Page No.# 1/7 GAHC010128152018 2020:GAU-AS:12794 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./568/2018 BHOGIRAM DUTTA AND ANR. S/O LATE BHEKULA DUTTA, R/O VILLAGE DAKUA, PO DHALPUR, PIN- 784165, PS BIHPURIA, DIST. LAKHIMPUR, ASSAM 2: URMILA DUTTA W/O SRI BHOGIRAM DUTTA R/O VILLAGE DAKUA PO DHALPUR PIN-784165 PS BIHPURIA DIST. LAKHIMPUR ASSA VERSUS THE STATE OF ASSAM AND ANR. (D) REPRESENTED BY PP, ASSAM 2:MINA DUTTA W/O LATE AKHIM DUTTA R/O VILLAGE GENDHALI NOWBOICHA PS NORTH LAKHIMPUR PO NOWBOICHA PIN-787023 DIST. LAKHIMPUR ASSA Advocate for the Petitioner : MR. R K DUTTA, MS. N SAIKIA,MR. U J SAIKIA Advocate for the Respondent : PP, ASSAM, Page No.# 2/7 Linked Case : Crl.Pet./82/2015 BHOGIRAM DUTTA and 2 ORS S/O LT. BHEKULA DUTTA 2: SMTI URMILA DUTTA W/O SRI BHOGIRAM DUTTA 3: SRI RAJU DUTTA S/O BHOGIRAM DUTTA ALL R/O VILL- DAKUA P.S. BIHPURIA DIST. LAKHIMPUR ASSAM. VERSUS THE STATE OF ASSAM and ANR 2:SMTI PADUMI DUTTA W/O LT. LAKHI DUTTA R/O VILL- GONDHALI NOWBAICHA P.S. NORTH LAKHIMPUR DIST. LAKHIMPUR ASSAM. ------------ Advocate for : MR.U J SAIKIA Advocate for : MR.M K DUTTAR-2 appearing for THE STATE OF ASSAM and ANR BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER Date : 22.01.2025 1. Heard Mr. RK Dutta, learned counsel for the petitioner. Also heard Mrs. R Devi, learned legal aid counsel for the respondent No.2/informant. Also heard Mr. P Borthakur, learned Addl. PP, Assam. 2. These two criminal petitions are taken up together for final disposal as dispute is between the same parties and arose out of the same incident. 3. Criminal Petition No.568/2018 is filed seeking for quashment of the Page No.# 3/7 proceeding of CR Case No.119/2017, pending trial before the SDJM, Lakhimpur, North Lakhimpur as well as the order of cognizance dated 16.10.2017, whereby, the cognizance of offence under Section 406 IPC was taken. 4. The subject matter of challenge made in Crl.Pet No.82/2015 is for quashment of proceeding of GR Case No.71/2014, wherein the cognizance of offence under section 498A IPC was taken. 5. The brief litigation history as discernible from the complaint petition as well as from the FIR dated 15.01.2014 lodged by one Padumi Dutta, the mother of the respondent No.2 goes to show the following facts: I. On 15.01.2014, the mother of the respondent No.2, namely, Padumi Dutta lodged an FIR before the officer in charge, Dholpur PS outpost, inter alia alleging that her daughter Mina Dutta married one Ashim Dutta, however, the husband and other relatives, more particularly, the mother in law, father in law and the brother in law of her daughter started torturing her physically and on 13.01.2014, she came to know that her daughter was assaulted by the accused persons and since then she was missing. II. On the basis of such FIR Bihpuria PS Case No.16/2014 under section 498 A IPC was registered. During the course of investigation the statement of the victim was recorded under section 164 Cr.P.C. In her statement recorded under section 164 Cr.P.C, the victim stated that her mother in law and wife of her brother in law asked her to go away from the house of her brother in law. And on the day of Magh Bihu (uruka), when she was working in the place of banquet of Dakuwa village, her brother in law, namely, Muhim Dutta asked her to go to the house of her father in law and when she went there, her brother in law Raju Dutta, father in law and mother in law driven her out. Thereafter she took shelter in her father’s house. III. After completion of the investigation and on the basis of the materials collected, the investigating officer filed a closure report and relevant portion of Page No.# 4/7 the said closure report is quoted herein below: “During investigation I visited the place of occurrence and interrogated the informant and other witnesses. Though in the FIR, the informant has alleged that her daughter Mina Dutta, W/o Sri Ashim Dutta, resident of Dakua P.S Bihpuroa was tortured by her husband, father in law, mother in law and brother in law physically and mentally demanding dowry but during investigation no evidence has been found against the accused person as alleged in the FIR by the informant. During investigation it is revealed that on last 13/1/14, the day of Magh Bihu, at about evening 7 pm, the daughter of the informant Smti. Mina Dutta, while working with the community people in the place of preparing Magh Bihu Banquet at Namghar in front of their house, she has confrontation with her husband Ashim Dutta for something and came back home and remain inside the room for the night without going to take food in the Maji Banquet and on the next day morning went out to Narayanpur and took shelter in a house of a person. As Mina Dutta, daughter of the informant did not go to her home in the occasion of Bihu, she out of distress went to her daughter’s house at Dakua and as she did not find her daughter at home, due to misunderstanding, in that aspect she lodged FIR against the accused in the police out post. In the statement of the victim of this case under section 164 Cr.P.C., nothing has been mentioned regarding demand of dowry or physical and mental torture against the accused persons. On the other victim Mina Dutta and her husband Ashim Dutta are staying separately and their three brothers and mother and father are also staying separately. And youngest brother accused Raju Dutta named in the FIR is staying separately with his family in a different village and he has not much relation with his family. Though victim Mina Dutta stated that she has been driven out from the house by mother in law and father in law and brother in law but during investigation no direct or indirect evidence was found against the accused. So it is seen that the informant lodged the case by exaggerating the facts on the basis of the saying of others. This case has been discussed with the officer in charge and after examining the case, he has directed to submit Final Report stating that the case was lodged under section 498(A) of IPC due to misunderstanding. I also submitted Final Report stating that the case was lodged under section 498(A) of IPC due to Page No.