ASHIRUDDIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS is an application under Section 482 read with Section 300 Cr. P. C. praying for quashing of Hanskhali P. S. Case No. 281 dated 06. 12. 2005 under Section 498a/34 I. P. C. pending in the Court of learned Additional chief Judicial Magistrate, Ranaghat, District - Nadia.

(2.) THE petitioner No. 1 is a retired Sub-Inspector of Police and the petitioner No. 2 is a Constable. The first wife of petitioner No. 1 died and thereafter he again married O. P. No. 2 Rojina Bibi on 25. 06. 2004 according to Muslim Shariat Laws and both of them were leading conjugal life in village murcha, P. S. Khargram, District - Murshidabad. O. P. No. 2 was a widow at the time of her marriage with petitioner No. 1 and had a son and two daughters out of her previous marriage. The petitioner No. 1 used to reside in Krishnanagar where he was posted and the O. P. No. 2 was residing in village Morcha. There was difference of opinion between the spouses. O. P. No. 2 filed a case against the petitioner No. 1 under Section 498a/325, i. P. C. being Kotwali P. S. Case No. 95/2005 dated 06. 4. 2005. Charge sheet was issued on 15. 4. 2005 being C. S, No. 80/2005 under Section 498a, I. P. C. The O. P. No. 2 complained of mental and physical torture. On 11. 4. 2005 o. P. No. 2 made an affidavit before the learned Sub-Divisional Judicial magistrate, Krishnanagar stating that she had no complaint against her husband whatsoever. In the affidavit she stated that when she went to krishnanagar, a person took her signatures on some blank sheets and taking advantage of that filed a case against her husband. She also stated that her husband never committed torture upon her physically or mentally and that they had been leading a happy conjugal life. On 9th June, 2005 the petitioner No. 1 was discharged by the learned S. D. J. M. , Krishnanagar on the basis of affidavit made on 11. 4. 2005. Thereafter the petitioner No. 1 divorced to the O. P. No. 2 on 04. 8. 2005 and communicated the same by registered post with A. D. dated 13. 8. 2005 and 18. 8. 2005, but, the registered letter dated 18. 8. 2005 came back to the petitioner as 'refused' by the O. P. No. 2. O. P. No. 2 filed a case in the Court of Chief Judicial Magistrate, krishnanagar on 29. 8. 2005 under Section 498a/34, I. P. C. against the petitioners, but, no effective step was taken thereof. The O. P. No. 2 also filed a case in the Court of Additional Chief Judicial Magistrate, Krishnanagar against the petitioner No. 1 under Section 125, Cr. P. C. being case No. 481 of 2004. The O. P. No. 2 also filed another case under Section 498a/34, i. P. C. (G. R. No. 1343 of 2005) Hnaskhali P. S. Case No. 281 dated 06. 12. 2005, in the Court of Additional Chief Judicial Magistrate, Ranaghat. The allegations raised against the petitioners are false and concocted. The continuance of proceeding under Section 498a/34 I. P. C. in Hanskhali P. S. Case No. 281 dated 06. 12. 2005 is unwarranted and will be the abuse of the process of the Court. In view of the discharge of the petitioner No. 1 from earlier case being Kotwali P. S. Case No. 95 of 2005, the instant case being hanskhali P. S. Case No. 281 dated 06. 12. 2005 under Section 498a/34, i. P. C. cannot proceed and the same is not maintainable. Under the circumstances, the petitioner has filed the instant application praying for quashing of the proceeding under Section 482, Cr. P. C.

(3.) MR. Mukherjee appearing on behalf of the petitioners submits that the earlier case ended in discharge on 09. 6. 2005 passed by learned s. D. J. M. , Krishnanagar in G. R. Case No. 408 of 2005, Kotwali P. S. Case no. 95 of 2005. Mr. Mukherjee submits that the divorce was effected on 04. 8. 2005 when the factum of divorce was communicated to O. P. No. ,2 herein. Mr. Mukherjee contends that same allegation as made in the earlier complaint was raised against the petitioner No. 1 herein in the subsequent petition of complaint which was sent to P. S. under Section 156 (3), Cr. P. C. on 06. 12. 2005 bearing Hanskhali P. S. Case No. 281 dated 06. 12. 2005. Mr. Mukherjee contends that there is no allegation under Section 406, I. P. C. in the instant case and, moreover, there is suppression of material facts in the subsequent complaint being Hanskhali P. S. Case No. 281 date 06. 12. 2005. Mr. Mukherjee contends that when the petitioner No. 1 was discharged in the earlier case which ended in his discharge on 09. 6. 2005, the subsequent case on the same allegations bearing Hanskhali P. S. Case no. 281 dated 06. 12. 2005 is not maintainable. Regarding the suppression of material facts viz. discharge of the petitioner No. 1 in the earlier case, mr. Mukherjee has referred to and relied on the decisions reported in 2005 scc (Cr) 1322 (MCD v. State of Delhi and another) para 21 and (2004)7 scc 166 [s. J. S. Business Enterprises (P) Ltd. v. State of Bihar and others] para 13.