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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Hasin Jahan - Appellant
Versus
State of West Bengal & Others - Respondent
CRR. No. 247 of 2020
Decided On : 28-03-2023
CRIMINAL REVISION - 498A IPC - SECTION 41, 87, 88 CRPC - WARRANT OF ARREST - ISSUE OF WARRANT - SUMMONS - BAILABLE WARRANT - NON-BAILABLE WARRANT - DISCRETION OF THE COURT - FACTORS TO BE CONSIDERED - REVISION AGAINST ORDER OF MAGISTRATE - SECTION 397 CRPC - INTERLOCUTORY ORDER - MAINTAINABILITY OF REVISION - INTEREST OF PUBLIC JUSTICE - GROSS MISCARRIAGE OF JUSTICE - ORDER OF STAY - LEGALITY - NATURAL JUSTICE - ORDER OF SESSION JUDGE - INTERFERENCE.
Fact of the Case:
Petitioner, Mohammad Shami's wife, filed a complaint under Sections 498A and 354 of the IPC against her husband and his family members alleging cruelty and assault. The Magistrate issued a warrant of arrest against the accused, considering the nature of the offense and the possibility of the accused absconding. The accused challenged the Magistrate's order before the Sessions Judge, who granted a stay on the proceedings until the revision was adjudicated on merit.
Finding of the Court:
The High Court held that the Magistrate's order issuing a warrant of arrest was not in accordance with the law and the principles of natural justice. The Court relied on the Supreme Court's judgment in Satender Kumar Antil v. Central Bureau of Investigation, which laid down guidelines for issuing warrants of arrest in cases under Section 498A IPC. The Court emphasized that the Magistrate should have considered the factors mentioned in the guidelines, such as the nature of the offense, the possibility of the accused absconding, and the accused's roots in the community, before issuing a warrant of arrest.
Issues: 1. Whether the Magistrate's order issuing a warrant of arrest was in accordance with the law and the principles of natural justice? 2. Whether the Sessions Judge's order granting a stay on the proceedings was justified?
Ratio Decidendi: 1. The Magistrate's order was not in accordance with the law as it did not consider the factors laid down by the Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation for issuing warrants of arrest in cases under Section 498A IPC. 2. The Sessions Judge's order granting a stay on the proceedings was justified as the Magistrate's order was not in accordance with the law and the principles of natural justice.
Final Decision: The High Court dismissed the revision petition and upheld the Sessions Judge's order granting a stay on the proceedings. The Court directed the trial court to comply with the judgment and proceed with the case in accordance with the law.
JUDGMENT
1. The present revision has been preferred praying for quashing of the order dated 09.09.2019 passed by the Learned Session Judge, South 24 Parganas in Criminal Motion no. 339/2019 arising out of Jadavpur Police Station Case No. 82/18 dated 08.03.2018 under Sections 498A, 354 IPC which is pending before the Learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas.
2. The petitioner’s case is that she was married with Mohammad Shami who by profession is a Cricketer and a regular member of the Indian National Cricket Team, on 07.04.2014 in presence of both sides guardians, friends, relatives and well-wishers at 128, Prince Golam Hossain Shah Road, “Senkuthi”, 1st Floor, Flat No. 1-B, P.S. – Jadavpur, Kolkata – 700 032.
3. After her marriage she along with her husband started to live their conjugal life and out of their wedlock, one girl child was born on 17.07.2015.
4. That after the birth of their child she came to know that her husband is a womanizer and he maintains steady sexual relation with many women. It is alleged that when the petitioner protested and raised her voice for such type of activities, Opposite Party No. 3/her husband assaulted the petitioner on 23.02.2018.
5. That in spite of being brutally assaulted she tried her best to adjust with her husband, only with the hope, that Opposite Party No. 2 will realize his fault and they will live a happy conjugal life with their children.
6. But her husband did not change his behavior. He also stopped giving the petitioner’s day to day expenses. Moreover he gave false declaration in some news channels about the petitioner and made baseless allegations against her, which is very harmful for the petitioner’s reputation.
7. The petitioner finding no other option has filed a written complaint with Jadavpur police station being Jadavpur P.S. Case no. 82/19 dated 08.03.2018 under Sections 498A/354 of the IPC, which ended in charge sheet.
8. The Learned Additional Chief Judicial Magistrate, Alipore on 29.08.2019 issued Warrant of Arrest against the Accuseds/Opposite parties.
9. One of the reason given by the Magistrate for issuing the warrant of arrest instead of summons, was that as the Opposite Party No. 3/Mohammad Shami (husband of the petitioner) being a cricketer in the Indian team, a bad message would go to the society specially to the petitioner, who may think she has been prejudiced as the Opposite Party No. 3 is a high profile accused.
10. The said view of the Magistrate is against the guidelines laid down by the Supreme Court in Satender Kumar Antil vs Central Bureau of Investigation, Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021, where in the Court on 11 July, 2022, held:-
“25. …………………………………………
11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:-
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded t
In cases under Section 498A IPC, the Magistrate should consider the factors laid down by the Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation before issuing a warrant of arres....
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