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2013 DIGILAW 469 (ORI)

Pramod Kumar Agarwal v. State of Orissa

2013-11-11

M.M.DAS

body2013
JUDGMENT M.M. DAS, J. : The petitioners have filed this CRLMC under Section 482 Cr.P.C. with a prayer to quash the complaint proceeding bearing I.C.C. No.30 of 2009 pending before the learned J.M.F.C., Khariar. The learned Magistrate by order dated 27.5.2009 finding that a prima facie case is made out under Section 498-A/302/304-B/201/34 I.P.C. read with Section 4 of the D.P. Act against the accused persons, namely, Pramod Kumar Agrawal, Smt. Bimlesh Devi, Jyoti Agrawal, Mahesh Agrawal and Satish @ Sachin Agrawal and further finding that there is a prima facie case made out under Section 302/201/34 IPC. against accused-Ghanshyam Gosai took cognizance of the said offences against the aforesaid accused persons and directed issuance of N.B.W.A. against them. It appears from the record that the complaint petition was filed by opposite party No.2-Rajesh Kumar Agrawal. In the said complaint petition, it has been stated that the complainant is the elder brother of the deceased. The marriage of the deceased with accused-petitioner No.1 was solemnized on 5.3.2003 at Khariar Road. The accused-petitioner No. 2 is the driver of the vehicle in which the deceased was going to New Delhi with the accused-petitioner No.1 in a Car. The accused-petitioner Nos.3 to 6 are in-laws of the deceased. It has been alleged by the complainant that after about two months from the date of their marriage, the accused-petitioner No.1 along with the in-laws, pressurized the deceased to bring Rs.7,00,000/- (seven lakhs) from her parents as dowry. The deceased used to come to her paternal house in almost every three months from New Delhi. She intimated the complainant and his family members about the consistent torture and assault by her husband and his family members to bring the dowry. On different occasions, the family members of the deceased had gone to the house of the accused for settlement of the matter, but to no avail. Further, after birth of the child, the accused-petitioner No.1 developed extra marital relationship with another lady, which was informed by the deceased to the complainant. In spite of the fact that the deceased was subjected to regular torture and assault but she tolerated the same, and also requested her family members not to approach the Court of Law as it will damage her marital relationship. In spite of the fact that the deceased was subjected to regular torture and assault but she tolerated the same, and also requested her family members not to approach the Court of Law as it will damage her marital relationship. Six months prior to the occurrence, the deceased intimated telephonically about the torture and demand of dowry by the petitioner No.1 at New Delhi for which the complainant and his younger brother went to New Delhi and assured the accused-petitioner No.1 to fulfil the dowry demand within a short span of time. On 12.3.2009, the accused-petitioner No.1 left the deceased in her paternal house and the family members of the deceased were threatened that only after fulfilment of the demand of dowry, the deceased will be taken to New Delhi otherwise she will be killed, for which she stayed n her paternal house. On 30.4.2009, the accused-petitioner No.1 informed the complainant over phone to be ready with the dowry as demanded. On the next day i.e. on 1.5.2009, he suddenly arrived at Khariar in a Santro Car bearing Registration No.DL-4C-ND-6583 and put-forth his demand before the family members of the deceased. Since the family members of the deceased expressed their incapacity, the petitioner No.1 forcibly took the deceased and her son, and left their house with intimation that by the next day, money should be paid to him. Without intimation to any of the family members of the deceased, the petitioner No.1 proceeded to New Delhi by the said Car with the deceased and her son. On 4.5.2009 at about 10.30 P.M., one Kamal Aggarwal and Bikash Aggarwal, who are not the family members of the accused-petitioner No.1, informed the family members of the deceased that there was an accident near BHEL under Babina Police Station and the complainant’s sister i.e. the wife of petitioner No.1, has expired in the said accident. Smelling foul play, the complainant informed the matter at Khariar Police Station and accordingly, due intimation was forwarded to the Station House Officer at Babina Police Station to conduct post-mortem examination only after arrival of the complainant’s family members. The petitioner No.1 never intimated about the accident to the family members of the deceased. Smelling foul play, the complainant informed the matter at Khariar Police Station and accordingly, due intimation was forwarded to the Station House Officer at Babina Police Station to conduct post-mortem examination only after arrival of the complainant’s family members. The petitioner No.1 never intimated about the accident to the family members of the deceased. On 5.5.2009, the complainant reached at BHEL Out-Post under Babina Police Station and was intimated that the dead-body of the deceased has already been handed over to the petitioner No.1 and his brother Satish Agarwal after post-mortem examination. The Santro vehicle in which they moved has been badly damaged and the severity of the damage speaks of massive thrust and injury to the driver and the petitioner No.1, who were sitting in the front seats of the said vehicle, but none of them have sustained any serious injuries. The child who was on the lap of her mother has not sustained any injury rather the deceased sustained sever injury on account of which she succumbed. It was also ascertained by the complainant that on the basis of the F.I.R. lodged by the accused-petitioner No.1 making false and fabricated statements, G.R. Case No.72 of 2009 has been registered under Sections 279/237/338/304 (A) I.P.C. read with Section 179 of the M.V. Act. The petitioner No.1 was sent to Maharani Laxmibai Medical College and Hospital at Jhansi from where he absconded. After absconding, the accused-petitioner No.1 and his brother Satish Agrawal managed to cause