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2014 DIGILAW 5 (ORI)

Santanu Kumar Panda v. State of Orissa

2014-01-03

S.C.PARIJA

body2014
Judgment : S.C. PARIJA, J. This application has been filed under Section 482 Cr.P.C. for quashing of the order of cognizance dated 16.07.2011, passed by the learned S.D.J.M., Balasore, in C.T.Case No.1725 of 2008, taking cognizance against the petitioners for commission of offences under Sections 498-A/506/34 IPC read with Section 4 of the D.P.Act. 2. Learned counsel for the petitioners does not want to press this application in respect of petitioner no.1, who is the husband of the complainant-opposite party no.2 and as petitioner no.2, who is the mother-in-law of the complainant has died in the meantime, this application is confined to petitioner nos.3 to 6 only. 3. The brief facts of the case, as detailed in the application, is that the complainant-opposite party no.2 married petitioner no.1 on 07.06.1991, which was a love-cum-arranged marriage. The opposite party no.2 gave birth to a male child, Jyoti Ranjan Panda, on 02.02.1993 and from November, 1995, she lived with her husband (petitioner no.1) in New Delhi, who was serving as a Music Teacher in Father Angels School, New Delhi. The opposite party no.2 was serving as a teacher at her native place and as she was suffering from Tuberculosis, she resigned from her service voluntarily with effect from 30.11.1997. After the funeral ceremony of grand mother-in-law of opposite party no.2 in the year 1999, she did not want to go to her in-laws native house and she severed all relationship with the family members of petitioner no.1. 4. While staying in New Delhi, the complainant-opposite party no.2 suffered from severe neurological problem and was treated at AIIMS, New Delhi and the petitioner no.1 had to incur huge expenses for her treatment, for which he was forced to avail loans. The complainantopposite party no.2 started torturing petitioner no.1 and the only son Jyoti Ranjan Panda, as a result of which, petitioner no.1 had filed two complaints before the Delhi Police on 24.07.2007 and 13.03.2008. 5. The father-in-law of the complainant-opposite party no.2 expired on 13.02.2008 but she did not attend the funeral rites and stayed back in New Delhi with her brother and sister. After the funeral rites of the father, when petitioner no.1 arrived at New Delhi, he found his house locked and on enquiry he came to know that the complainant-opposite party no.2 has left the house with all her belongings on 23.05.2008 handing over the keys to the neighbour. 6. After the funeral rites of the father, when petitioner no.1 arrived at New Delhi, he found his house locked and on enquiry he came to know that the complainant-opposite party no.2 has left the house with all her belongings on 23.05.2008 handing over the keys to the neighbour. 6. The complainant was harassing and torturing petitioner no.1 regularly by her aggressive and erratic behaviour and inspite of best efforts, when petitioner no.1 was unable to save their matrimonial relationship, he filed a divorce suit vide HMA No.316 of 2008 on 25.07.2008 in the Court of the District Judge, Tis Hazari, Delhi, seeking divorce from the complainant-opposite party no.2, which is still subjudice. 7. On coming to know of the divorce suit filed by petitioner no.1, the complainant-opposite party no.2 lodged a written report before the Basta Police Station, making false and frivolous allegations against petitioner no.1 and his family members, which was registered as Basta P.S. Case No.143 of 2008 under Sections 498-A/323/506/34 IPC and Section 4 of the D.P. Act. After registration of the FIR, the police took up investigation, recorded the statement of the complainant and other witnesses and on coming to find that there was no evidence in support of the allegations made in the FIR, the police submitted closure report vide Final Form No.179, dated 19.12.2009, before the learned Magistrate. On receipt of the closure report, learned Magistrate issued notice to the complainant-opposite party no.2, who filed the protest petition, which was registered as C.T.No.1725 of 2008, making various false and fabricated allegations against petitioner no.1 and his family members. Learned Magistrate recorded the initial statement of the complainant and the evidence of the witnesses under Section 202 (2) Cr.P.C. and took cognizance against the husband (petitioner no.1) and his family members (petitioner nos.2 to 6) under Sections 498-A/323/506/34 IPC and Section 4 of the D.P.Act and directed issue of summons to the accused persons, which is the subject matter of challenge in the present application. 8. The case of the petitioner nos.3 to 6 is that accepting the allegations made in the protest petition to be true, no case is made out against them and the same are an after-thought, after the divorce petition was filed by the petitioner no.1. 8. The case of the petitioner nos.3 to 6 is that accepting the allegations made in the protest petition to be true, no case is made out against them and the same are an after-thought, after the divorce petition was filed by the petitioner no.1. It was submitted that this is obvious from the fact that in the written statement filed by the complainant in the divorce petition, no such allegations have been made against the present petitioner nos.3 to 6, as has been made out in the protest petition. It was further submitted that the entire allegations made in the protest petition are mala fide and has been so made with the oblique motive to harass the petitioner nos.3 to 6, especially when they had no relationship with the complainant for last many years, who was staying in New Delhi with her husband and child. In this regard, learned counsel for the petitioners has relied upon a decision of the apex Court in Preeti Gupta and another Vs. State of Jharkhand and another, (2010) 7 SCC, 667, where the Hon’ble Court while dealing with the allegations made under Section 498-A IPC has observed that there has been rapid increase in matrimonial litigations in our country and all the courts including the Supreme Court are flooded with matrimonial cases. Hon’ble Court further observed that it is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations and that large number of such complaints are not even bona fide and are filed with oblique motive. 