal laws to make it a punishable and non-bailable offence if a woman files false cases under Section 498A of IPC before enacting the latest penal laws which have been amended by Centre but are yet to come into effect! This will definitely act as a strong deterrent to a women to refrain from indulging in legal terrorism only if a fixed jail term of at least an year is strictly imposed on her if she dares to lodge a false case! This brooks no more delay any longer!
How long will men only be made a scapegoat compelled to suffer immensely, immeasurably and indefinitely because of draconian Sections like 498A of IPC? It cannot be an endless wait for innocent men made to suffer for being born as a men! No denying it!
Sanjeev Sirohi
