Judgment:
Sadhan Kumar Gupta, J.
1. Learned Advocate for the petitioner and the learned Advocate for the State are present.
2. Affidavit-of-service shows that notice was sent to the opposite party/de facto complainant by registered post with A/D. From the postal endorsement, it appears that intimation was given. But still the de facto complainant did not receive the same. As such, I consider that notice was properly sent to the de facto complainant. Since the de facto complainant is not appearing, so the revisional application is taken up for hearing in presence of the learned Advocate for the petitioner and the learned Advocate for the State.
3. I have heard the submissions of the learned Advocate for both the sides. It appears that a case under Section 494/406 was started against the petitioners by the de facto complainant. On the basis of that a police case was started and chargesheet has already been submitted under Section 496/494/406/34 IPC. At the very outset, Mrs. Goswami, learned Advocate for the petitioner pointed out that a case under Section 494 IPC cannot be investigated by police. Section 198 of the Cr.PC enjoins that a regular complaint is to be filed before the learned Magistrate by the complainant. Mr. Roy learned Advocate for the State also conceded this legal position. As such, that there cannot be any doubt that the case, as pending against the present petitioner under Section 494 IPC, is not maintainable.
4. Let us now see how far the allegation as made under Section 406 of the Indian Penal Code is sustainable in the eye of law. The allegation as made in the FIR is to the effect that the petitioner No. 2 allegedly took some amount of money from the complainant and did not return the same. It has further been alleged that the petitioner No. 1 being the wife of the de facto complainant, at the time of leaving the matrimonial house took away some amount of money from the said house. On the contrary, Mrs. Goswami, learned Advocate for the petitioners drawn my attention to several papers where from it appears that the wife on earlier occasion filed a case under Section 498A IPC against the husband and that is still pending. She has also pointed out that a proceeding under Section 125 Cr. PC has also been filed by the petitioner No. I/wife against her husband/de facto complainant and the proceeding is still pending. So, it is not difficult to understand the reason for filing this police case by the de facto complainant against the legally married wife and also against her alleged paramour. The allegation as made in the written complaint appears to me to be absurd and improbable in nature. I have already pointed out that there cannot be any charge under Section 494 IPC against the present petitioners. The allegation as made so far as Section 406 IPC is concerned, appears to be prima facie absurd and as such I think that further continuation of the present proceeding will be a sheer wastage of time of the Court and it will be an abuse of the process of the Court if the said proceeding is allowed to be continued. To my mind, it is a fit case where the proceeding should be quashed.
In the result, the revisional application succeeds on contest.
The proceeding bearing G.R. Case No. 52 of 2006 as pending in the Court of the learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas is quashed. The accused persons are discharged.
5. Criminal Section is directed to supply urgent certified copy of this order to the learned Advocate for the petitioners, if applied for.