Ghanashyam Adhikary Vs The State of West Bengal & Anr.

Ghanashyam Adhikary Vs The State of West Bengal & Anr.

Citation	CRR 2614 of 2019
Date  of Judgement	02 February, 2023
Court	High Court at Calcutta
Case type	Criminal Revision
Petitioner	Ghanashyam Adhikary
Respondent	The State of West Bengal & Anr.
Bench	The Hon’ble Justice Shampa Dutt (Paul)
Jurisdiction	Criminal Revisional Jurisdiction
Acts Referred	Code of Criminal Procedure, 1973.Indian Penal Code

Introduction

The present case is a revision filed against the order of the Additional Chief Judicial Magistrate, Uluberia dated 02 October 2018 whereby he was pleased take the cognizance of a case regarding dowry death. In that case the petitioner was one of the accused.

Facts of the case

Sangita Nanda, daughter of de facto complainant, was married to Shyamal Adhikary on 8 December 2011. The de facto complainant alleged that one lakh cash, five bhori gold and furniture etc. were given as dowry in her marriage. He further alleged  that she was pressurized by her husband to get further dowry. It was also alleged that her salary was completely taken from her and she was abused, economically. She was also severely tortured and harassed. Owing to the torture and harassment she hanged herself in the kitchen. Following her death, her father filed a case at Amta police station. The same was registered as Case no. 283 of 2018 under Sections 498A, 304B, 302, 343 of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act, against the petitioner in the present case and two others.

The petitioner is the brother of the husband of the deceased. Charge sheet was filed by the police under the aforementioned sections, against the petitioner and two others.

The Additional Chief Judicial Magistrate, Uluberia by the order dated 02 October 2018 had taken the cognizance  of the case under the same sections as mentioned earlier against the petitioner and two others.

Consequently, the Additional Chief Judicial Magistrate has committed the case to the Additional Sessions Judge, 1^st court, Uluberia.

Contentions of the petitioner

1. There was no communication between the petitioner and deceased family.
2. FIR and Charge sheet failed to disclose any role of the petitioner in the death of the deceased.
3. The offence is not covered by section 304B, since the death was occurred after 11 years of marriage.
4. Chances of the petitioner getting convicted with the available material is very less.

Issue

1. Whether the order of the Additional Chief Judicial Magistrate is liable to be quashed?

Judgement

The High court had held that the matter of framing charges was pending before the learned Additional Sessions Judge and the same has to be left to him. The court had discussed at length, the provisions of CrPC dealing with the framing of charge and discharge in sessions trial before the Sessions Judge.

In Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey & Ors., the Supreme court had held that the purpose of framing charge is inform the accused the clear and unambiguous and precise nature of the allegations made against him.

In Union of India v. Prafulla Kumar Samal and another, the Supreme court had held that the Judge while framing charges must weigh the evidence against the accused and  whether a prima facie case is made against the accused or not. The Judge must not act as a mere mouth piece of the prosecution while framing charge.

In Dipakbhai Jagdishchndra Patel v. State of Gujarat, the supreme court had held that the Judge  before framing charge make a prima facie presumption of guilt. But the presumption of guilt here must not be equated to the presumption under the inquisitorial system as in the case of France. The presumption here in this case is only up to the framing of charge.

In Sajjan Singh v. CBI, it was held that the judge must use his judicial mind while framing charges  rather than merely acting as a mouthpiece of the prosecution.

The High Court had discussed several other cases similar to the ones mentioned above.

Further on the issue of inherent power of the High court under S.482 of the CrPC the Court has discussed the Bhajan lal’s case whereby the Supreme Court has given an inexhaustive list of categories upon falling on which the High Court may quash an FIR under application under S.482 or A. 226 of the Constitution. The SC has given the following seven categories:

1. The allegations made in fir, even prima facie and taken in their entirety won’t constitute an offence or case against the accused.
2. Where the allegations in the FIR don’t constitute a cognisable offence, justifying investigation by the police under S. 156(1).
3. Where the uncontroverted allegations in the fir or complaint don’t disclose the commission of an offence.
4. Where the facts of the complaint don’t constitute a cognisable offence but a non cognisable offence.
5. Where the allegations are so unjust and so improbable that no prudent person can reach to a conclusion that the offence could have been committed.
6. Where there is an express legal bar on instituting such proceedings.
7. Where the criminal proceedings are done with mala fide intention and ulterior motive.

The High court had disposed  of the present case with the above  observations.

Conclusion 

In the present case the High court had  extensively discussed the provisions regarding the framing the charge under CrPC. The court held that the framing of the charge is not a mere mechanical act of transferring the allegations of the prosecution into charge. It involves the judicial mind of the judge. The judge must make prima facie evaluation regarding  the presumption of guilt. 

This case Analysis is done by Avula Veerabhadra Reddy, a Third year student of Central University of South Bihar.