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The Indian Penal Code, 1860
Section 498A in The Indian Penal Code, 1860
Section 34 in The Indian Penal Code, 1860
Article 20(3) in The Constitution Of India 1949
Section 420 in The Indian Penal Code, 1860

Kolkata High Court (Appellete Side)
3619/2012 on 29 January, 2013
Author: Kanwaljit Singh Ahluwalia

1

58 29.01.2013 CRR 3619 of 2012 akd

In the matter of : Nazrul Mondal.

... Petitioner.

Mr. Rajib Kumar Basu.

... for the petitioner.

Mr. Prabir Majumder.

... for the opposite party no. 2.

Mr. Madhusudan Sur.

... for the State.

Heard the learned counsel for the petitioner.

The present petition has been filed under Sections 301/397/482 of the Code of Criminal Procedure, 1973 praying that the proceedings arising out of Chapra Police Station Case No. 453 of 2012 dated 30th May, 2012 under Sections 498A/34 of the Indian Penal Code be quashed on the ground that petitioner was earlier tried on the same set of allegation and was acquitted.

Briefly stated, the petitioner was married with Sahana Parvin and both resided as "husband and wife". Sahana Parvin had lodged Chapra Police Station Case No. 239 of 2009 dated 5th June, 2009 under Sections 498A/420 of the Indian Penal Code corresponding to G. R. Case No. 1375 of 2009. The petitioner was tried in the aforesaid case along with other relations. Vide a judgement dated 8th August, 2012 passed by the 4th Judicial Magistrate, the petitioner has been acquitted.

Learned counsel for the petitioner submits that once petitioner was acquitted for offence under Section 498A of the 2

Indian Penal Code, he cannot be subsequently tried for the same offence as it amounts to double jeopardy and Section 300 of the Code of Criminal Procedure and Article 20(3) of the Constitution of India prohibit putting any person on the trial for the same offence for the second time.

To controvert this, learned counsel for the State has submitted that it is evident from the judgement rendered by the court below that aggrieved wife, de facto complainant, had not deposed against the petitioner. It is submitted that it has been stated in the first information report that the aggrieved wife was made to believe that entire matrimonial dispute has been amicably resolved and after the decision of the case she started residing with the husband and thereafter once acquittal was secured, she was again harassed, mal-treated and turned out of the matrimonial home.

Learned counsel or the de facto complainant has placed on record the certified copy of the statement made by the de facto complainant and the same read as under :-

"I have filed this case. This is my written complaint, It is written by me and is my signature marked Exhibit

1. I had filed this case against my in-laws. I have filed this case against my husband. Recently I have no allegation against my in-laws, and I am residing with my in-laws."

Last line of the deposition of the de facto complainant appearing as P.W. 1 is - 'I am residing with my in-laws.', which 3

was not challenged in the cross-examination and was accepted by the petitioner. Once de facto complainant was residing with the petitioner, subsequently cause of action has arisen to lodge the present complaint against the petitioner, while she was maltreated and harassed. The offence under Section 498A of the Indian Penal Code in the matrimonial home is a recurring offence. If later wife is residing with her husband and is maltreated and is subjected to cruelty, offence again will occur. It is a case where aggrieved wife was deceived to believe that petitioner will rehabilitate her in the matrimonial home, she should withdraw the case. Once being an Indian wife, being orthodox and traditional, she accepted the promise and the petitioner after having earned acquittal again turned the aggrieved wife out of the matrimonial home. Anything done to the wife after the acquittal, itself constitutes offence under Section 498A of the Indian Penal Code.

The petitioner has not only perpetuated fraud upon his wife, but on this Court too. He without disclosing this petition that in the deposition opposite party has stated that she was living with her in-laws, has obtained order of stay dated 12th October, 2012. Petitioner has not come to this Court with clean hands.

In view of the above, the present petition is disposed of without causing any interference. However, it is made clear that anything said herein shall not constitute as expression on the merits of the case.

Photostat certified copy of this order, if applied for, be 4

supplied on priority basis.

( KANWALJIT SINGH AHLUWALIA, J.)