IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI (CRIMINAL REVISIONAL JURISDICTION)

Present:

THE HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE CRR 64 of 2024 Hitesh Sharma & Anr.

Versus The State of West Bengal & Anr.

For the Petitioners : Mr. Anand Bhandari Mr. Urgen Lama Ms. Mayank Bhandari For the State : Mr. Aditi Shankar Chakraborty Dr. Arjun Chowdhury For the Opposite party No. 2 : Mr. Sudipto Kumar Mazumder Mr. Subhankar Dutta Heard on : 12.03.2025 Judgment on : 25.03.2025 Dr. Ajoy Kumar Mukherjee , J.:

1. The petitioners herein being the husband and mother in law of the de facto complainant/opposite party have filed the instant application challenging the order passed by the judicial Magistrate Darjeeling on 11th December, 2023 in G.R. Case no. 93 of 2016, initiated under sections 498A/494/497/506/109 and section 34 of the Indian Penal Code. By the aforesaid order impugned, learned Court below has rejected the petitioners’ prayer for discharge filed under section 239 of the Code of Criminal Procedure.

2. Petitioners’ contention is that petitioner no.1 got married with the de facto complainant/opposite party no.2 herein on 7th March, 2000 and started their matrimonial life in Mumbai. The petitioner no.1 got an employment in Manila Philippines and shifted to Philippines along with his wife, and they started living in Philippines along with their daughters. It is alleged that few years thereafter complainant returned to her parental home in Darjeeling without the consent of the petitioner no.1 and thereafter in the month of September, 2009 she went to UK to pursue her MBA course, leaving behind their children with her parents in Darjeeling and subsequently returned to Darjeeling in 2015.

3. It is further submitted that the petitioner no.1 and de facto complainant staying separately since 2009 and a divorce proceeding is pending between the parties, since 2009 before learned Additional District Judge 3rd Court, Darjeeling. The instant FIR was lodged on March, 5, 2016 by the de facto complainant against her husband and both the parents in law, when the petitioner no.1 had returned from Manila, Philippines to Darjeeling to attend a matrimonial proceeding alleging interalia that on December, 21 2015, when the petitioner no.1 had gone to Darjeeling to attend court proceedings had also went to the opposite party no. 2’s house and had beaten her. However, the opposite party no.2 did not lodge the FIR immediately but waited till the next visit of the petitioner no.1 to Darjeeling and it was lodged only on March 5, 2016 when the petitioner once again came to Darjeeling from Philippines to attend matrimonial proceedings in Darjeeling and the petitioner was arrested on March, 7, 2016 and thereafter he was released on bail.

4. Petitioners’ further contention is during the pendency of the aforesaid criminal proceeding the opposite party no.2 on November, 2016 went to Philippines and lodged two complaints against the petitioner no.1, alleging domestic violence and concubinage. Said two complaints were dismissed by the Philippines court.

5. While arguing in support of discharge prayer of the petitioners, it has been contended that the FIR was lodged at a belated stage without disclosing any reason and the charge sheet also failed to disclose any prima facie case against the petitioners, nor police has collected any injury report of the alleged assault caused upon the opposite party no.2 at her parental residence in Darjeeling, when admittedly both the petitioner no.1 and opposite party no.2 are living separately for the last 14 years.

6. It is argued that the only allegation against the mother-in- law/petitioner no.2, who is now aged about 77 years is that she along with her husband in March, 2012 went to her parental residence in Darjeeling and persuaded her to give divorce to the petitioner no.1, so that he can be remarried, whereas the parents of the petitioner no.1 were in London, UK from January, 31st 2012 to July, 4th 2012, which the