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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Before:
The Hon’ble Justice Ananda Kumar Mukherjee
C.R.R. 1114 of 2010
Malancha Mohinta
-Vs-
Dipak Mohinta
For the Petitioners: Mrs. Subhasree Patel, Adv.
Mr. Rupraj Banerjee, Adv.
For the Opposite Party: Mr. Jayanta Narayan Chatterjee, Adv.
Mr. Apalak Basu, Adv.
Ms. Moumita Pandit, Adv.
Mr. Supreem Naskar, Adv.
Ms. Jayashree Patra, Adv.
Ms. Subhadeep Koley, Adv.
Heard on : 15.02.2022 .
Judgment on: 23.03.2022.
Ananda Kumar Mukherjee, J. :-
1. This revisional application under section 482 of the Code of Criminal
Procedure, 1973 is a fall out of a matrimonial discord between the petitioner
and the opposite party. The petitioner/wife by filling this application under
section 482 has sought for quashing of the proceeding in Case No. AC 968 of
2009 (TR No. 225 of 2009) under section 500 of the Indian Penal Code, filed by
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the opposite party against the petitioner, now pending before learned Judicial
Magistrate 9th Court, Alipore, South 24 Parganas.
2. A synoptical resume of petitioner’s case is that, the petitioner got married
to the opposite party on 29.11.1990 according to Hindu Rights and Customs.
Soon after the marriage the opposite party subjected the petitioner to physical
and mental torture on the demand of dowry from her paternal house. On
15.11.1994 petitioner gave birth to a female child. She made constant effort to
adjust with the opposite party to maintain a peaceful conjugal life but the
opposite party continued to torture her and on 25.04.1997 the petitioner along
with her minor child were driven out from her matrimonial home on being
abused and assaulted by the opposite party and his elder brother.
3. The petitioner lodged a written complaint on 25.04.1997 before the
Office-in-Charge at Behala Police Station which was registered as Behala Police
Station Case No. 248 (4) 1997, under section 498A of the Indian Penal Code. In
connection with the said case opposite party was arrested on 27.04.1997. On
completion of investigation police submitted charge sheet No. 105 dated
04.06.1997 against the opposite party/husband and his elder brother. Learned
Sub Divisional Judicial Magistrate at Alipore took cognizance of the offence and
transferred the case to the learned Judicial Magistrate 9th Court, Alipore.
4. In the meantime, the opposite party filed a suit against the petitioner
under section 9 of the Hindu Marriage Act, praying for a decree of restitution of
conjugal rights. Subsequently, opposite party amended the prayer and sought
for a decree of divorce against the petitioner under section 13(1)(ia) and
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13(1)(ib) of the Hindu Marriage Act, pending before learned Additional District
Judge, 1st Track Court to South 24 Parganas. It is the further case of the
petitioner that on 16.04.2007 the Matrimonial Suit No. 18 of 2006 was
dismissed with an observation that the opposite party cannot be permitted to
take advantage of his own wrong, causing serious disruption in the
matrimonial relationship and was not entitled to a decree of divorce.
5. The actual dispute in this revisional application stems from a letter dated
14.05.1997, written by the petitioner to the Manager, Indian Overseas Bank,
195/4, Rash Behari Avenue, Kolkata-700029, to intimate him that the
petitioner, a legally married wife of the opposite party who is an Assistant
Manager of Overseas Bank at Ballygunge Branch has tortured her and driven
her out from the matrimonial home and furthermore a criminal case has been
initiated against the opposite party in which the opposite party had been
arrested and subsequently released on bail. The petitioner requested the
Manager to take necessary action in this matter.
6. In the criminal case under section 498A of the Indian Penal Code,
bearing BGR No. 1641 of 1997 the petitioner, accused opposite party and his
brother filed a joint petition on 16.06.2008 wherein she stated that she was
willing to withdraw the aforesaid case against the opposite party and his
brother due to intervention of common friends, relatives and well wishers and
in the interest and welfare of the minor daughter. In the criminal proceeding
learned Judicial Magistrate examined the petitioner and passed a judgment on
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18.09.2008 finding the accused persons not guilty of the offence punishable
under section 498A of the Indian Penal Code and acquitted them.
