SUKHAMAY MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioners filed an application under section 239 CrPC before the learned Judicial Magistrate 1st Court Barasat in G.R. Case No. 2160 of 2010 for discharging them from the aforesaid case under section 498A/323 IPC. After hearing the learned counsel for the parties, the trial Court, by a reasoned order dated 24/5/2016 rejected the said application and posted the case for framing of charge.

(2.) Aggrieved, the petitioners have assailed the impugned order by the present revisional application.

(3.) Learned counsel appearing for the petitioners strenuously argued that the materials on record do not support the allegation for the offences under section 498A/323 IPC against the petitioners. Mr. Bhakat pointed out that at the instance of the opposite party No. 2 herein the criminal proceeding being G.R Case No. 2160 of 2010 under section 498A/323 was initiated against the petitioners which culminated in the submission of the charge-sheet. In the aforesaid proceeding, in her petition of complaint filed on 18/5/2010 the wife/opposite party No. 2 alleged that on 25/3/2010 she was assaulted and driven out of her matrimonial home by the accused/petitioners herein whereas in her application under section 125 CrPC filed on 7/2/2004 before the learned Chief Judicial Magistrate Barasat registered as M. Case No. 62 of 2004 the wife/opposite party no. 2 alleged that she was driven out of her matrimonial home in the year 1998 and since then she has been residing separately. Learned counsel for the petitioner sought to impress that there is no averment anywhere in the petition of complaint that after being driven out in the year 1998 the opposite party no. 2/ defacto complainant was reunited with her husband (petitioner no. 1herein) and thereafter she was driven out again from her matrimonial home in the year 2010. It has further been pointed out that by an order dated 24/11/2009 passed in a proceeding under section 127 CrPC the amount of maintenance was enhanced from Rs. 1500/- per month to Rs. 5000/- per month and the opposite party no. 2/defacto complainant had been receiving the said enhanced amount of maintenance. Mr. Bhakat argued that as the defacto complainant/opposite party no. 2 has been residing separately since 1998, the impugned criminal proceeding of the year 2010 is entirely false and vexatious instituted with a view to harass the petitioners. The learned Magistrate was therefore not justified in rejecting the petitioners' prayer for discharging them from the impugned proceeding. Learned counsel appearing for the State countered that the materials collected during investigation including the statement of the defacto complainant and her daughter recorded under section 161 CrPC make out a prima facie case against the petitioners.