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2013 DIGILAW 38 (ORI)

Saroj Kumbhar @ Mani Kumbhar v. State of Odisha

2013-02-04

B.N.MAHAPATRA

body2013
Judgment B.N. MAHAPATRA, J. This writ petition has been filed with a prayer for quashing Tangarpali PS. Case No.08/2011 dated 19.02.2011 corresponding to G.R. Case No.215/2011 pending in the Court of learned S.D.J.M., Panposh registered under Section 363 of the Indian Penal Code. 2. Petitioner’s case in a nutshell is that as per the information lodged by one Ekna Das, Police has registered Tangarpali PS Case No.08/2011 dated 19.02.2011. Corresponding to said P.S Case, G.R. Case No.215/2011 is registered and pending in the Court of learned S.D.J.M., Panposh under Section 363 of the Indian Penal Code. Case of the prosecution is that on 31.01.2011, the informant’s daughter of 17 years, while going to her friend’s house was kidnapped by the petitioner. Apprehending her life and welfare, the information was lodged on receipt of which the Police registered the case and took up investigation of the matter. 3. Mr. Santanu Ku. Sarangi, learned counsel appearing on behalf of the petitioner submits that the F.I.R. is totally false, misleading and wrong. Satyabhama, the daughter of the informant was more than 17 and half years of age as per the FIR. The petitioner and Satyabhama were in love and decided to marry to each other. Now, they are married and a female child has been begotten on 29.09.2012 out of their wedlock and they are living happily. Materials available on record prima facie do not fulfill the ingredients of offence alleged against the petitioner. No specific overt act is alleged against the petitioner. The allegation is made in an omnibus manner. The petitioner believed that a false case has been foisted for the reasons best known to the informant. The petitioner has been falsely implicated in the case. Therefore, further continuation of the case would amount to an abuse of process of law. Ends of justice also demands that the entire criminal proceedings be dropped. In the interest of justice and equity, it is expedient to quash the Tangarpali PS Case No.08/2011 dated 19.02.2011 corresponding to G.R. Case No.215/2011 pending in the Court of learned S.D.J.M., Panposh. 4. In course of hearing, Mr. A. Mohanty, learned counsel for opposite party No.2 files a memo along with two affidavits. In the affidavit dated 30.01.2013, opposite party No.2-Ekna Das stated that he was the informant in the above case. 4. In course of hearing, Mr. A. Mohanty, learned counsel for opposite party No.2 files a memo along with two affidavits. In the affidavit dated 30.01.2013, opposite party No.2-Ekna Das stated that he was the informant in the above case. While lodging the F.I.R. on 31.01.2011, he had given the age of his daughter on the basis of the date recorded in the High School Certificate. At the time of admission in School her age was given less, but the actual age was more than 18 years at the time of occurrence. His daughter and the petitioner have married and begotten a child on 29.09.2012. They are leading a happy and peaceful conjugal life and they have been accepted by their respective families and the society. In affidavit dated 01.02.2013, Satyabhama Das alias Kumbhar, aged about 21 years, wife of Mani alias Saroj Kumbhar, resident of Narayani market, Fertilizer Township, PS: Tangarpali, PO: Rourkela-7, Dist: Sundargarh stated that she has married to the petitioner on 15.02.2011 while she was major. Her father at the time of her admission in the School has reduced her age by putting another date of birth which shows that she was minor while she got married to the petitioner. She was in love with the petitioner and fled away with him as her father was intending to give her marriage with another person which was against her will. Since she fled away with the petitioner, her father filed FIR on the basis of which the above PS Case as well as corresponding G.R. Case was registered. Now, she is leading a happy married conjugal life and blessed with a daughter on 29.09.2012 and her parents have accepted both her and her husband. Learned counsel for opposite party No.2 submits that opposite party No.2 is no more interested for further prosecution of the case. 5. Learned Additional Standing Counsel opposing the submission made by Mr. Sarangi submitted not to quash the FIR. 6. On the rival contentions of both parties, the question that falls for consideration by this Court is whether it is a fit case where this Court in exercise of power under Article 226 of the Constitution of India should quash Tangarpali PS Case No.08/2011 dated 19.02.2011 corresponding to G.R. Case No.215/2011 pending in the Court of learned S.D.J.M., Panposh. 7. On the rival contentions of both parties, the question that falls for consideration by this Court is whether it is a fit case where this Court in exercise of power under Article 226 of the Constitution of India should quash Tangarpali PS Case No.08/2011 dated 19.02.2011 corresponding to G.R. Case No.215/2011 pending in the Court of learned S.D.J.M., Panposh. 