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2015 DIGILAW 720 (ORI)

KABITA PRADHAN v. PRAMILA KABITA NAYAK (ORISSA)

2015-12-22

J.P.DAS

body2015
JUDGMENT : J.P. Das, J. - This is an application under Section 482 of the Code of Criminal Procedure ('Code' in short) with a prayer to quash the proceeding pending before the learned S.D.J.M., Bhubaneswar vide I.C.C. No.443(A) of 1999 filed by the present opposite party against the present petitioner along with others as accused wherein cognizance of the offences punishable under Sections 448/419/120-B of the Indian Penal Code ('I.P.C.' in short) has been taken against all the accused persons. 2. The present opposite party filed the complaint case with the contentions that she married one Satyananda Nayak after the death of his first wife. She was staying at the native village of her husband and her husband was staying in a government quarters allotted to him at Bhubaneswar as an employee of the Survey of India. She alleged that on 13.12.1998 her husband came to the native village to see their ailing mother and due to illness stayed on medical leave till 26.02.1999. During the aforesaid period taking advantage of the absence of complainant's husband in the government quarters allotted to him, the accused persons namely the present petitioner, her father and two officers of Survey of India entered into a conspiracy and falsely identifying the accused no.1 namely the present petitioner as the legally married wife of Satyananda Nayak forcibly entered inside the government quarters of the said Satyananda Nayak by breaking open the lock of the door. The complainant further alleged that despite complaints made by her husband to the concerned authority of Survey of India, no action was taken to evict the unauthorised occupants of the said quarters and on the other hand her husband received a letter from the concerned authority that the lady staying in the quarters claims to be the legally married wife of said Satyananda Nayak. With the aforesaid submissions, she contended that although the quarters allotted to her husband was under unauthorised occupation of some stranger still the house rent was deducted from the salary of her husband and her repeated approaches to the authorities and to the local police, yielded no result. Hence, she filed the complaint for necessary action as per the law. 3. Hence, she filed the complaint for necessary action as per the law. 3. Pursuant to the complaint petition, learned S.D.J.M., Bhubaneswar made an enquiry under Section 202 of the Code and took cognizance of the offences against the accused persons under Sections 448/419/120-B, I.P.C. and issued notices for their appearance. 4. It has been submitted in the present petition that the petitioner who is the accused no.1 in the complaint petition is the legally married second wife of Satyananda Nayak and their marriage took place on 13.08.1997 after the death of his first wife named Pramila Nayak. After her marriage, the said Satyananda Nayak changed the name of the petitioner from Kabita Pradhan to Pramila Kabita Nayak and informed his authorities for necessary correction of records. The petitioner continued to stay in the alleged quarters allotted in favour of her husband since her marriage. But since there was some nonpayment of dowry amount, the petitioner was tortured by her husband for which she lodged a complaint which was enquired into and charge sheeted by the Police of Chandrasekharpur Police Station vide G.R. Case No.653 of 1999 under Sections 498-A/506/34, I.P.C. read with Sections 3 and 4 of the D.P. Act. It has further been submitted that said Satyananda Nayak filed a Title Suit in the court of learned Civil Judge (Jr. Division), Bhubaneswar for a declaration that the present petitioner is not his wife and for her eviction from the quarters alleging her as a trespasser. The said suit was dismissed by the learned Civil Judge (Jr. Division), Bhubaneswar which ultimately traveled to this Court in Second Appeal and thereafter to the Hon'ble Supreme Court where it was sub-judice by the time of filing of the present petition. It has further been submitted that on a query made by the Director, Survey of India regarding marital status of said Satyananda Nayak, the matter was enquired into by the I.G. of Police, HRPC, Orissa and it was found out that the present petitioner was the real second wife of the said Satyananda Nayak and after being implicated in a case as stated herein before, the said Satyananda has married again secretly to another lady who has filed the complaint case. 5. 5. Apart from the aforesaid factual contentions, it was submitted in course of hearing of the present petition that while two of the accused persons in the complaint case are government officials working in Survey of India, the learned trial court has taken cognizance against them without prior sanction of the appropriate authority for which the cognizance is liable to be quashed. It was also submitted that cognizance of the offences was taken two years after the alleged occurrence which was not permissible under law. 6. On the aforesaid submissions, it has been prayed that the cognizance and the proceeding in the complaint case pending before the learned S.D.J.M., Bhubaneswar should be quashed in the interest of justice since it would be otherwise an abuse of the process of law. 7. As against this, it was submitted by learned counsel appearing for the opposite party that the contentions as raised on behalf of the petitioner are not factually correct. It was submitted that the suit filed by the husband of the opposite party namely Satyananda Nayak for declaration that the present petitioner is not his legally married wife has been decreed by this Court in S.A.O. No.10 of 2008 by order dated 03.12.2010 and the S.L.P. filed by the petitioner against the said order before the Hon'ble apex Court has been dismissed on the ground of delay by order dated 24.02.2014. Further review petition against the said order of the Hon'ble apex Court has also been dismissed by order dated 08.07.2014 vide Review Petition (C) No.1031-1033 of 2014. Thus, it was submitted that the marital status between the present petitioner and the husband of the opposite party has been finally set at rest. 8. It was also submitted that as regards the sanction as required under Section 197 of the Code for proceeding against public servant in a criminal proceeding, the said officers are not parties in the present proceeding and hence, the present petitioner cannot claim the relief on their behalf. As regards the delay in taking cognizance, it was submitted that one of the alleged offences is under Section 419, I.P.C. which is punishable with imprisonment for three years or fine or both. Hence, as per Section 468 of the Code, limitation is three years for taking cognizance of an offence punishable with imprisonment for a term exceeding one year but not exceeding three years. Hence, as per Section 468 of the Code, limitation is three years for taking cognizance of an offence punishable with imprisonment for a term exceeding one year but not exceeding three years. Hence, in this case the cognizance having been taken within two years of the alleged occurrence, there was no illegality in the impugned order. 