# 5/7 misunderstanding instead of keeping it pending for investigation unnecessary. I pray before the Hon’ble Court to acquit the arrested accused Raju Dutta in connection with the aforesaid case and forwarded to the Hon’ble Court and other accused person from this case. Along with this one doctor report, one sketch map of the place of occurrence, statement u/s 164 give before the Hon’ble Court, one WT are enclosed herewith. The result of the investigation was communicated to the informant by WT. IV. Such final report was submitted on 30.01.2014. Thereafter, on 24.03.2014, the victim filed yet another complaint before the court of learned Chief Judicial Magistrate against her father in law and brother in law on the same set of facts on the basis of which the earlier FIR was lodged by her mother with a further claim of certain streedhan which was allegedly under possession of the said accused person. The said complaint was registered as CR Case No.32/2014. V. The learned trial court after examination of three witnesses under section 200 Cr.P.C., refused to take cognizance and the two accused persons i.e, the father in law and brother in law of the complainant and accordingly they were discharged by an order dated 20.09.2014. The aforesaid order had attained finality, inasmuch as admittedly, the said order have not been put to challenge in higher forum. VI. Thereafter, on 07.08.2014, the mother of the victim filed an objection petition before the learned Chief Judicial Magistrate, North Lakhimpur in GR Case No.71/2014. In the aforesaid petition which was registered as Pet No.91/2014, the mother of the victim alleged that she is not satisfied that there is no evidence in the above referred case and evidence is there and she will be able to produce evidence and accordingly, requested to proceed with the case. VII. The learned Magistrate by order dated 07.08.2014, accepted the prayer of the informant/mother of the victim and passed the following order which is quoted herein below. Such order is under challenge in Crl.Pet No.82/2015. Page No.# 6/7 “7.8.2014: The complainant is present and filed a petition No.91/14 dtd. 7/8/14, raising objection of accepting the FR. Heard Ld. Counsel for the complainant. Register a complaint case. The FR is not accepted. The cognizance is taken. The case is transferred to the court of Ld. S Ahmed, JMFC for disposal.” 6. From the materials available on record, more particularly, the statement of the victim recorded under section 164 Cr.P.C., in connection with GR Case No.71/2014 and the facts narrated in the FIR do not disclose any offence under section 498 A IPC. Therefore, the conclusion of the investigating authority in submitting the closure report could not have been rejected by the learned Magistrate under its order dated 07.08.2014, more particularly in the manner the said order has been passed. 7. The learned Magistrate did not even consider the existence and/or absence of material to proceed against the accused person. Such course of action cannot be accepted to be a proper course of action, inasmuch as such order should be supported with reasons. The fact also remains that on same set of incident, the complaint case filed by the victim registered as CR Case No.32/2014, the accused therein, more particularly, the father in law and brother in law of the victim had already been discharged after taking note of evidence laid by the complainant under section 200 Cr.P.C. Therefore in the considered opinion of this court, the order dated 07.08.2014 is not sustainable under law. 8. Now coming to the third complaint which is under challenge in Crl. Pet 568/2018 it goes to show that the allegation made in this petition complaint petition which was registered as CR Case No.119/2017 filed by the victim, same set of allegation has been raised. 9. Though cognizance of offence under section 406 IPC was taken, however, there is no whisper in the complaint as well as in the deposition of the witnesses recorded under section 202 Cr.P.C as regards any misappropriation of any streedhan except giving a list of streedhan in the complaint petition. Page No.# 7/7 10. In view of the aforesaid, this court is of the view that not only no case under section 406 IPC is made out but such prosecution lodged is nothing but abuse of the process of law. 11. In view of the aforesaid, this court also finds that the petitioners i.e., the mother in law and father in law of the victim cannot be allowed to be prosecuted under section 406 IPC in absence of any of the averments or statements alleging any of their role in committing any offence under section 406 IPC. 12. Accordingly both the criminal petition stands allowed by setting aside and quashing the proceeding in CR Case No.119/2017, pending in the court of SDJM, Lakhimpur, North Lakhimpur and the proceeding in CR(W) Case No.99/2014, pending in the court of learned JMFC, North Lakhimpur. JUDGE Comparing Assistant