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1986 DIGILAW 76 (ORI)

SK. MINHASUDDIN MOULA v. STATE OF ORISSA

1986-02-28

G.B.PATNAIK

body1986
JUDGMENT : G.B. Pattnaik, J. - Petitioner has invoked the inherent jurisdiction of this Court and has prayed for quashing the cognisance taken by the learned Judicial Magistrate, Nimapara, in G. R. Case No. 223 of 1984 u/s 363. Indian Penal Code. According to the petitioner he is a permanent resident of Charinagal under Barchana Police Station, but is serving as an Arabic teacher at Bangalore. On the basis of a First information Report lodged by one Kariman Bibi, P. S. Case No. 86 of 1984 was instituted by the Officer-in-charge of Nimapara Police Station. The allegations in the said F. I. R. are to the effect that the petitioner has kidnapped the minor girl of the informant on 22.5.1984 by practising some witchcraft and the age of the girl is 13 years. The Police in course of investigation also recorded the statements of several witnesses. Charge-sheet has not yet been field in this case and at this stage, the present petitioner has moved this Court for quashing the proceedings. 2. The main contention of Mr. Misra, the learned counsel appearing for the petitioner is that the girl is more than 19 years of age and she on her own volition has left her house and has married the petitioner. In that view of the matter, no offence u/s 363, Indian Penal Code can be said to have been committed by the petitioner. In support of the aforesaid submission, the learned counsel places reliance on the certificate issued by a retired Radiologist Dr. C.B. Mohanty, which has been annexed to the application as Annexure-3 and also the marriage certificate which has been annexed to the application as Annexure-2. In addition, an affidavit of the girl, Samsara Bibi, indicating that she has married out of her own free will and volition has also been annexed to the application as Annexure-4. Mr. Misra, the learned counsel, submits that if these documents are taken into consideration, ft will be clearly established that the petitioner has not kidnapped Samsara Bibi out of the lawful guardianship of the complainant-informant and, therefore, the offence u/s 363, Indian Penal Code, cannot be attracted. In my opinion, the aforesaid contention will not hold good in the eye of law. 3. In my opinion, the aforesaid contention will not hold good in the eye of law. 3. It is a well-settled principle that a criminal proceeding shall ordinarily be proceeded with in accordance with law unless the allegations made in the complaint even on their face value and if accepted fully do not constitute an offence The inherent power of the High Court to quash a criminal proceeding is to be exercised to prevent abuse of the process of Court or to secure the ends of justice. While examining as to whether a criminal proceeding is to be quashed, the High Court cannot launch on a detailed examination of the case on merits. Whether there are sufficient materials to hold a person guilty of the offence is to be decided at the stage of the trial and not while finding out as to whether there are prima facie materials to take cognisance and proceed against an accused. At the stage of taking cognisance, the Magistrate is only required to find out whether there is a prima facie case to proceed against an accused or not. It is not open for the High Court at this stage to sift the evidence or to take the materials produced by the defence into account in order to test the correctness of the prosecution evidence. The power u/s 482 of the Code of Criminal Procedure has to be exercised in rare and exceptional cases only where it is necessary in the interests of justice. [See. Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, ; Mohd. Akbar Dar and Others Vs. State of Jammu and Kashmir and Others, ; Vitla Venkata Rao and Ors. v. Suttapalli Venkata Rao 55(1983) C. L. T. 553 and Dinesh Kumar Jajodia and Another Vs. State Co-operative Marketing Federation Ltd.. This being the position of law, it would not be appropriate for me at this stage to hold that there is no prime facie case after taking into consideration the documents, Annexures 2, 3 and 4. As, has been pointed out by the learned Additional Standing Counsel, and in my opinion, rightly so, the materials appearing in the case diary reveal a prima facie case constituting the offence u/s 363, Indian Penal Code. As, has been pointed out by the learned Additional Standing Counsel, and in my opinion, rightly so, the materials appearing in the case diary reveal a prima facie case constituting the offence u/s 363, Indian Penal Code. Interference with the criminal proceeding at this stage by this Court in exercise of inherent jurisdiction, in the facts and circumstances of the present case will not be in the interests of justice, but on the other hand, there will be gross miscarriage of justice. Consequently, the prayer of the petitioner to quash the proceedings cannot be acceded to. 4. In the result, I find no merit in the application and, therefore, this Criminal Miscellaneous Case is dismissed. Final Result : Dismissed