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2017 DIGILAW 1089 (ORI)

Srikanta Mallik v. State of Orissa

2017-09-20

B.MOHANTY

body2017
ORDER 20.09.2017. Heard Mr. U.R. Jena, learned Counsel for the petitioners, Mr. Senapati, learned Addl. Government Advocate, Mr. P.S. Nayak, learned Counsel for opposite party No.2 and Mr. Parsuram Das for opposite party No.3-informant. In this case, the petitioners have made a prayer to quash the proceeding pending before learned J.M.F.C., Soro in G.R. Case (C.T.) Case No.120 of 2009 including the order dated 16.1.2010 taking cognizance of the offences under Sections 363, 366 of the I.P.C. Learned Counsel for the petitioners submits that the opposite party No.3 filed a complaint petition on 4.2.2009 before the learned J.M.F.C., Soro with the allegation that in the night of 6/7.1.2009 at about 2 A.M. while the opposite party No.2 had gone outside for attending call of nature, she was kidnapped by the petitioners, who took her away in a motor cycle. The said complaint petition was registered as I.C.C. Case No.34 of 2009. Later on, on 5.2.2009, the learned J.M.F.C., Soro considering the facts of the complaint case, sent complaint petition under Section 156 (3) Cr.P.C. to O.I.C. Soro P.S. directing to treat the complaint petition as F.I.R., register the same and proceed with the investigation in accordance with law. Pursuant to such direction, Soro P.S. Case No.47 of 2009 was registered under Sections 304 (A)/366 (A)/376/506/34 of the I.P.C. On completion of investigation, according to learned Counsel for the petitioners, preliminary final form dated 1.1.2010 was filed against the petitioner no.1 under Sections 363/366 of the I.P.C. With regard to allegation of rape, the I.O. by while filing the preliminary final form dated 1.1.2010 indicated that the said allegation would be decided after rescue of the victim girl, Manjulata Mallik (opposite party No.2). On completion of investigation, the I.O. while filing final form on 21.8.2010 has reiterated that prima facie evidence is there against petitioner No.1 under Sections 363/366 I.P.C. and against petitioner No.2 under Sections 212/363/366 I.P.C. He further submits that on the very next day of the occurrence i.e. on 7.1.2009 the petitioner No.1 and opposite party No.2 got married at Bahanaga Siva Temple, Bahanaga as per the Hindu Rites and Customs. Further, according to him such marriage was solemnized as per the willingness of opposite party No.2 and thus, false case has been foisted against the petitioner. Further, according to him such marriage was solemnized as per the willingness of opposite party No.2 and thus, false case has been foisted against the petitioner. In such background, he prays that the entire proceeding in G.R. Case (C.T.) Case No.120 of 2009 pending in the file of learned J.M.F.C. Soro should be quashed including the order dated 16.1.2009 taking cognizance of the offence. Pursuant to notice, opposite party Nos. 2 and 3 have appeared and have filed their affidavits. The opposite party No.2 in her affidavit has stated that in the year 2009 she was 20 years of age and was in love with petitioner No.1 and accordingly, she fled away with petitioner No.1 and married him on 7.1.2009 at Bahanaga Siva Temple, Bahanaga. This love affair between her and petitioner No.1 was not known to opposite party No.3 and further out of their wed lock, they have been blessed with two children, i.e. one daughter, namely, Priyadarshini Mallick and one son, namely, Barun Kumar Mallick. Further, she has stated that she is leading a happy conjugal life with petitioner No.1. According to her, the petitioner No.2 is a distant relative of petitioner No.1 and had no role in this case. In her affidavit she has further stated that continuation of criminal proceeding against the petitioner No.1 would affect the psychology of their children. If the criminal case is allowed to continue, it would no way help the prosecution on the other hand it will unnecessarily consume valuable time of the Court. Opposite Party No.3 in her affidavit has stated that opposite party No.2 was in love with petitioner No.1 and fled away with petitioner No.1 and the marriage between them took place on 7.1.2009.The said love affair was not within her knowledge. So she had filed the case against the petitioners. Now her grand daughter (opposite party No.2) and petitioner No.1 are leading a happy conjugal life and blessed with two children. Petitioner No.2 is a relative of petitioner No.1 and subsequently she came to know that he had no role in this case. So she had filed the case against the petitioners. Now her grand daughter (opposite party No.2) and petitioner No.1 are leading a happy conjugal life and blessed with two children. Petitioner No.2 is a relative of petitioner No.1 and subsequently she came to know that he had no role in this case. In such background, relying on the decision of the Supreme Court in Fazle Gaffar Khan and others - v – State of West Bengal and another, reported in (2000) 10 SCC 10 and judgments of this Court in Siba Mallik v. State of Orissa, reported in (2012) 53 OCR 588 and in Ashwini Kumar Behera v. State of Orissa, reported in 2007 (Supp.-II) OLR 1041, the learned Counsel for the petitioners submit that the Criminal Proceeding land the order of cognizance be quashed. Perused the L.C.R. Perusal of L.C.R. shows that opposite party No.2 was a minor at the time of occurrence of the incident and as per final form dated 21.8.2010, the I.O. has indicated that the opposite party No.2 had not alleged rape against the accused. In the case of Fazle Gaffar Khan and others (supra) under the similar circumstances the Supreme Court has quashed the Criminal Proceeding even if the girl was a minor. Considering the submissions made and the affidavit filed by opposite party Nos. 2 and 3, this Court is of opinion that under the facts and circumstances of the case the chance of conviction of the petitioners is bleak and if the prosecution is allowed to continue, the same would amount to abuse of process of Court. Therefore, this Court considers this is a fit case to quash the entire proceeding for securing the ends of justice. Accordingly, proceeding in G.R. (C.T.) No. 120 of 2009 pending in the file of learned J.M.F.C., Soro including the order dated 16.1.2010 taking cognizance of offence are hereby quashed. The CRLMC is accordingly allowed and disposed of as such. CRLMC allowed.