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2016 DIGILAW 484 (ORI)

Madhusmita Sahoo @ Anusuya v. State of Orissa

2016-07-01

B.K.NAYAK

body2016
JUDGMENT B.K. NAYAK, J. - This application under Section 482, Cr.P.C. has been filed with a prayer to direct the learned S.D.J.M., Dhenkanal to issue summons to opposite party nos. 9 and 10 in G.R. Case No. 609 of 2009, in modification of the order of cognizance dated 14.12.2012 passed by the learned S.D.J.M. in that case. 2.The petitioner’s marriage with opposite party No. 2 was solemnized on 10.07.2005, but it ran into troubled water, the petitioner filed F.I.R. on 27.07.2009 giving rise to registration of Motonga P.S. Case No. 123 of 2009 under Sections 498-A/506/34 of the I.P.C. read with Section 4 of the D.P. Act against her husband and other in-laws, corresponding to G.R. Case No. 609 of 2009 of the Court of the learned S.D.J.M, Dhenkanal. On 10.08.2010, the Investigating Officer submitted final form reporting insufficient evidence in respect of the alleged offences. The learned S.D.J.M., Dhenkanal issued notice to the petitioner, who filed protest petition. Thereafter, the learned S.D.J.M. recorded the initial statement of the petitioner and conducted enquiry under Section 202, Cr.P.C., during course of which he recorded the statements of some witnesses. On completion of enquiry by order dated 14.12.2012, the learned S.D.J.M. took cognizance of the offences under Section 498-A/294/323/506/34 of the I.P.C. read with Section 4 of the D.P. Act and issued process (summons) to opposite party nos. 2 to 8. It is the grievance of the petitioner, that in spite of availability of sufficient materials making out a prima-facie case regarding involvement of opposite party nos. 9 and 10 in the alleged offences, the learned S.D.J.M. did not issue summons to them. The petitioner has therefore filed this application praying to secure the ends of justice by directing issuance of summons to opposite party nos. 9 and 10 in the aforesaid case. 3.Learned counsel for opposite party nos. 9 and 10 submitted that the application under Section 482, Cr.P.C. is not maintainable for getting the nature of relief sought for by the petitioner in the present petition. It is also his submission that the protest petition and the statement of the petitioner and the witnesses examined during enquiry do not made out a prima facie case regarding commission of the alleged offences by opposite party nos. 9 and 10 and, therefore, the learned S.D.J.M. has rightly decided not to proceed against those opposite parties. It is also his submission that the protest petition and the statement of the petitioner and the witnesses examined during enquiry do not made out a prima facie case regarding commission of the alleged offences by opposite party nos. 9 and 10 and, therefore, the learned S.D.J.M. has rightly decided not to proceed against those opposite parties. 4.Section 482, Cr.P.C. saves the inherent powers of the High Court and it reads as follows: “482. 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 maybe 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.” 5.The expression, ‘otherwise to secure the ends of justice’ appearing in Section 482, Cr.P.C. is of wide amplitude and it includes within its meaning the inherent power of the High Court to set aside any order, which is legally unsustainable and also to issue such direction which a lower Court has illegally omitted or failed to issue. While under the first category the positive action of a lower Court is susceptible to challenge, under the second category it is the omission and failure of the lower Court to pass just order or decision which is challengeable. 6.Learned counsel for opposite party nos. 9 and 10 in the instant case has not brought to my notice any authority to show that failure of a Magistrate to issue process against persons against whom prima facie materials have been brought on record with regard to their involvement in alleged offences, cannot be corrected any exercise of inherent power under Section 482, Cr.P.C. The contention of the learned counsel for opposite party nos. 9 and 10 about non-maintainability of this petition, therefore, fails. 7.With regard to the second contention, it is necessary to see whether the materials, the initial statement of the petitioner and the statements of the witnesses recorded during enquiry under Section 202, Cr.P.C. prima facie make out the involvement of opposite party Nos. 9 and 10 in the alleged offences. Opposite party nos. 9 is the sister-in-law (wife of the husband’s brother) of the petitioner and petitioner no. 9 is the maternal uncle of petitioner’s husband. 9 and 10 in the alleged offences. Opposite party nos. 9 is the sister-in-law (wife of the husband’s brother) of the petitioner and petitioner no. 9 is the maternal uncle of petitioner’s husband. It is alleged in the protest petition that as per the demand of the accused persons, the petitioner’s father had given some gold ornaments, T.V. , Steel Almirah, double bed and some other household articles and Rs. 40,000/-, out of demand of dowry of Rs. 80,000/- and that the accused persons were unhappy for non-fulfillment of their demand of dowry in full. It is alleged specifically that on the 4th day of her marriage, in the petitioner’s matrimonial house, the father of the petitioner begged apology for his inability to meet the demand of the accused persons in full and promised to fulfill the same in future whereupon the accused persons including opposite party no. 10 rebuked the petitioner’s father and other witnesses in filthy language. It is further alleged that opposite party no. 10 even instigated the other accused persons to ill-treat the petitioner and her family members in order to extract the dowry and when the father of the petitioner asked the accused persons to sign on the list of dowry articles already given at the time of marriage, the present opposite party no. 10 instigated the other accused persons not to sign the list and even he snatched away the article list from the hand of the petitioner’s father. It is specifically alleged that after the 4th day of the marriage all the in-laws including opposite party no. 9 started ill-treating the petitioner physically and mentally and always demanded her to bring further dowry from her father. Along with some of the accused persons, opposite party no. 9 also forced the petitioner to do all the household works like cleaning of utensils and cow shed, washing the wearing clothes of all the family members all alone by herself and did not provide her food and clothing. They had been abusing her in filthy language. It is also alleged that opposite party No. 9 specifically threatened to petitioner that she would be tortured lifelong if she did not bring dowry like her. It is also alleged that on the day following Sabitri Amabasya of 2006 the accused including opposite party no. They had been abusing her in filthy language. It is also alleged that opposite party No. 9 specifically threatened to petitioner that she would be tortured lifelong if she did not bring dowry like her. It is also alleged that on the day following Sabitri Amabasya of 2006 the accused including opposite party no. 9 forcibly took her to their well in the dreadful night and attempted to throw her into the well and when she begged mercy and assured to bring the balance amount of dowry, they let her off with threats. The petitioner has also stated the aforesaid facts in her initial statement recorded by the learned S.D.J.M. The statement of witnesses recorded during enquiry under Section 202, Cr.P.C. goes to specifically implicate opposite party no. 10 in harassing the petitioner and also instigating the other accused persons to harass her for non-fulfillment of the dowry demand in full. Thus, the materials available on record prima facie reveal involvement of opposite party nos. 9 and 10 in the alleged offences. At the stage of taking cognizance under Section 190, Cr.P.C. and issuance of process the Magistrate is required to see whether the materials on record prima facie make out a case against the accused persons. At that stage, he is not required to examine in detail whether the materials and statement of witnesses are sufficient for recording a conviction. 8.Since this Court finds that there are materials making out a prima facie case against opposite party nos. 9 and 10, this Court allows this CRLMC and direct the learned S.D.J.M, Dhenkanal to array opposite party nos. 9 and 10 as accused in the aforesaid case and issue process against them. The CRLMC is accordingly disposed of. CRLMC disposed of.