9. It is the further case of the petitioners that the initial statement of the complainant recorded by the learned Magistrate as well as the statement of the witnesses recorded during inquiry under Section 202 Cr.P.C. does not make out a case under Section 498-A IPC against petitioner nos.3 to 6, inasmuch as, there is no specific allegation of cruelty or harassment for dowry against them, so as to constitute an offence under Section 498-A I.P.C.. In this regard, learned counsel for the petitioners has relied upon a decision of the apex Court in Ramesh and others Vs. In this regard, learned counsel for the petitioners has relied upon a decision of the apex Court in Ramesh and others Vs. State of T.N., (2005) 3 SCC 507 , where the Hon’ble Court while dealing with a near similar case under Section 498-A/406 IPC and Section 4 D.P. Act, has observed as follows: “xxx xxx Certain acts of taunting and ill-treatment of the informant by her sister-in-law (the appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the FIR is that on some occasions, she directed the complainant to wash WC and she used to abuse her and used to pass remarks such as “even if you have got much jewellery, you are our slave”. It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in-law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible. Neither the FIR nor the chargesheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed.” 10. Learned counsel for the petitioners has also relied upon a decision of the apex Court in Geeta Mehrotra and another Vs. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed.” 10. Learned counsel for the petitioners has also relied upon a decision of the apex Court in Geeta Mehrotra and another Vs. State of Uttar Pradesh and another, (2012) 10 SCC 741 , where the Hon’ble Court while dealing with a case under Sections 498-A/323/504/506 IPC read with Sections 3/4 of the D.P.Act, has referred to the observations in Ramesh case (supra) and has come to hold that if the FIR as it stands does not disclose specific allegation against the accused, more so against the co-accused, specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife. 11. It is the further case of the petitioner nos.3 to 6 that after lodging of the FIR by the complainant, which was registered as Basta P.S. Case No.143 of 2008, the police carried out a detailed investigation, recording the statement of the informant-opposite party no.2 and other witnesses and came to a positive finding on the basis of the materials collected during investigation, that there is no evidence in support of the allegations made in the FIR and accordingly submitted closure report. Therefore, learned Magistrate was not justified in ignoring the same and taking cognizance against the present petitioner nos.3 to 6 in a mechanical manner by merely referring to the statements of the complainant and other witnesses. In this regard, it is submitted that as the statement of the complainant and witnesses does not make out any case against the present petitioner nos.3 to 6, the impugned order of cognizance cannot be sustained. 12. In this regard, it is submitted that as the statement of the complainant and witnesses does not make out any case against the present petitioner nos.3 to 6, the impugned order of cognizance cannot be sustained. 12. Learned counsel appearing for the complainant-opposite party no.2, on the other hand, while supporting the impugned order of cognizance, submitted that the police did not carry out a fair and proper investigation into the FIR lodged by the informant-opposite party no.2 against her husband and his family members and filed the closure report in a perfunctory manner. It was further submitted that as the statement of the complainant and the witnesses recorded by the learned Magistrate during inquiry under Section 202 Cr.P.C. does make out a prima facie case against the petitioner nos.3 to 6, no interference is warranted at this initial stage, when all facts are yet to come on record. 13. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. Section 482 does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliauid alicui concedit, concedere videtur et id sine guo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of court, to allow any action which would result in injustice and prevent promotion of justice and in exercise of such powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report or the complaint, the court may examine the question of fact. When a report or complaint is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto. 14. When no offence is disclosed by the report or the complaint, the court may examine the question of fact. When a report or complaint is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto. 14. The scope of exercise of power under Article 226 of the Constitution and Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice were set out in some detail by the Supreme Court in State of Harayana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 . The Hon’ble Court made it clear that 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 to myriad kinds of cases wherein such power should be exercised: “(1) 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. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code. (3) 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 offence and make out a case against the accused. (4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155(2) of the Code. (5) Where the allegations 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. (5) Where the allegations 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. