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2016 DIGILAW 941 (ORI)

Manoranjan Sahu v. State of Odisha

2016-10-07

B.K.NAYAK

body2016
JUDGMENT B.K.NAYAK, J. - In this application under Section 482, Cr.P.C., the petitioner challenges the initiation and continuance of the criminal proceeding against him in C.T. Case No.285 of 2014 pending on the file of the learned S.D.J.M., Deogarh, arising out of Reamal P.S. Case No.75 of 2014 for alleged commission of offences under Sections 498-A/417 of the Indian penal Code. 2.The prosecution allegations against the petitioner in the aforesaid case, as revealed from the F.I.R. and the statement of the victim-informant recorded under Section 161 of the Cr.P.C. are as follows : The victim girl during 2011 was a student of +2 in Batagaon College, Sambalpur and the accused-petitioner was staying in his aunt’s house at Batagaon. The petitioner used to pass comments to the informant on her way back from College. Gradually love relationship developed between them. The petitioner promised to marry the informant and on various occasions used to visit her house in village-Kukapani, P.S. Reamal, Dist. Deogarh. On 10.12.2013 he took the victim to the temple of Maa Budhi Tahkurani in Angul and married the victim by offering bangles and putting vermilion on her head and by exchanging garlands. From the temple they went to Angul Court for registration of their marriage where they got their marriage registered before a Notary. On the way back from Angul Court when the informant asked to accompany the petitioner to his house as his wife, the informant told that he will fix a suitable auspicious date and solemnise marriage ceremonially and take the informant to his house, whereupon the informant came back with her father and kept waiting for nearly six months whereafter she got the news that the petitioner was going to marry another girl on the next date. On hearing such news the informant lodged the F.I.R. on 08.05.2014, on the basis of which Reamal P.S. Case No.75 of 2014 was registered under Sections 498-A/417 of the I.P.C. On completion of investigation, the police submitted charge-sheet against the petitioner for commission of aforesaid offences, on the basis of which the learned S.D.J.M., Deogarh by his order dated 20.11.2014 in C.T. Case No.285 of 2014 took cognizance of the offences under Sections 498-A/417 of the I.P.C. and issued summons to the petitioner. 3.‘It is to be noted that earlier the petitioner had filed CRLMC No.444 of 2015 praying to quash the order of cognizance in C.T. Case No.285 of 2014, but during the course of hearing on 04.2.2015, he withdrew the CRLMC, which was accordingly dismissed as withdrawan. Thereafter, the petitioner again filed CRLMC No.2226 of 2015 before this Court challenging the very initiation of the criminal proceeding against him in the aforesaid Reamal P.S. Case No.75 of 2014 and the continuance of the investigation in such criminal proceeding, even though by then cognizance of offence had already taken and he had been summoned to appear before the learned S.D.J.M. However, CRLMC No.2226 of 2015 was dismissed on 19.06.2015 with the following observations: “Considering the submissions made, I am not inclined to entertain this application at this initial stage, when investigation is under progress and all facts are yet to come on record.” The aforesaid order suggests that at the time of argument of the CRLMC it was not represented before the Court that investigation had already been completed, charge-sheet was submitted and cognizance taken against the petitioner. It is thus apparent that the petitioner’s 2nd. Criminal Misc. Case, i.e. CRLMC No.2226 of 2015 was disposed of giving an impression to the Court that investigation was then still in progress, so that the petitioner would have a further opportunity to challenge the proceeding against him, if the situation so demanded, after completion of investigation. This was apparently aimed to mislead this Court. Now for the 3rd time the proceeding has been challenged in the present application under Section 482, Cr.P.C. 4.The petitioner mainly challenges the order of cognizance under Section 498-A/417 of the I.P.C. contending that the allegations made in the F.I.R. and statements of the informant as well as the witnesses do not make out a prima facie case under Section 498-A of the I.P.C., inasmuch as the allegations are that in the temple there was merely exchange of garland between the informant and the petitioner and offering of vermilion and bangles to the informant, which do not make a valid Hindu Marriage and since there was no valid marriage, the offence under Section 498-A cannot be said to have been committed. It is the further submission that it is the admitted case of the prosecution that the relationship between the petitioner and the informant was one of love and, therefore, the ceremony of exchange of garland cannot be said to be a case of deception which would amount to cheating. Therefore, offence under Section 417 of the I.P.C. cannot be said to have been prima facie committed by the petitioner. 