Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 249 (ORI)

RABI NARAYAN OJHA v. STATE OF ORISSA

2004-06-17

P.K.TRIPATHY

body2004
P. K. TRIPATHY, J. ( 1 ) PETITIONER is the accused in g. R. Case No. 523 of 2001 of the Court of judicial Magistrate First Class, Jaipur Road arising out of Korei P. S. Case No. 115 of 2001. Admittedly, the alleged offence are under Sections 376 and 506 I. P. C. for which charge-sheet has been filed. Petitioner has filed this application under Section 482, Cr. P. C. to quash the aforesaid criminal proceeding on the ground that the allegation in the F. I. R. is false and fabricated and that in the meantime the prosecutrix has filed an affidavit mentioning that a false report was submitted at the instance of her family members because of their dispute with the accused and that the petitioner did not ravish her. ( 2 ) WHEN the application under Section 482 Cr. P. C. was taken up for admission the said prosecutrix suo motu appeared and filed that affidavit. It reveals from the order sheets that when this Court directed for personal appearance of the prosecutrix to find out about genuineness in that affidavit, at first, she sought for adjournment on the pretext of pregnancy and later on she avoided to appear. Therefore, her personal appearance was not further insisted. ( 3 ) NOTWITHSTANDING the above noted fact situation petitioner reiterated his claim of emergency and quashing of the criminal proceeding on the basis of the above noted affidavit of the prosecutrix. In support of his contention, petitioner relied on the case of betu alias Bijan Kumar Nayak v. State of orissa, 2001 (2) Ori LR 433. ( 4 ) MR. Aswini Kumar Misra, learned standing Counsel on the other hand placing the materials in the case diary argued about existence of a prima facie case against the petitioner and therefore, not to quash the criminal proceeding. In support of that argument he relied on the cases of Sri Ajaya kumar Sahu v. State of Orissa, (2000) 18 ori CR 11, and State of Karnataka v. M. Devendrappa, AIR 2002 SAC 671 : (2002 Cri lj 998 ). ( 5 ) BEFORE dealing with the aforesaid contention it may be noted that in course of hearing, petitioner referred to an order passed in Criminal Misc. Case No. 2930 of 2002 and undertook to file certified copy of such order. ( 5 ) BEFORE dealing with the aforesaid contention it may be noted that in course of hearing, petitioner referred to an order passed in Criminal Misc. Case No. 2930 of 2002 and undertook to file certified copy of such order. Since no such certified copy was filed, therefore, this Court called for that record for perusal. On perusal of that record, it appears that petitioner moved application under Section 438, Cr. P. C. and this Court on 30-4-2002, rejected the application for anticipatory bail though the petitioner had banked on the above noted affidavit of the prosecutrix in support of his prayer ,for bail. Beyond that there is no other order in that proceeding which is worthy of mentioning. ( 6 ) IN the case of Betu, (2001) 2 Ori LR 433 (supra) a learned single Judge of this court taking note of the prosecutrix being above 23 years of age and having filed an affidavit about voluntarily eloping with the accused and thereafter, entering into matrimonial tie, found it unnecessary to keep pending the criminal proceeding involving the offences under Sections 366/376/34 I. P. C. In the case of Ajaya Kumar Sahu, (2000 (18) Ori CR 11) (supra) this Court referring to and relying on the ratio propounded by the Supreme Court decided that a case involving non-compoundable offence when prohibited to be compounded in view of the prohibition in sub-section (9) of Section 320, cr. P. C. , therefore, an application under section 482, Cr. P. C. in that respect, should not be entertained on the principle that a relief which cannot be directly given, that should not be granted in an indirect method by making camouflage on law. In the case of State of Karnataka, (2002 cri LJ 998) (supra) apex Court propounded that quashing of criminal proceeding is impermissible unless on analysis of the evidence on record (case diary), the Court is satisfied about non-existence of a prima facie case and for that it would be improper to make meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. ( 7 ) BEING abreast of the aforesaid settled position of law and the rule of precedence of the precedents, this Court finds this application under Section 482, Cr. P. C. bears no merit. ( 7 ) BEING abreast of the aforesaid settled position of law and the rule of precedence of the precedents, this Court finds this application under Section 482, Cr. P. C. bears no merit. Offence under Section 376,i. P. C. is a serious and heinous one not only effecting an individual but also the society. On the face of existence of prima facie case such offence should not be allowed to be compounded by importing Section 482, Cr. P. C. , simply because that benefits individuals. Such a course if adopted, then it reduces and may be in certain cases convert the offence of rape to prostitution in a different manner. If the accused is innocent and victimised by the family members of the prosecutrix then at the stage of trial, accused can have the remedy on bringing appropriate evidence in support of his defence plea regarding his innocence. It is for the trial Court to consider at that stage, about the statement of the prosecutrix and on finding that a false F. I. R. was lodged by the prosecutrix it should follow with appropriate criminal proceeding against the person who lodged the false F. I. R. and the persons who abetted the same. However, the aforesaid is a mere observation and the trial court is not to consider the same unless such evidence is brought on record in course of the trial. For the reasons indicated above, the application under Section 482, Cr. P. C. is dismissed.