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2004 DIGILAW 85 (ORI)

DIBAKAR MOHARANA v. DIGAMBAR MOHARANA

2004-02-06

L.MOHAPATRA

body2004
JUDGMENT : L. Mohapatra, J. - This application u/s 482, Code of Criminal Procedure has been filed for quashing the proceeding in I.C.C. No. 14 of 2000 pending in the Court of the learned S.D.J.M., Panposh at Uditnagar, Rourkela. The opposite party is the complainant in the said case and all the Petitioners are accused persons. 2. The case of the complainant-opposite party is that the marriage between Prasanna Kumar Moharana and Petitioner No. 2, Dipika Moharana, was solemnised in April, 1998. After living for sometime, the son of the complainant filed a divorce suit in the Court of the learned Judge, Family Court, Rourkela in October, 1999 on the ground of desertion, cruelty and illtreatment. In spite of service of notice in the said suit for divorce the Petitioner No. 2 did not appear in the Court and instead lodged an FIR against the complainant and his wife as well as her husband and daughters of the complainant on 23rd April, 1999 in Mahila Police Station at Sambalpur. Much prior to lodging of the said FIR apprehending that a false FIR may be lodged, the son of the complainant had also intimated the Mahila P.S., Rourkela about the conduct of the Petitioner No. 2. When the matter stood thus, on 26th April, 1999 at about 1.00 A.M. the I.I.C., Mahila Police Station, Sambalpur along with her subordinates and the present Petitioners came to the house of the complainant and wanted to enter inside the house. When the complainant demanded for production of search warrant, the same could not be produced and there was not discussion between the complainant and the I.I.C., Mahila Police Station, Sambalpur. When such discussion was going on, the Petitioners forcibly entered inside the house of the complainant, caught hold of the wife of the complainant, who was suffering from high fever and it is further alleged that the Petitioner No. 2 gave two kick blows to the waist of the wife of the complainant. It is also alleged that they abused the inmates in filthy language and dragged the wife of the complainant by puling her hair. It is also alleged that they abused the inmates in filthy language and dragged the wife of the complainant by puling her hair. It is further alleged that the son of the complainant, who is husband of the Petitioner No. 2, was also pulled from the bed and was assaulted and being encouraged by the police, the Petitioners removed the household articles from the house of the complainant such as Dressing Table with mirror, double-bed, gold ornaments of 75 grams, gifts, cash of Rs. 15,000/-, V.I.P., suit case etc. On the basis of such allegation, the complaint was lodged for commission of offences under Sections 448, 323, 294, 379, 506 and 34 of the Penal Code. 3. The learned Counsel appearing for the Petitioners submitted that on the basis of the FIR lodged by the Petitioner No. 2 before the Mahila Police Station, Sambalpur under the direction of the I.I.C., Mahila Police Station, the house of the complainant was searched and dowry articles given during the marriage were taken back. The seizure list prepared in the aforesaid case indicates seizure of the articles as mentioned in the complaint and, therefore, the allegations made in the complaint are false and the proceeding should be quashed. 4. The learned Counsel appearing for the opposite party, on the other hand, submitted that there was no search warrant for entry into the house of the complainant on the date of occurrence and without any such warrant, the police could not enter into the house of the complainant for the purpose of removal of alleged dowry articles. It was also submitted by the learned Counsel for the opposite party that even if it is accepted that the police had authority to enter inside the house for the purpose of removal of dowry articles, there was no necessity for the Petitioners to enter into the house of the complainant and assault the wife of the complainant as well as his son. 5. On perusal of the complaint, it appears that when the I.I.C., Mahila Police Station went to the house of the complainant at about 1 O' clock in the night, the complainant demanded production of search warrant. Such warrant was not produced as alleged by the complainant. 5. On perusal of the complaint, it appears that when the I.I.C., Mahila Police Station went to the house of the complainant at about 1 O' clock in the night, the complainant demanded production of search warrant. Such warrant was not produced as alleged by the complainant. Though there is no allegation that the I.I.C. entered into the house of the complainant, it is specifically alleged that the Petitioners without any authority entered into the house of the complainant, assaulted the wife and son of the complainant and removed the alleged dowry articles. Moreover, on perusal of the seizure list as well as list of articles removed from the house of the complainant as mentioned in the complaint petition, it appears that only few of the articles tally. Out of seven items mentioned in the complaint, only the double-bed, one attache, dressing table with mirror find place in the seizure list. The gold ornaments, gifts as well as cash of Rs. 15,000/- do not appear in the seizure list prepared in the G.R. Case which was registered on the basis of the FIR lodged by the opposite party. Therefore, even if it is accepted that the Petitioners were justified in entering into the house of the complainant-opposite party for taking back the dowry articles, there was no reason for them to take away the gold ornaments and cash which did not find place in the seizure list. There are prima facie materials on record to show commission of offences as mentioned in the complaint. I am, therefore, not inclined to entertain this application for quashing the proceeding. 6. Accordingly, the Cr.M.C. is dismissed. Final Result : Dismissed