post-mortem examination on the dead-body of the deceased and reached at Khariar Road on 6.5.2009 at 11.30 A.M. On the next day morning at about 7.00 A.M., the accused persons took the dead-body to the cremation ground where the complainant reached along with his family members and found mark of violence and homicidal injuries around the neck of the deceased. Immediately the complainant requested the I.I.C., Junk Police Station to conduct an enquiry and fresh post-mortem examination on the dead-body of the deceased for bringing out the truth, but the I.I.C. expressed his inability to do so and the petitioner No.1 was moving in cremation ground almost without any injury. The complainant has also alleged that occurrence of death of the deceased is nothing but a planned cold blooded murder which has been projected as an accident. The complainant has also alleged that occurrence of death of the deceased is nothing but a planned cold blooded murder which has been projected as an accident. The circumstance under which such allegations were made is that, there was continuous torture and demand of dowry on the deceased and strained relationship between her and the accused-petitioner No.1. The sudden arrival of the accused-petitioner No.1 at Khariar Road and his erratic behaviour to take back his wife on the same day within two hours was also a ground for suspicion. The petitioner No.1 also did not intimate his family members with regard to moving out from Khariar Road as well as with regard to the act of absconding from the medical. He also did not inform about the death of his wife to her parents. The further suspicious material as pointed out by the complainant is the sudden appearance of the accused-petitioner No.1 at Khariar in a Car by travelling a distance of 1700 K.Ms. from Delhi to Khariar Road in spite of availability of convenient means of travel. The other fact, which has been verified by the complainant, was that the accused-petitioner No.1 as well as the driver and his son Himansu in spite of severity of the accident suffered from no injury inasmuch as autopsy was conducted in absence of the family members of the deceased. 2.Learned counsel for the petitioners pressed the following grounds before this Court. (i)Since due intimation regarding the factual matrix involved in the complaint petition was given, which is under due consideration of the investigating agency at Jhansi, the present complaint case is not maintainable as the complainant has accepted the jurisdiction of the Court at Jhansi. (ii)Since the occurrence has taken place at Jhansi, the Magistrate at Khariar cannot investigate into the same in proper prospective and the investigation can only be done at Jhansi by the investigating agency at Jhansi. (iii)The complainant without filing any information before Khariar Police directly instituted the complaint before the learned Magistrate and the learned Magistrate without directing enquiry under Section 156 (3) Cr.P.C. took cognizance and issued process against the accused petitioners. (iv)The Magistrate has committed illegality in not referring or considering the police papers relating to the occurrence investigated by the police at Jhansi. (iv)The Magistrate has committed illegality in not referring or considering the police papers relating to the occurrence investigated by the police at Jhansi. Further the Magistrate ought to have set the criminal justice system into motion only after examining the police officer who investigated the case at Jhansi and after their records. (v)The complaint is nothing but based on false and vexatious allegations for which the same is required to be quashed. (vi)The learned Magistrate has entertained the complaint and issued process against the accused petitioners only on the basis of the statement of complainant and his witnesses on presumption that the petitioner No.1 might have killed the deceased ignoring the evidence collected by the police at Jhansi. 3.Learned counsel for the opposite party No.2-complainant, however, contended that the contentions of the accused petitioners are nothing but beyond the very principles of criminal jurisprudence. The main contention is that this is a case in which two F.I.Rs. have been lodged and therefore, the complaint case is not sustainable in the eye of law. He further submitted that on presentation of a complaint, the learned Magistrate is required to act within the purview and ambit of Section 190 read with Section 200 of the Code of Criminal Procedure. In the instant case, after filing of the complaint petition by the complainant, the learned Magistrate conducted an enquity under Section 202 Cr.P.C. by examining the complainant and all the four witnesses cited in the complaint petition. Since on examination of the complainant as well as all the four witnesses, a prima facie case was made out under Section 498-A/302/304-B/201/34 I.P.C. read with Section 4 of the D.P. Act, cognizance to the said offences has been taken and process was issued against the accused persons. Hence, no fault can be found with the said order and interference as sought for is uncalled for. 4.During course of hearing, learned counsel for the petitioners submitted the copy of the charge-sheet with reference to the investigation conducted by the police at Jhansi. It appears from the said charge-sheet that Jhansi Police has stated the case to be a case of accident. It would be further apparent that investigation was made by Jhansi Police on receiving information about the accident. It appears from the said charge-sheet that Jhansi Police has stated the case to be a case of accident. It would be further apparent that investigation was made by Jhansi Police on receiving information about the accident. No, FIR has been registered on the information of the complainant inasmuch as no investigation has been conducted by the said police with reference to the allegation which is the subject matter of the complaint. 