5.Mr.A.K. Nayak, learned Additional Standing Counsel submitted that there is allegation that marriage of the petitioner with informant was registered in the Court at Angul though in fact the petitioner, as per the case diary, swore the affidavit before the Notary, Angul that he has married the informant in the temple and, therefore, he cannot fall back and say against his own admission and affidavit that no marriage was solemnised. Hence, the offence under Section 498-A of the I.P.C. can be prima facie said to have been committed by him. Alternatively, he submits that assuming that there was no valid marriage, in view of the allegation of the informant herself and after returning from Angul after exchange of garlands and leaving the informant at her parental house, the petitioner also visited the house of the informant on two occasions and made sexual intercourse with her leading her to believe that they were married and, therefore, offence under Section 493 of the I.P.C. has been clearly made out against him. He also submits that creating a belief in the mind of the informant that they were married by the ceremony of exchange of garlands and giving her bangles and vermilion and thereafter disowning the marriage and negotiating another marriage amounts to deception and cheating punishable under Section 417 of the I.P.C. 6.The prosecution allegations of the informant as seen above, stand fully corroborated by the statements of her father, Puruna Chandra Dhal and grandmother, Abala Godnaik and also by the statement of one Dhruba Charan Sahu and a friend of the petitioner. Mere exchange of garland and/or putting vermilion on the head of the girl and giving her bangles by themselves do not constitute a valid Hindu Marriage. The materials on record also reveal that the so called marriage was not registered before the Registrar of Marriages. The two separate affidavits sworn by the petitioner and the informant before the Notary, Angul show that they were married in the temple. The materials on record also reveal that the so called marriage was not registered before the Registrar of Marriages. The two separate affidavits sworn by the petitioner and the informant before the Notary, Angul show that they were married in the temple. The two affidavits have been seized by the Police during the course of investigation. Apparently, therefore, there was no valid marriage between the petitioner and informant and hence, no offence prima facie under Section 498-A of the I.P.C. can be said to have been committed by the petitioner. 7.However, the allegations of the prosecution and materials in respect thereof clearly make out a case of commission of offence by the petitioner under Section 493 of the I.P.C. Section 493 of the I.P.C. runs as under : “493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage – Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The fact that the petitioner exchanges garland with the informant and gave her bangle and vermilion before the deity in the temple created a belief in her mind that she was legally married to him. Thereafter, the petitioner visited the paternal house of the informant and co-habited with her, which was allowed by the informant under the belief that she was lawfully married to the petitioner. This clearly makes out the offence under Section 493 of the I.P.C. for which the petitioner is liable to be prosecuted. 8.Offence of cheating is defined in Section 415 of the I.P.C. Section 415 runs as under: “415. Cheating – Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation – A dishonest concealment of facts is a deception within the meaning of this Section.” 9.The prosecution allegations clearly make out a case of deception since the petitioner leading the informant to believe that she was legally married to him, committed intercourse with her and thereafter negotiated his marriage with another girl, which definitely cause damage and harm to the informant in her body, mind and reputation. Therefore, the petitioner is also liable for cheating under Section 417 of the I.P.C. 10.In the aforesaid analysis, the cognizance of offence under Section 498-A of the I.P.C. taken in C.T. Case No.285 of 2014 by the learned S.D.J.M., Deogarh is quashed. Instead the S.D.J.M. is directed to take cognizance of offence against the petitioner under Section 493 of the I.P.C. The prosecution of the petitioner shall continue for the offences under Section 493/417 of the I.P.C. The CRLMC is accordingly disposed of. CRLMC disposed of.