Banashree Baishya and Anr. Vs Malati Baishya and Anr.

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GAHC010097142024

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2025:GAU-AS:6141

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./590/2024

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BANASHREE BAISHYA AND ANR

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W/O SRI SANTOSH BHATTACHARYA, R/O NABAGRAHA, NATUN NAGAR, NEAR BISHNU MANDIR, SILPUKHURI, GUWAHATI-03, P.S.-CHANDMARI, DIST-KAMRUP (M), ASSAM

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2: SANTOSH BHATTACHARYA S/O NAREN BHATTACHARYA R/O NABAGRAHA NATUN NAGAR NEAR BISHNU MANDIR SILPUKHURI GUWAHATI-03 P.S.-CHANDMARI DIST-KAMRUP (M) ASSA

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VERSUS

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MALATI BAISHYA AND ANR

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W/O LT. PABITRA KUMAR BAISHYA, R/O NABAGRAHA, NATUN NAGAR, NEAR BISHNU MANDIR, SILPUKHURI, GUWAHATI-03, P.S.-CHANDMARI, DIST-KAMRUP (M), ASSAM

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2:THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR ASSA

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Advocate for the Petitioner : MR. J KALITA, DIKSHITA DEKA,MR SOHAING

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Advocate for the Respondent : PP, ASSAM (R2), MS. N BARUAH (R-1),MR. R K MOUR (R1),MR. P DAS (R-1)

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BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA

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JUDGMENT & ORDER (CAV)

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Date : 16-05-2025

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1. Head Mr. J. Kalita, the learned counsel for the petitioners. Also heard Mr. P. Das, the learned counsel appearing for the respondent no. 1 and Mr. B. Sharma, the learned counsel appearing for the State respondent no. 2.

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2. This is an appeal under Article 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India for setting aside and quashing the impugned proceeding of Complaint Case No. 1931^C /2021 arising out of a petition filed u/s 31(1) read with Section 32 of the Protection of Women from Domestic Violence Act, 2005 or D.V. Act pending before the learned Judicial Magistrate First Class-5, Kamrup (M).

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3. In brief the case of the petitioners is that the respondent no. 1 who is the mother of the petitioner no. 1 and mother-in-law of the petitioner no. 2 had filed a complaint case u/s 12 of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred as D.V. Act] which is accordingly registered as D.V. Case No. 07^M /2021 against the petitioners seeking protection under the D.V. Act of 2005, which is pending for adjudication before the learned JMFC, Kamrup (M). In the said application the respondent no. 1 also sought for interim relief u/s 12 of the D.V. Act and accordingly vide order dated 03.02.2021, the present petitioners were directed to restrain from committing/repeating any act of domestic violence on the respondent no. 1 and also to restrain the petitioners from dispossessing or in any manner disturbing

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the possession of the respondent no. 1 in the disputed premises.

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4. It is further stated that on 19.02.2021 the respondent no. 1 also filed a petition u/s 31(1) read with Section 32 of the D.V. Act alleging that on 19.02.2021 the respondent no. 1 came to the house of the petitioner near Nabagraha, Natun Nagar, Silpukhuri but, she was not allowed to enter into the house by the petitioners and abused her by using slang languages and also pushed her away which resulted fracture on her back and hand. It is further alleged that then she called her younger son, namely, Pranab Kumar Baishya and her elder son, namely Sanjib Kumar Baishya who accordingly rescued her from there and thus the petitioners violated the ad interim order passed by the Court dated 03.02.2021. Thereafter, an FIR was also lodged by the respondent no. 1 in Chandmari Police Station which is registered as Chandmari P.S. Case No. 157/2021 u/s 341/323/34 IPC.