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 15. In the case of Punjab National Bank v. Surendra Prasad Sinha, AIR 1992 SC 1815 , the Supreme Court has observed that judicial process should not be an instrument of oppression or needless harassment. There lies the responsibility and duty on the Magistrate to find out whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the accused persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. 16. In the present case, it is seen that the complainant-opposite party no.2 filed a complaint petition before the learned Chief Judicial Magistrate, Balasore, which was sent to the I.I.C., Basta Police Station, Balasore, under Section 156(3) Cr.P.C., for registering the same as an FIR and to investigate into the allegations made therein and submit the Final Form before the competent Court having jurisdiction. Pursuant to such direction, the complaint petition of the complainant was registered as Basta P.S. Case No.143, dated 8.11.2008, under Sections 498-A/323/506/34 IPC and Section 4 D.P.Act. Pursuant to such direction, the complaint petition of the complainant was registered as Basta P.S. Case No.143, dated 8.11.2008, under Sections 498-A/323/506/34 IPC and Section 4 D.P.Act. The police after investigation submitted Final Form before the learned S.D.J.M., Balasore, with the following findings: “During investigation it came to light that the marriage of complt., Arati Panda was held in the year 1991. It was a love cum arranged marriage. She was staying at her husband’s house at Vill-Somanathpur upto 95 and thereafter, she stayed at Delhi with her son. If it was a fact that she was tortured at Somnathpur during her stay, why she remained silent since last 13 yrs. As it was a love cum arranged marriage, as per statement of witnesses no dowry was demanded. The list of dowry articles given by the complt. has not been signed by any of her family members. Hence the authenticity cannot be relied. She further alleged that she was forced by her husband to leave the job with threatening for which she left her job on 31.12.1998 but during investigation it was found that due to constant sick she left the job on 30.11.97. The complt. further alleged that showing her as crack mind, her husband tortured her mentally and physically. But it was ascertained that the complt. was suffered from Neurological problem and she was under the treatment at AIIMS, New Delhi from 30.03.05 to 15.04.05. The other allegations were also not proved. Rather her husband alleged at Hauz khas P.S., New Delhi against her about her torture to him on 24.07.07 and 13.03.08. As the allegations made by complt. are not proved for which after obtaining necessary orders, I returned the case as F.R.T. insufficient evidence U/ss.498(A)/323/506/34 I.P.C./ 4 D.P. Act.” 17. On receiving notice from the learned Magistrate regarding submission of closure report by the police, the complainant filed protest petition which was registered as C.T.No.1725 of 2008, making various allegations against all the petitioners. Learned Magistrate after recording the initial statement of the complainant, proceeded to record the statement of other witnesses, as provided under Section 202 (2) Cr.P.C. and on consideration of the same, has taken cognizance against all the petitioners for commission of offences under Sections 498-A/323/506/34 IPC and Section 4 of the D.P. Act and directing issue of process to the accused persons. 18. 18. A bare perusal of the initial statement of complainant-opposite party no.2 recorded by the learned Magistrate does not make out a case under Section 498-A IPC against the petitioner nos.3 to 6, inasmuch as, there is no specific allegation with regard to cruelty or harassment against any of the said petitioners. In her initial statement, the complainant has only alleged that she was not pulling on well with petitioner no.3, who was always quarrelling with her. It has been further alleged that while she was pregnant, she was being forced to do all house hold works and that due to quarrel between her and petitioner no.3, her husband (petitioner no.1) use to assault her. These allegations, even if true, do not amount to harassment with a view to coercing the complainant or her relation to meet an unlawful demand for any property or valuable security, so as to constitute an offence under Section 498-A IPC. 19. The statements of the witnesses recorded by the learned Magistrate under Section 202 (2) Cr.P.C. are general in nature and the bald allegations made therein do not make out any specific case against petitioner nos.3 to 6 with regard to cruelty or harassment being meted out to the complainant and no overt act has been attributed to them, in order to prima facie establish the offence under Section 498-A IPC or any other offence of which cognizance has been taken. Mere casual reference of the names of the petitioner nos.3 to 6, who are the family members of the husband (petitioner no.1) in a matrimonial dispute without any specific allegation of involvement in the matter would not justify taking cognizance against them, overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the husband in a matrimonial dispute.. 20. Applying the principles of law as discussed above to the facts of the present case, the inevitable conclusion is that, even if the allegations made by the complainant in the protest petition and the statement of the witnesses recorded under Section 202 (2) Cr.P.C. are taken at their face value and accepted in their entirety, no offence is made out against the petitioner nos. 3 to 6 under Sections 498-A/506/34 IPC and Section 4 of the D.P. Act. 3 to 6 under Sections 498-A/506/34 IPC and Section 4 of the D.P. Act. Hence, the continuance of the criminal proceeding against the said petitioner nos.3 to 6 would be an abuse of the process of court. 21. For the reasons as aforestated, the impugned order of cognizance dated 16.07.2011, passed by the learned S.D.J.M., Balasore, in C.T. Case No.1725 of 2008, taking cognizance of offences under Section 498-A/506/34 IPC and Section 4 of the D.P. Act against the petitioner nos.3 to 6 is hereby quashed. 22. The application in respect of the petitioner no.1 (husband) is dismissed as not pressed. CRLMC is accordingly disposed of. CRLMC disposed of.