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2017 DIGILAW 1223 (ORI)

Kulamani Behera v. State of Orissa

2017-10-30

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. This application under section 482 of the Criminal Procedure Code has been filed by the petitioners challenging the impugned order dated 12.01.2005 passed by the learned S.D.J.M., Sadar, Cuttack in G.R. Case No.719 of 2003 in taking cognizance of the offences under sections 447, 341, 323, 294, 506 read with section 34 of the Indian Penal Code and section 3 of the S.C. and S.T. (P.A.) Act and issuance of process against them. The said case arises out of Lalbag P.S. Case No.97 of 2003. The petitioner no.1 died during pendency of this application and therefore, the application so far as the petitioner no.1 is concerned has become infructuous. 2. It appears that the informant Mamata Sethi of Seikh Bazar lodged the first information report before the Inspector in charge of Lalbag police station on 22.05.2003 against three accused persons including the petitioner no.2 for commission of different offences. Accordingly, Lalbag P.S. Case No.97 of 2003 was registered under sections 447/341/323/294/506/426/ 354/34 of the Indian Penal Code and section 3 of the SC and ST (PA) Act. 3. It is stated in the first information report that on 22.05.2003 at about 8.00 a.m. the accused persons forcibly entered into the land of the informant and started digging earth and when the informant restrained them, the accused persons abused the informant in filthy language and also in the name of her caste. It is further stated that the accused persons outraged the modesty of the informant and co-accused Kulamani Behera brought a match stick and attempted to set fire to the informant but the informant shouted and her parents-in-laws came outside and took her inside the house. It is further stated in the first information report that the accused persons destroyed some fruit bearing trees of the informant and abused the family members of the informant in filthy language. It is further stated that the informant is a widow and she belonged to scheduled caste and when she complained before the gentlemen of the locality, they advised her to approach the police and accordingly, the F.I.R. was lodged challenging the impugned order of taking cognizance. 4. Mr. Dayananda Mohapatra, learned counsel for the petitioner no.2 contended that from the side of the petitioners, a proceeding under section 144 of Cr.P.C. was instituted in the Court of learned Executive Magistrate, Cuttack vide Criminal Misc. 4. Mr. Dayananda Mohapatra, learned counsel for the petitioner no.2 contended that from the side of the petitioners, a proceeding under section 144 of Cr.P.C. was instituted in the Court of learned Executive Magistrate, Cuttack vide Criminal Misc. Case No.417 of 2003 against the father-in-law of the informant and the learned Executive Magistrate, Cuttack vide order dated 07.05.2003 passed an order under section 144(2) of Cr.P.C. restraining the second party from making any interference in the construction/repairing work of the first party until further orders. It is further contended that on 24.05.2003, the preliminary order which was passed on 07.05.2003 was made absolute and the police was directed to see that there is no apprehension of breach of peace in the area and further to see that the second party did not obstruct the peaceful construction work of the first party. It is further contended by the learned counsel for the petitioner no.2 that in view of the preliminary order dated 07.05.2003, on the date of occurrence while the petitioners were proceeding with the construction work, the informant protested and thereafter she has foisted the case. It is further contended that the dispute between the parties is basically civil in nature and much colour has been given to bring it within the purview of a criminal case and the F.I.R. has been presented in an exaggerated manner. It is further contended that since the proceeding is instituted with malafide intention with an ulterior motive, the same should be quashed. 5. After lodging of the first information report, the case was investigated by different police officers in the rank of Deputy Superintendent of police and ultimately finding prima facie case under sections 447/341/323/294/506/34 of the Indian Penal Code and section 3 of the S.C. and S.T. (P.A.) Act, chargesheet was submitted. 6. On going through the first information report and other materials on record, it appears that the ingredients of the offences are prima facie made out. Whether due to previous civil dispute between the parties, the case has been foisted or due to such dispute, the occurrence has taken place can be adjudicated by the learned trial Court at the appropriate stage. On the available materials on records, it is difficult to arrive at a conclusion that proceeding is instituted with malafide intention with an ulterior motive. 7. On the available materials on records, it is difficult to arrive at a conclusion that proceeding is instituted with malafide intention with an ulterior motive. 7. The inherent jurisdiction under section 482 of Cr.P.C. through wide has to be exercised sparingly, carefully and with caution and it should not be exercised to stifle a legitimate prosecution. The High Court cannot assume the role of a trial court and embark upon an inquiry so as to reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence. If on consideration of the allegations made in F.I.R. and other materials collected during investigation, it appears that the ingredients of the offence or offences are disclosed and there is no material to show that the case is based on malafide, frivolous or vexatious, the proceeding cannot be quashed. 8. Since the petitioner can raise all the points at the appropriate stage before the learned trial Court and at this stage, it is not expected to have a detailed discussion on the merits of the case but to see whether a prima facie case is made out or not, I am of the view that no illegality has been committed by the learned trial Court in passing the impugned order. If at the stage of framing of charge, any discharge petition is filed, the learned trial Court is expected to consider the same in accordance with law without being influenced by any observation made in this order.