7. At this juncture, it would be beneficial to refer to some of the judgments of the Hon’ble Supreme Court. Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 held as follows:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.” 8. The Hon’ble Supreme Court in the case of B.S. Joshi and others Vs. State of Haryana and another, (2003) 4 SCC 675 , held as under: “8. It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. Xx xx xx 12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. 13. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. Xx xx xx 12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. 13. The observations made by this Court, though in a slightly different context, in G. V. Rao v. L.H.V. Prasad and others ( (2000) 3 SCC 693 ) are very apt for determining the approach required to be kept in view in matrimonial dispute by the Courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly extent which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about reopproachment are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts. 14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. 15. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.” 9. Hon’ble Supreme Court in the case of Gian Singh Versus State, 2012 (7) Supreme 1 , held that certain offences bear civil favour arising out of civil, mercantile, commercial, financial, partnership or offences arising out of matrimony, particularly relating to dowry etc. or the family dispute, where the wrong is basically attributed to victim and the offender and the victim and offender have settled all disputes between them amicably irrespective of the fact that such offence is not compoundable, the High Court can quash such cases. The dispute between victim and offender is private in nature in cases of matrimony, if parties resolved that disputes, proceeding should be quashed. 10. This Court in the case of Baby alias Sita Kumari Agrawal Vs. Officer in-charge, Purighat Police Stattion, Cuttack and others, (1993) 6 OCR 186 has quashed the Purighat PS Case No.11/92 corresponding to G.R. Case No. 363 of 1992, instituted at the instance of the father of the petitioner-daughter against her husband on the basis of the admission of the petitioner-daughter that she is living happily with her husband, with the observation that nothing can be more satisfying for the parents to find their daughter living a happy married life. 11. This Court in Dr. Jyotrimaya Nayak Vs. State of Orissa, 2011 (Supp.-II) OLR 355 held that considering the fact the marriage between the petitioner No.1 and opposite party No.2 has been dissolved, continuation of the criminal case would not be in the interest of the either party. Keeping in view the decision of the Hon’ble Supreme Court in the case of B.S. Joshi and others Vs. State of Haryana and another, (2003) 25 OCR (SC) 99, this Court quashed the criminal proceeding pending against the petitioners in G.R. Case No.265 of 2008 before the learned S.D.J.M., Bolangir. 12. In Abinash Rout Vs. Keeping in view the decision of the Hon’ble Supreme Court in the case of B.S. Joshi and others Vs. State of Haryana and another, (2003) 25 OCR (SC) 99, this Court quashed the criminal proceeding pending against the petitioners in G.R. Case No.265 of 2008 before the learned S.D.J.M., Bolangir. 12. In Abinash Rout Vs. State of Orissa, 2011 (Supp.-II) OLR 995, this Court quashed the criminal proceeding in G.R. Case No.526 of 2009 pending before the learned J.M.F.C. (P), Kujang as the dispute between the parties had been amicably settled. 13. Admittedly, in the present case, opposite party No.2 is informant in the present case and on the basis of the FIR filed by him with allegation of kidnapping of his daughter, the above P.S. Case corresponding to the G.R. Case has been registered. Now the said opp. party no.2 in his affidavit dated 30.01.2013 has stated that he accepted the marriage of his daughter with the petitioner and further admitted that at the time of occurrence his daughter was major for the reasons stated in the affidavit. The daughter also in her affidavit dated 01.02.2013 has stated that she was major on the day of occurrence and she is leading a happy conjugal life with the petitioner and they have been blessed with a daughter on 29.09.2012. 14. In view of the facts and circumstances and judicial pronouncements stated above, this Court is of the view that continuance of further prosecution of the present case would be nothing but an abuse of process of law and no purpose will be served in permitting the proceeding to continue any further. Therefore, in the interest of justice, I quash the Tangarpali PS Case No. 08/2011 dated 19.02.2011 corresponding to G.R. Case No. 215/2011 pending before the Court of learned S.D.J.M., Panposh. 15. In the result, the writ petition is allowed.