Calcutta High Court Refuses To Vacate Stay On Warrant For Arrest Of Cricketer Mohammad Shami In Domestic Violence Case

The Calcutta High Court on Tuesday upheld an order of the Sessions Judge, Alipore stayed the arrest warrant issued against cricketer Mohammad Shami in a cruelty and assault case filed by his wife in 2018.

The single judge bench of Justice Shampa Dutt (Paul) observed:

“In the present case the learned Session Judge passed an order of stay. The hearing of the revision is still pending. And as such in view of the Judgment of the Supreme Court in Honnaiah T.H. (Supra) the order of the learned Session Judge requires no interference.”

It was alleged by the petitioner that her husband- Mohammad Shami is a womanizer and he maintains steady sexual relation with many women and when she protested against such activities, she was assaulted by Shami on February 23, 2018.

The petitioner filed a written complaint with Jadavpur police station dated March, 2018 under Section 498A ( Husband or relative of husband of a woman subjecting her to cruelty) and Section 354 (Assault or criminal force to woman with intent to outrage her modesty) of IPC, which ended in charge sheet.

The Chief Judicial Magistrate, Alipore vide order dated August 29, 2019 issued arrests warrants against Shami and his relatives (Opposite parties).

The opposite parties preferred a revision against the said order of the Magistrate before the Sessions Judge, Alipore, who vide order dated September 9, 2019 admitted the revision and granted stay on the proceedings till the matter was to be adjudicated on merit.

The petitioner filed the revision petition before the High Court against the impugned order of the Sessions Judge dated September 9, 2019.

The Court observed that one of the reasons given by the Magistrate for issuing the warrant of arrest instead of summons, was that Shami is a cricketer in the Indian team and a bad message would go to the society specially to the petitioner, who may think she has been prejudiced as Shami is a high profile accused.

The court noted:

“The said view of the Magistrate is against the guidelines laid down by the Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation, Miscellaneous Application No. 1849 of 2021 in SLP (Crl.) No. 5191 of 2021 wherein it was held that the police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically.”

The court further relied upon the judgement of the Supreme Court in Honnaiah T.H. Vs State of Karnataka and Ors., Criminal Appeal No. 1147 of 2022 in which it was held that the revisional jurisdiction under Section 397 CrPC can be exercised where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice.

The court held:

“The order of the learned Magistrate dated 29.08.2019 was not in accordance with law and totally against the principle of natural justice and the learned Session Judge vide order dated 09.09.2019 rightly passed an order granting ‘stay’ of the order of the learned Magistrate. Thus the order of the learned Session Judge dated 09.09.2019 passed in Criminal Motion No. 82/18 dated 08.03.2018 being in accordance with law requires no interference.”

The court thus dismissed the revision petition.

Case Title: Hasin Jahan v. State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 83

Coram: Justice Shampa Dutt (Paul)

Click Here to Read/Download Judgment