9. Lastly, it was submitted by learned counsel for the opposite party that the present petition as laid before the Court is not maintainable in law, since an earlier application filed by the present petitioner with self same pleadings for similar relief vide Criminal Misc. Case No.842 of 2014 was rejected by this Court by a speaking order dated 04.03.2014 passed in the said criminal misc. case. 10. The rival contentions of both the sides are being considered carefully. The case record in the earlier CRLMC No.842 of 2014 was placed before the Court. Learned counsel for the present petitioner submits that the said petition was filed for quashing of the order issuing N.B.W. against the petitioner and was not for quashing the proceeding. But it is seen from the case record that in paragraph-9 of the petition it was pleaded that : "considering the facts and circumstances of this case the proceeding before the S.D.J.M. is an abuse of process of law and is liable to be quashed". Further in the prayer portion it was mentioned : "therefore the petitioner prays that the I.C.C. No.443(A) of 1999 pending in the court be quashed and also N.B.W. issued against the petitioner be withdrawn". The submissions made in paragraph-9 of the said petition is absolutely the same in paragraph-12 of the present petition so also the prayer excepting the withdrawal of N.B.W., which has also been scored through in the prayer portion of the present petition. The earlier application was disposed of by order dated 04.03.2014 with the observations that : "considering the submissions made and keeping in view the findings of the trial court as given in the impugned order, I do not find any justification to interfere with the impugned order. xx xx xx" Hence, the similar prayer with similar contentions having once being rejected by this Court, the present petition is not maintainable in law on this score alone. 11. xx xx xx" Hence, the similar prayer with similar contentions having once being rejected by this Court, the present petition is not maintainable in law on this score alone. 11. However, the other contentions like the marital relationship between the petitioner and the said Satyananda Nayak and the absence of sanction as required under Section 197 of the Code are also considered. The learned counsel for the petitioner placed before the Court the observations made in some orders of this Court and the Central Administrative Tribunal relating to the relationship between the petitioner and Satyananda Nayak, besides the conduct of said Satyananda inviting departmental proceeding against him. But in my opinion, those are not material in order to support the contention made on behalf of the petitioner that the continuance of the criminal proceeding would be an abuse of process of law. 12. Sec 482 of the Code reads as follows : "Saving of inherent power of High Court : Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." The section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely : 1. to give effect to an order under the Code, 2. to prevent abuse of the process of the court, 3. to secure the ends of justice. Though the jurisdiction exists and is wide in its scope, it is a rule of practise that it will only be exercised in exceptional cases. It has been the observation of the Hon'ble Apex Court that in order to determine whether there has been an abuse of process of any court, the High Court is to see : 1. Whether a bare statement of facts of case would be sufficient to convince that it is a fit case for interference at intermediate stage. 2. Whether in the admitted circumstances it would be a mock trial if case is allowed to proceed. Whether a bare statement of facts of case would be sufficient to convince that it is a fit case for interference at intermediate stage. 2. Whether in the admitted circumstances it would be a mock trial if case is allowed to proceed. In the landmark case, State of Haryana v. Bhajan Lal, 1992 Supp.(1) SCC 335, the Hon'ble Supreme Court considered in detail the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR and summarized the legal position by laying down a number of guidelines, out of which the following two are relevant for the present purpose : (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 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. In the case of Indian Oil Corporation v. NEPC India Ltd. and Others, (2006) 6 SCC 736 , the Hon'ble Apex Court also laid down following principles : 1. The High Courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution. 2. The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence. 13. On the touchstone of the aforesaid guiding principles, considering the facts and circumstances of the case at hand, I do not find any persuading reason to agree with the contentions made on behalf of the petitioner that the continuance of trial of the complaint case would be an abuse of the process of the Court. 13. On the touchstone of the aforesaid guiding principles, considering the facts and circumstances of the case at hand, I do not find any persuading reason to agree with the contentions made on behalf of the petitioner that the continuance of trial of the complaint case would be an abuse of the process of the Court. It has been alleged that taking the advantage of the absence of the husband of the complainant from the official quarters allotted to him the petitioner-accused in connivance with the other accused persons forcibly entered into the said quarters claiming to be the married wife of the husband of the complainant. The claim of the petitioner is that she has been staying in the said quarters since her marriage with Satyananda Nayak, the husband of the complainant. Thus on the face value of the claim and counter claim, it cannot be said that there is absolutely no case prima facie or the trial of the allegations on evidence would be a mockery. 14. As regards the absence of sanction for prosecuting the public servants against whom cognizance has been taken, they are not parties before the Court in the present proceeding and hence, they are left open with the opportunity to raise such a plea in course of trial if so required. As regard the marital relationship between the parties, the said question is not a fact in issue in the present proceeding or before the trial court in the criminal proceeding. The contentions and the plea raised on behalf of the petitioner regarding the communications made between Satyananda Nayak and his employer office or the enquiry made by any authority in that regard are well available to the present petitioner to be raised before the trial court in course of trial but those do not justify the submissions that the criminal proceeding is liable to be quashed. 15. Some other contentions were made by learned counsel for the petitioner regarding the defects in the complaint petition and some omissions and contradictions in the case of the complainant. The observations of the Hon'ble Supreme Court quoted herein before take care of such submissions. 16. In the result of my aforesaid discussions and findings, the present petition invoking jurisdiction of the Court under Section 482 of the Code merits no consideration and accordingly, stands rejected.