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5. On the basis of the said application the Court also pleased to direct the concerned authorities to register a complaint case under the said provision of

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law and thus a Complaint Case No. 1931^C /2021 also registered and on 03.11.2023 the present respondent no. 1 was also examined u/s 200 Cr.PC as well as her son is examined u/s 202 Cr.PC before issuing summons against the petitioners. Thereafter the learned Court below is pleased to issue summons against the present petitioners vide its order dated 03.11.2023. Again on 18.03.2023, the respondent no. 1 has filed another application under the same provision of Section 31 of the D.V. Act, 2005 with a concocted story that the present petitioners again violated the interim order dated 03.02.2021, which was also accordingly fixed for filing of a written objection by the present petitioners on 25.01.2024. On that day the petitioners have filed a detailed written objection and specifically stated that the respondent no. 1 has been

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repeatedly trying to mislead the Hon’ble Court by filing one after another FIR and complaint cases. The petitioners subsequently also able to get the CCTV video footage which was provided by the neighbour of the petitioners wherefrom it is seen that the respondent no. 1 was trying to mislead the Court by taking the advantage of senior citizen by filing cases one after another.

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6. After getting the video footage it is also confirmed by the petitioners that the allegation brought against the present petitioners are totally false and concocted and in the video footage it is also seen that she went to the house with bare hand and on return she carried a bag in her hand and it is also seen that none of her sons came to rescue her and she herself came down carrying a big bag in her hand. Thus the respondent no. 1 is harassing the petitioners by filing cases one after another only to harass them and to disturb the peaceful life and hence finding no other alternative the present petition has been filed praying for quashing of the Complaint Case No. 1931^C /2021 as well as the impugned order dated 03.11.2023 whereby the cognizance was taken and summons was issued to the present petitioners.

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7. It is submitted by Mr. Kalita that the learned Trial Court below committed grave mistake by directing the concerned authorities to register a complaint case against the present petitioners without hearing them. The learned Trial Court has overlooked the question of natural justice and without even providing an opportunity to raise their objection against the petition filed by the respondent no. 1 u/s 31(1) of the D.V. Act.

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8. It is further submitted that the video footage collected by the petitioners clearly shows that the respondent no. 1 has intentionally and deliberately attempted to mislead the Hon’ble Court and without any such incident as

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alleged by the respondent no. 1, she lodged the complaint with some false and concocted allegations alleging violation of the interim order passed in the D.V. case.

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9. Accordingly, it is submitted by Mr. Kalita that the learned Trial Court below without considering the entire facts of the case and without giving any opportunity of hearing to the present petitioners has issued summons against them with the allegation that they have violated the order of learned Court below passed in the D.V. case which is pending before the learned Trial Court. Mr. Kalita accordingly submitted that it is a fit case wherein the Complaint Case

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No. 1931^C /2021 as well as the impugned order dated 03.11.2023 can be set aside and quashed by invoking the power of Section 482 Cr.PC.

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10. Mr. Das the learned counsel for the appellant/respondent no. 1 submitted in this regard that an interim order was passed in D.V. Case No. 07^M /2021 against the petitioners with a direction not to repeat/commit any acts of domestic violence (physical and mental torture, verbal and emotional abuses) of the aggrieved persons and also directed the respondents to restrain/prohibit themselves from dispossessing the respondent no. 1 in any manner from the share of the household.

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11. Mr. Das further submitted that prior to 19.02.2021 the respondent no. 1 had a fracture on her hand and she also admitted in the hospital of Nalbari and when she pushed by the petitioners, she also sustained injury then she called her sons for rescue. Mr. Das submitted that CCTV footage is not showing the incident occurred when she entered into the house of the petitioners and thus it cannot be said that no such incident had happened inside the house and only on the basis of the video footage produced by the petitioners, the allegation

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brought by the respondent no. 1 for violation of the interim order dated 03.02.2021 cannot be disbelieved. He further submitted that the order dated 26.02.2021 was passed accordingly only after hearing both the parties and then the Bench Assistant was accordingly directed to register a complaint. He further submitted that against the order of 26.02.2021, the petitioners had already approached the learned appellate court and an appeal being Criminal Appeal No. 68/2021 is already pending before the appellate court. Thus, the order is already under challenge and if the appellate court set aside the order, the entire proceeding which was registered as a complaint case will go.

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12. Accordingly, Mr. Das submitted that Complaint Case No. 1931^C /2021 and the order of cognizance dated 03.11.2023 will not be in existence if the order dated 26.02.2021 is accordingly set aside and quashed by the appellate court, which is still pending before the appellate court. Accordingly, Mr. Das submitted that the present petition is at the pre-matured stage and cannot be entertained at this stage. More so, the petitioners have already violated the interim order passed by the learned Court below in D.V. Case No. 07^M /2021. Accordingly, Mr. Das submitted that it is not at all a fit case to quash the entire proceeding of C.R. Case No. 1931^C /2021 as well as the order of cognizance by invoking the power under Section 482 Cr.PC and accordingly, he prayed for dismissal of the case.

