The court emphasized that at the stage of quashing FIR or complaint, it should not embark upon an inquiry into the probability, reliability, or genuineness of the allegations unless they are absurd or inherently improbable.

JUDGMENT

Bivas Pattanayak, J. - The present revisional application has been filed by the petitioner under Section 482 of the Code of Criminal Procedure for quashing of proceeding being Sessions Sl. No. 127 of 2009 pending before the Learned Additional Sessions Judge, 3rd Fast Track Court, Berhampore, Murshidabad (arising out of Hariharpara P.S Case no.39 of 1999 dated 15th April, 1999).

2.The factual matrix of the case is that the opposite party no.2-complainant filed an application under Section 156(3) of the Code of Criminal Procedure on 4th February,1999 before the Sub-divisional Judicial Magistrate, Berhampore with the following contentions:-

(i) The petitioner married the elder sister of opposite party no.2- complainant and after the demise of her elder sister, the petitioner married one Selina Bibi.

(ii)During subsistence of such marriage with Selina Bibi an affair grew up between the petitioner and the opposite party no.2-complainant which ultimately resulted in marriage between them on 07.04.1997.

(iii) Soon thereafter they started to reside as husband and wife in the house of the petitioner, however, she was inflicted with torture both physically and mentally and ultimately on 24.01.1999 she was driven out from the matrimonial home by the petitioner.

(iv)On the aforesaid allegation the petition of complaint was sent to Hariharpara Police Station for causing investigation and the FIR being no. 39 of 1999 came to be registered against the petitioner.

(v)Upon completion of investigation the Investigating Agency submitted charge sheet against the petitioner under Sections 498A/417/376/312 of the Indian Penal Code and under Section 498A against other accused persons.

(vi)Thereafter the case was committed to the court of Learned Sessions Judge which transferred the same to the court of Learned Additional Sessions Judge, Fast Track, 3rd Court, Berhampore for trial and disposal.

(vii)The learned trial court framed charges against the petitioner under Sections 498A/417/376/312 of the Indian Penal Code and under Section 498A of the Indian Penal Code against the rest accused persons facing trial.

3.Being aggrieved by and dissatisfied with the aforesaid proceeding the petitioner has preferred the present revisional application.

4.Mr. Ayan Basu, learned advocate appearing on behalf of the petitioner, firstly, submitted that as per FIR the alleged date of torture is on 24.01.1999, however on such date there was no existence of legal and valid marriage between the petitioner and opposite party no.2-complainant as 'talaq' was already pronounced on 14.01.1999.The petitioner, after registration of the FIR, filed a Civil suit before the Learned Civil Judge (Junior Division), 2nd Court, Berhampore, Murshidabad being Title Suit No. 113 of 1999 praying for declaration that no marital tie existed between the petitioner and opposite party no.2-complainant since 14.01.1999 when 'talaq' was pronounced and learned Civil Judge (Junior Division) while disposing of the injunction petition observed that prima facie there was no legal valid marriage between the parties since 14.01.1999 which is relevant in terms of Section 41 of the Evidence Act.

Therefore in the absence of legal and valid marriage no case under Section 498A of the Indian Penal Code can be made out and in support of his contention he relied on the decisions of the Hon'ble Supreme Court passed in Shivcharan Lal Verma and Another versus State of Madhya Pradesh, (2007) 15 SCC 369.

Further relying on the decision of the Hon'ble Supreme Court passed in Bhaskar Lal Sharma and another versus Monica, (2009) 10 SCC 604 he submitted the allegation made in the FIR does not enable one to arrive at an opinion that the petitioner has primarily committed such an offence under Section 498A of IPC.

The statement of other independent witnesses also does not disclose of any torture.

Secondly, he submitted that the FIR does not disclose any allegation of rape on promise of marriage or of any abortion of foetus concei