Shri Mohammed Asraf Ali v. The State And ANR.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CRR/6/2023 Shri Mohammed Asraf Ali Vs.

The State and another Mr. Gopala Binnu Kumar ... for the petitioner Mr. Salim Mohammed ... for the State Mr. KMB Jayapal Mr. Pradeep Singh ... for the opposite party No. 2 February 23, 2023 [SR] Item No.16 Heard Mr. Gopala Binnu Kumar, learned counsel for the petitioner, Mr. Salim Mohammed, learned Public Prosecutor and Mr. Pradeep Singh, learned counsel for the victim.

This petition under section 482 Cr.P.C has been filed by the petitioner (husband) to quash the order dated 13.09.2022 passed by the learned Additional Sessions Judge, Port Blair in Sessions Case No. 31 of 2017 refusing to discharge the petitioner on the basis of petition filed by him under section 227 Cr.P.C.

The present petitioner along with his father and mother was charged-sheeted for the offence under sections 498A/313/504/323 of the IPC.

Some days after the marriage, the present opposite party No. 2 (wife) lodged FIR in Bamboflat Police Station alleging that from day one of the marriage, the petitioner and her mother-in-law started torturing her physically and

mentally and on one occasion, her husband along with her mother-in-law gave some tablet to her causing miscarriage. During investigation, the Investigating Officer laid hands on some medical papers showing pregnancy of the victim (wife) in the year 2014.

It is fairly admitted at the bar that, before the marriage, the petitioner and the victim had consistent love affairs without knowledge of the petitioner's parents. In course of such love affairs, there was physical relationship between them and the present petitioner had impregnated the victim prior to the marriage, which was terminated by mutual consent of the petitioner and the victim.

This Court is however, not concerned in the present case with the aforesaid facts. From the materials on record, it is clearly found that there is omnibus allegation consisting of one sentence only in the entire statement of the victim recorded under section 161 Cr.P.C so far as the offence under section 313 IPC is concerned. In the said sentence in her statement under sections 161 Cr.P.C., the victim has stated that the petitioner and his mother gave her some tablet and taking that tablet, she miscarried. Learned Public Prosecutor fairly submits that there is nothing more in the statement of the victim recorded under section 164 Cr.P.C in this regard.

The parents of the petitioner had also filed petition jointly before the learned trial court under section 227 Cr.P.C. That petition being rejected, they moved this Court under section 482 Cr.P.C in CRR/009/2021. This Court vide

order dated 16.09.2021 quashed the order passed by learned Additional Sessions Judge.

The order of the Coordinate Bench stares at my face inasmuch as there is omnibus allegation against the present petitioner and his mother so far as the offence under section 313 IPC is concerned. When on the basis of selfsame evidence, one of the accused has been discharged, the obvious question that arise, whether the co-accused sailing in the same boat can be prosecuted further on the basis of the selfsame evidence and whether it would not be a misuse of the process of the Court.

In the impugned order passed by learned Additional Sessions Judge, I find that he dismissed the separate petition filed by the present petitioner under section 227 Cr.P.C. on the ground that there are sufficient materials /grounds to proceed against the present petitioner.

As discussed supra, except the lone sentence regarding the offence under section 313 IPC against this petitioner and his mother, there is no other materials to prove such fact. There is also no corroborative medical evidence on this aspect of the allegation.

It is argued by Mr. Salim Mohammed, learned Public Prosecutor and Mr. Pradeep Singh, learned counsel for the OP No. 2 that the victim at the time of trial may come forward to adduce more oral evidence on this aspect and there may be possibility of production of documentary evidence also. Charge sheet has already been filed. There is no possibility, therefore of collection of evidence by the

Investigating Officer now. So there is no chance of documentary evidence coming forth at the time of trial. Even I take into consideration the submission of learned Public Prosecutor and the learned counsel for the OP No. 2/victim, no improvement can be made by the victim at the time of trial and if such improvement is made, that shall be hit by the provision contained in section 145 of the Evidence Act read with explanation to section 162 Cr.P.C. If I look at the matter from the perspective of criminal jurisprudence, the credit of the victim as a witness in the trial may be impeached successfully, if improvement over the earlier statement is made by her by aid of section 155 of the Evidence Act.

The Court, therefore, at the time of framing of charge has to see what are the materials collected at the time of investigation and the Court is to find a prima facie case, the onus of finding of prima facie case at the time of framing of charge is not as onerous as that of finding of prima facie case at the time of granting of bail, on the basis of police papers without adding or subtracting anything to and from such police papers. Charge may also be framed for a given offence on the basis of strong suspicion to the effect that the accused might have committed the offence. But that strong suspicion should also be that of a prudent person. Taking into consideration the statements of the victim recorded under sections 161 and 164 Cr.P.C, as placed by Mr.

victim coupled with the order of the Coordinate Bench passed in CRR/009/2021 discharging the mother of the present petitioner against whom selfsame charge had been made by the victim, I feel persuaded to hold that the trial of the petitioner for the charge under section 313 IPC shall be an abuse of process of the Court and that is not in the best interest of justice. So far as other charges under sections 498A/504/323 IPC are concerned, I find substantive materials in the statement of the victim and other witnesses as borne in police record to proceed against the petitioner. In view of aforesaid discussion supra, I find that the impugned order of the aforesaid extent is modified and the trial court is directed to take appropriate steps for getting the petitioner tried for the offences under sections 498A/504/323 IPC by the competent court.

Accordingly, CRR/6/2023 is disposed of.

( Chitta Ranjan Dash, J.)