IN THE COURT OF THE SESSIONS JUDGE, CACHAR, SILCHAR.
(Criminal Revisional Jurisdiction)
Crl. Revision No.118 of 2012
Present :- Shri B. Debnath, LL.M., AJS,
1. Sri Santanu Chakranorty.
2. Smti. Anuparna Chakraborty. .......... Petitioners.
- Versus -
The State of Assam. .......... Respondent.
For the revisionist :- Smti. B. Acharyya, learned advocate.
For the respondent :- Sri Sibdas Dutta, learned P.P.
Argument heard on :- 29.11.2012.
Judgment delivered on :- 13.12.2012.
J U D G M E N T
1. This Revision is preferred by the accused persons of C.R. Case
No.118/2012 on being dissatisfied with the order dated 08.08.2012 because the
learned C.J.M., Cachar framed charge against them u/s.498(A)/34 I.P.C. in spite
of the complaint filed by 2nd wife of the Revisionist Santanu Chakraborty.
2. L.C.R. has been called for. Perused the L.C.R. and heard both sides'
3. One Supriya Das (Chakraborty) filed a written complaint against
Revisionist Santanu Chakraborty and his first wife Anupama Chakraborty
alleging inter-alia that on 15.12.2008 she was married with Revisionist Santanu
Chakraborty as per registered marriage procedure and since then she was
staying with the Revisionist Santanu Chakraborty in a rented house at College
Road, Silchar. But, after few days of marriage she was subjected to the cruelty
of dowry and terminated her pregnancy on 07.06.2007 against her will.
Thereafter, she was brought to Malugram on 27.02.2010 and started physical
torture with the instigation and co-operation of Respondent No.2.
4. On receipt of the written complaint it was forwarded to O/C, Silchar
Police Station to register a case, investigate and to submit report in F.F.
Accordingly, O/C, Silchar Police Station registered Silchar P.S. Case
No.1062/2010 u/s.498(A)/417/34 I.P.C. read with Section 3/4 D.P. Act. After
investigation charge-sheet submitted against the Revisionists. They have been
charge-sheeted u/s.498(A) I.P.C.
5. Anyhow, while charge framed u/s.498(A) I.P.C. the Court below relied
on the case of Supreme Court in Reema Agarwala Vs. Anupam & Ors.,
2004(3) SCC 199 and opined as follows :-
“In view of the above law laid down by the Hon'ble Apex Court, it
is disclosed that validity of a marriage will not act as a bar for a
woman to institute a case u/s.498(A) I.P.C.
6. I have gone through the aforesaid case and also heard the learned
advocate of the Revisionists. The learned advocate of the Revisionists argued
that as per rule of precedent that if two contradictory decisions of Supreme
Court is available in the same issue, the decision of larger Bench will be
prevailed. With force of said submission she relied on the decision of Supreme
Court in Shivcharan Lal Varma and another Vs. State of Madhya Pradesh
vide 1 (2007) D.M.C. 120 S.C. or J.T. 2002 (2) S.C. 641.
7. She stated that as per decision of Supreme Court in aforesaid case a
second marriage during life time of first marriage is void, ab-initio, for which
there is no cruelty to the complainant (second wife) as per explanation of
Section 498(A) I.P.C.
8. I have gone through the aforesaid judgment. Mohini was 2nd wife of
Shivcharan. Kalindi was 1st wife. Mohini committed suicide due to cruelty of
her husband and 1st wife. Charge framed u/s.498(A)/306 I.P.C. The Sessions
Judge convicted both husband and 1st wife u/s.498(A)/306 I.P.C. On Appeal
High Court affirmed the conviction and sentence. Then by way of special leave
petition, the matter brought to the Supreme Court. The Supreme Court by 3
(three) Judges Bench set aside conviction u/s.498(A) I.P.C. with the reasoning
that the 2nd marriage is null and void, but upheld the conviction u/s.306 I.P.C.
9. As the judgment in Reema Agarwal case (Supra) decided by 2 (two)
Judges Bench and Shivcharan's case (Supra) decided by 3 (three) Judges Bench,
the decision of larger Bench is prevailed.
10. Therefore, at present the law is available in our hand that in order to
take cognizance of offence u/s.498(A) I.P.C. the subject of cruelty must be wife
under valid marriage.
11. Hence, I find infirmity to the impugned order of framing charge
u/s.498(A) I.P.C. So, the impugned order is set aside and Revisionists are
discharged of charge u/s.498(A) I.P.C. But, at the same time it is revealed from
the record that some other allegations are levelled against the Revisionist
Santanu Chakraborty for physical assault as well as terminating pregnancy
without the will of the complainant and instigation of commission of these
offence against Anupama Chakraborty. But, nothing discussed in the impugned
order regarding those aspect by the Court below as to whether the prosecution
made out the case for trial.
12. Of course, in the charge-sheet only Section 498(A) I.P.C. has been
shown against the Revisionists, but the Court should not depend on the opinion
of the investigating officer only and if on perusal of record find material for
involvement of commission of offence other than offence u/s.498(A) I.P.C. the
Court is not restricted to frame charge on those appropriate Sections of offence.
13. In this aspect I am referring the case law of P. Vijayam Vs. State of
Kerala and another, 2010 Cri.L.J. 1427.
14. In that case the Supreme Court observed that Judge is not a mere post
office to frame the charge at the behest of prosecution, but he is to exercise his
Judicial mind to facts of each case in order to determine whether a case for trial
has been made out by prosecution.
15. With the above observation, the case is remanded and directed to pass
a fresh order after giving reasonable opportunity for hearing to both the
prosecution and defence.
16. Both the parties are asked to appear before the Court below on
28.12.2012 for further instruction.
17. Send back the L.C.R. along with copy of this judgment for
information and necessary action.
18. Given under my hand and seal of this Court on this 13th day of
Dictated & corrected by me.
Typed by Sujit Kr. Das.
Crl. Revision No.118/12.
Judgment is prepared separately and kept in
The impugned order of framing charge
u/s.498(A) I.P.C. is set aside and Revisionists are
discharged of charge u/s.498(A) I.P.C. But, at the same
time it is revealed from the record that some other
allegations are levelled against the Revisionist Santanu
Chakraborty for physical assault as well as terminating
pregnancy without the will of the complainant and
instigation of commission of these against Anupama
The case is remanded and directed to pass a
fresh order after giving reasonable opportunity for
hearing to both the prosecution and defence.
Send back the L.C.R. along with copy of this
judgment for information and necessary action.