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13. Mr. B. Sharma, the learned Additional Public Prosecutor also submitted in this regard that the petition cannot be entertained at this stage considering the facts and circumstances of the case and accordingly he also submitted that the instant petition liable to be dismissed.

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14. Hearing the submissions made by learned counsel for both sides it is seen

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that the main contention of the petitioners is that the respondent no. 1 is filing cases one after another only with a view to harass the present petitioners and also obtained interim order dated 03.02.2021 from the learned Court below filing an application under the D.V. Act. It is also seen that vide the said order of 03.02.2021, the petitioners were restrained from committing/repeating any act of domestic violence on the respondent no. 1 and also not to disturb her in staying in the shared household. Further it is also the claim of the petitioners that subsequently the respondent no. 1 with some false and concocted allegations had filed an application before the learned Court below with the allegation of violation of interim order dated 03.02.2021 on the basis of which a criminal complaint has already been registered and accordingly, the cognizance was also taken after recording the statements of the complaint/respondent no. 1 as well as her two sons u/s 200/2002 Cr.PC. By producing a CCTV footage it is also claimed by the petitioners that there was no such incident had happened on 19.02.2021 as alleged by the respondent no.1 and the complaint was lodged only with some false and concocted allegations.

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15. On the other hand it is the case of the respondent no. 1 that she was harassed by the petitioners on the day of incident i.e. on 19.02.2021 and rebuked her with some slang and filthy languages and pushed her when she came to reside with the petitioners for which she sustained injury. It is also submitted by the respondent no. 1 that there was no coverage of CCTV footage and the incident happened inside the house cannot be said to be false and concocted.

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16. From the perusal of the case record as well as hearing the submissions made by learned counsel for both sides, it is seen that on the basis of the complaint filed by the respondent no. 1 u/s 31(1) and 32 of the D.V. Act,

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alleging violation of the interim order passed by the Court, both the parties were heard at the length by the learned Court below and accordingly the order was passed on 26.02.2021 directing the Bench Assistant to register a complaint case which was subsequently registered as C.R. Case No. 1931^C /2021 and from the order dated 03.11.2023, it is also seen that the cognizance was taken and summons was issued against the petitioners. But, the most important issue is that the order dated 26.02.2021 by which the learned Court below had directed the Bench Assistant to register a case is already under challenge and the same matter is pending before the learned appellate court. Thus, it is seen that issue as to whether there was any violation of interim order dated 03.02.2021 is already under challenge on the basis of which the complaint was registered and cognizance was taken by the learned Court below. It is rightly submitted by learned counsel for the respondent that in the event of setting aside the order of 26.02.2021, there will be no existence of the Complaint Case No. 1931^C /2021, which is filed by the present petitioner. So, the very basic point in regards to the violation of the interim order is already pending before the learned Appellate Court and hence the instant petition which is filed challenging the order of taking cognizance seems to be pre-matured at this stage. However, in the same time it is also to be seen that if there is no order of stay of the proceeding in the said Complaint Case No. 1931^C /2021 then, the filing of the appeal against the order of 26.02.2021 will become infructuous.

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17. Further the genuineness of the CCTV footage etc. can only be determined/decided at the time of hearing of the case. But, at this stage only considering the CCTV footage, the claim of the petitioners also cannot be considered at this stage. In view of the entire facts and circumstances of this case, this Court is of the opinion that it is not a fit case to quash the entire

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proceeding of C.R. Case No. 1931^C /2021 and the order of cognizance at this stage by invoking the power u/s 482 Cr.PC. However, the petitioners may approach the appellate court with a prayer for stay of the further proceeding of C.R. Case No. 1931^C /2021, if required.

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18. In terms of above, this criminal petition stands disposed of.

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JUDGE

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Comparing Assistant

Banashree Baishya and Anr. v. Malati Baishya and Anr.

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Banashree Baishya and Anr. v. Malati Baishya and Anr.

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