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2003 DIGILAW 264 (ORI)

Atal Chandra Das v. Kuntala Guin

2003-03-28

L.MOHAPATRA

body2003
JUDGMENT L. MOHAPATRA, J. — This application under Section 482, Cr.P.C. has been filed for a direction to the learned S.D.J.M., Angul to drop the proceeding in I.C.C. No.11 of 2002 pending in his Court. 2. The case of the complainant as it appears from the complaint is that on 10.2.2002 at about 8.00 P.M. the petitioners had been to her father’s house in an Ambassador car and after taking tiffin they demanded dowry and threatened that unless further amount is paid, they would not accept the complainant and take her back to her matrimonial house. When the demand of the accused petitioners was objected by the father of the complainant and others, they were also threatened. It is further alleged in the complaint that at the time of marriage with accused Radhakan¬ta Das on 27.11.1997 dowry articles as per demand had been given, but after such marriage there was further demand of dowry and due to non-fulfilment of demand of dowry, the complainant was sub¬jected to torture by the accused persons. The learned S.D.J.M., Angul before whom the complaint was filed found a prima facie case and issued summons to the present petitioners. After receipt of summons, the petitioners have approached this Court for the relief as stated above. 3. Shri Nayak, the learned counsel appearing for the petitioners submitted that a civil suit is pending in the Court of the learned Civil Judge (Senior Division), Dhenkanal between the complainant and her husband-petitioner, Radhakanta Das, filed by the husband under Section 13(i) (a) of the Hindu Marriage Act for a decree of divorce on the ground of desertion, the said suit being registered as O.S. No.93 of 2002. He further submitted that 2 to 3 months after the marriage the complainant having deserted her husband, there was no scope of demand of dowry or torture at the time it is alleged to have been done in the complainant. According to Shri Nayak, on false and frivolous allegations the complaint has been filed only to harass the husband and other in-laws. Shri Pal, the learned counsel appearing for the complainant submitted that since a prima facie case is clearly made out with regard to demand of dowry and torture, there is every justifica¬tion for the learned Magistrate to take cognizance and issued summons to the accused persons. Shri Pal, the learned counsel appearing for the complainant submitted that since a prima facie case is clearly made out with regard to demand of dowry and torture, there is every justifica¬tion for the learned Magistrate to take cognizance and issued summons to the accused persons. He further submitted that in exercise of inherent jurisdiction, this Court may not allow the prayer and the ground on which the present application has been filed challenging initiation of the proceeding can also be raised at the time of framing of charge. 4. Perused the complaint annexed to the application. It is alleged in the complaint that the marriage took place on 27.11.1997 and at the time of marriage cash of Rs.50,000/- and other articles were given as per demand. Some time after the marriage the complainant came to know that the accused-husband is in love with another girl and wanted to marry her. It is also alleged that her husband and other members of the family demanded Rs.50.000/- more towards dowry and due to non-fulfilment of the said dowry of demand, she was tortured physically and mentally by the in-laws. Thereafter she left the matrimonial house in May 2001 and filed the complaint on 25th February, 2002. 5. On a bare perusal of the entire complaint, it appears that main allegations made in the complaint are against the husband and father-in-law. So far as the other members of the family are concerned, the allegations are general in nature and so far as accused No.7 is concerned, it is alleged that he had advised the in-laws of the complainant to drive her out from the house. From the complaint itself, it is clear that there is no specific allegation against the present petitioners except the general statement that all of them subjected her to torture. It is contended by the learned counsel for the petitioners that the brothers and sisters of the accused-husband have unnecessarily been dragged into the case and made accused only for the purpose of harassing the family and there being no legal evidence avail¬able against them, the learned Magistrate should not have taken cognizance of the offence alleged to have been committed. 6. Considering the nature of allegations made in the complaint and in absence of specific allegations of overt act. 6. Considering the nature of allegations made in the complaint and in absence of specific allegations of overt act. I am of the view that the learned Magistrate should reconsider the question taking cognizance so far as the present petitioners are concerned. I accordingly dispose of this application directing that in the event the petitioners appear before the learned Magistrate and file an application for reconsideration of the order taking cognizance, the learned Magistrate shall hear the said application and find out the materials collected during inquiry as to whether prima facie materials are available against all the accused persons named in the complaint for the purpose of taking cognizance and pass necessary order in accordance with law. Application disposed of.