General and omnibus allegations of cruelty and harassment under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prevention Act cannot be the basis for initiating criminal proceedings.

JUDGMENT

Shampa Dutt (Paul), J. - The revision has been preferred praying for quashing of the criminal proceeding in G.R. Case No. 1045 of 2016 arising out of Suri Police Station Case No. 380 of 2016 dated 03.11.2016 under Sections 498A/323/324/313/307/34 of the Indian Penal Code read with Section 3/4 of the Dowry Prevention Act along with charge sheet No. 97 of 2017 dated 30.04.2017 under Section 498A/323/34 of the Indian Penal Code, 1861 read with Sections 3/4 of the Dowry Prevention Act now pending before the learned Judicial Magistrate, 3rd Court, Birbhum, Suri.

2. The petitioner's case is that the marriage between the parties took place on 04.04.2009 and was registered on 22.04.2009. The relationship deteriorated after their marriage and opposite party no. 2/wife started misbehaving with the petitioner no. 1/husband. On 12.10.2015 she on her own left her matrimonial home. Inspite of their best efforts/attempts to bring her back, she refused to return. The petitioner no. 1 then filed a suit for divorce (Matrimonial Suit No. 941 of 2016) before the learned District Judge, Howrah. On the basis of a false complaint filed by the opposite party no. 2, Suri Police Station Case no. 380 of 2016 was started against the petitioners under Section 498A/323/324/313/307/34 of the Indian Penal Code.

3. Police filed charge sheet in the said case on 30.04.2017 and the learned Magistrate has taken cognizance. MAT Suit 941/2016 was then decreed exparte as the opposite party suddenly disappeared.

4. Mr. Shyamal Mukherjee, learned Counsel for the petitioners has submitted that the investigating officer refused to receive any documents from the petitioners and filed the charge sheet arbitrarily inspite of there being no prima facie case of a cognizable offence against the petitioners. It is further submitted that the initiation and continuation of the impugned proceedings has amounted to an abuse of process of the Court and law. The learned Magistrate committed error in law and procedure in taking cognizance on the basis of the said charge sheet. Before taking cognizance on the basis of charge sheet under Section 498A/323/34 IPC & 3/4 of D/p Act, the learned Magistrate should have considered that when the petitioners no. 2 and 3 never spent a single night with the petitioner no. 1 and the opposite party no. 2, allegation under Sections 498A/323/34 of the Indian Penal Code cannot sustain at all. Thus, the impugned proceeding against the petitioners is liable to be quashed. The allegation and the materials furnished in support of such allegations do not disclose the commission of any of the offences as alleged, by the petitioners and in view of the same the order passed by the learned Magistrate is not maintainable in law and liable to be set aside and/or quashed. The impugned order passed by the learned Magistrate taking cognizance of the charge sheet is otherwise bad in law and also liable to be set aside and/or quashed.

5. Inspite of service the opposite party has chosen not appear in this case too. (Other being the MAT suit).

6. It is further submitted that the opposite party no. 2 has now got married again (some photographs have been produced in Court).

Section 498A IPC lays down:-

'498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.-For the purpose of this section, 'cruelty' means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person rel