7. After disposal of the criminal case, leading to the acquittal on the basis
of such impression created by the petitioner, opposite party issued a letter
through his advocate dated 23.02.2009 requesting the petitioner to withdraw
the letter written by her to the Manager, Indian Overseas Bank dated
24.05.1997 within 15 days from receipt of the letter. On 09.03.2009 the
petitioner replied to the advocate’s letter through a letter issued by her
advocate denying and disputing the averment made by the opposite party in
his letter dated 23.02.2009. The opposite party then filed a complaint under
section 200 of the Code of Criminal Procedure against the petitioner, alleging
that by such letter the petitioner defamed him and committed an offence
punishable under section 500 of the Indian Penal Code. The complaint was
registered as AC Case No. 968 of 2009. Learned Chief Judicial Magistrate,
Alipore transferred the case to the learned Judicial Magistrate, 9th Court,
Alipore. In his complaint the opposite party has contended that the letter
issued by the petitioner addressed to the Manager of Overseas Bank underwent
wide circulation at his place of work and the opposite party has suffered
substantially in his career and was denied departmental examination for
promotion to higher posts and the same has injured his reputation due to the
aspersions thrown on his character and thereby lowered his status in the
esteem of the society, though the opposite party was found not guilty of the
offence.
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8. According to the petitioner the opposite party and one witness have been
examined under section 200 of the Cr. P.C in the impugned proceeding and
after taking cognizance, on 24.12.2009 learned Magistrate has issued process
against the petitioner for offence under section 500 of the Indian Penal Code,
directing her to appear before the Court.
9. Being aggrieved and dissatisfied with the impugned proceeding, the
present application has been filed, praying for quashing of the same on the
grounds inter alia, that learned Magistrate has illegally taken cognizance of the
offence, permitting continuance of the proceedings which is barred by
limitation under section 468 of the Code of Criminal Procedure. It is the further
case of the petitioner that learned Magistrate exceeded his jurisdiction by
taking cognizance of the offence and issuing process against her in respect of
an alleged offence more than 12 years prior to the date to the taking
cognizance, though it is barred under section 468 (2)(c) of the Code of Criminal
Procedure. Other relevant grounds assailing the proceeding are that any
imputation made in good faith by person to any of those persons who have
lawful authority over the person with respect to the subject matter of
accusation or for protection of his or her other interest does not constitute the
offence. The petitioner asserted that apart from being barred by limitation, the
5th, 8th, and 9th exception to section 499 of the Indian Penal Code if taken into
consideration, would not justify continuance of a criminal proceeding against
the petitioner under section 500 of the Indian Penal Code. On such grounds
the petitioner has prayed for quashing the impugned proceeding.
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10. Learned advocate for the petitioner argued that the petitioner was
subjected to physical and mental torture by the opposite party and her brother
and was finally driven out from her matrimonial home along with her minor
daughter. Due to such torture and demand of dowry the petitioner was
compelled to lodge an FIR against the opposite party and his brother before
Behala Police Station. The said case was subsequently disposed of on the basis
of a joint petition for withdrawing the case, resulting in acquittal of the
opposite party and his brother who received the benefit of doubt. It is urged
that the complaint case filed by the opposite party against the petitioner twelve
years after issuance of the letter to his superior officer is barred by limitation.
Further contention of the petitioner is that communication made by the
petitioner in the impugned letter was in good faith and such imputations
cannot attract the offence under section 500 of the Indian Penal Code. Learned
advocate for the petitioner in support of her argument relied upon a decision in
the case of Surinder Mohan Vikal Vs. Ascharaj Lal Chopra; 1978 Supreme
Court Cases (Cri) 215, wherein the Hon’ble Supreme Court held, “According to
the complaint, the offence under section 500 IPC was committed on March 15,
1972, which was the date of offence within the meaning of section 469 (1)(a) of
the Code, and the period of three year’s limitation would be calculated with
reference to the date for purposes of the bar provided by section 468. But the
complaint under section 500 IPC was filed on February 11, 1976, much after
the expiry of that period. It was therefore not permissible for the court of the
Magistrate to take cognizance of the offence after expiry of the period of