5.The provisions incorporated in the Code of Criminal Procedure clearly mandate that any person aggrieved is free to lodge a complaint invoking the jurisdiction of the Court for initiation of a criminal proceeding when no action was taken by the police nor the Magistrate is bound by any investigation conducted by the police. In the instant case, the charge-sheet submitted by Jhansi Police clearly shows that investigation has been taken up by the police treating the case to be an accident case against the accused (driver) who is not the accused in the complaint petition. It is also clear that no F.I.R. has been registered on the information of the complainant by Jhansi Police nor any investigation has been done with reference to any of the allegations made by the complainant in the complaint petition. The complainant has also obtained information under the R.T.I. Act from the Information Officer at Janapath, Jhansi to the effect that no F.I.R. has been registered on the information lodged by the complainant before the said police. 6.This Court, therefore, finds that allegations with regard to the offences so also the accused in Crime No.75 of 2009 investigated by the Investigating Officer at Jhansi are totally different and the offences for which charge-sheet has been submitted so also the accused who has been charge-sheeted, are totally different. Since neither the accused nor the offences in the criminal case investigated by the police at Jhansi is similar to the offences as alleged in the complaint petition for which cognizance has been taken in the complaint petition, the stand of the petitioners cannot be sustained. 7.Learned counsel for the petitioners relying upon the decision in the case of T.T. Antony v. State of Kerala and others, AIR 2001 SC 2637 as well as the decision in the case of Suresh v. Mahadevappa Shivappa Danannava and another, AIR 2005 SC 1047 , in support of his contention, submitted that there cannot be two F.I.Rs. 7.Learned counsel for the petitioners relying upon the decision in the case of T.T. Antony v. State of Kerala and others, AIR 2001 SC 2637 as well as the decision in the case of Suresh v. Mahadevappa Shivappa Danannava and another, AIR 2005 SC 1047 , in support of his contention, submitted that there cannot be two F.I.Rs. for the self-same incident and hence, there cannot be two parallel investigation. In the case of T.T. Antony (supra), the Supreme Court, on a different context, finding on a comparison and critical examination of the F.I.Rs. in Crime Nos.353 and 354 of 1994 on one hand and F.I.R. in Crime No.268 of 1997 on the other that they disclose the date and place of occurrence which are the same and referring to the case of Ram Lal Narang and others v. State (Delhi Administration), AIR 1979 SC 1791 , observed that having regard to the test laid down by the Supreme Court in Narang’s case, it was found that in truth and substance, the essence of the offence in Crime Nos. 353 and 354 of 1994 was the same as in Crime No.268 of 1997. Thus finding, the Supreme Court came to the conclusion that the registration of the second F.I.R. under Section 154 Cr.P.C. on the basis of the letter of the Director General of Police as Crime No.268 of 1997 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence and quashed the same. In the case of Suresh (supra), the Supreme Court quashed the complaint case on the basis of inordinate laches on the part of the complainant. 8.In view of the distinctive facts involved in the aforesaid two cases before the Supreme Court, I am of the considered view that the ratio of the said decisions are not applicable to the facts of the present case where investigation made by Jhansi Police is totally different i.e. on a occurrence of road accident, whereas the complaint petition has been filed for separate offences against a different set of accused persons none of whom were accused in the case investigated by Jhansi Police. In the case of Shivshankar Singh v. State of Bihar and another, (2012) 1 SCC 130 , the Supreme Court in paragraph-10 of the said judgment repelled the contentions made on behalf of the respondents therein that as in respect of the same incident i.e. dacoity and murder of Gopal Singh, the appellant himself along with others are facing criminal trial, proceedings cannot be initiated against respondent No.2 at his behest as registration of two F.I.Rs. in respect of the same incident is not permissible in law, for the simple reason that law does not prohibit registration and investigation of two F.I.Rs. in respect of the same incident in case the versions are different. The Supreme Court further laid down that the test of sameness has to be applied otherwise there would not be cross-cases and counter-cases. Thus, filing another F.I.R. in respect of the same incident having a different version of events is permissible. In the said judgment, the Supreme Court has also relied upon the ratio of the decision in the case of Ram Lal Narang (supra). 9.With regard to exercise of power under Section 482 Cr.P.C., it is by now well settled in various judgments of the Supreme Court beginning from the off quoted decision in the case of State of Haryana v. Bhajan Lal, 1992 Suppl. 9.With regard to exercise of power under Section 482 Cr.P.C., it is by now well settled in various judgments of the Supreme Court beginning from the off quoted decision in the case of State of Haryana v. Bhajan Lal, 1992 Suppl. (1) SCC 335 that such power to quash the criminal proceeeding should be exercised where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magsitrate within the purview of Section 155 (2) of the Code or where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offnece and make out a case against the accsued or where the allgations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused or where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengence on the accused and with a view to spite him due to private and personal grudge. 10.Analyzing the facts of the present case and finding that the learned Magistrate after due enquiry under Section 202 Cr.P.C. considering all materials brought before him has found a prima facie case to have been made out against the petitioners, this Court finds that there is absolutely no ground made out to quash the complaint case or the order of taking cognizance passed by the learned Magistrate. In the result, therefore, the CRLMC fails and is accordingly dismissed. CRLMC dismissed.