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2017 DIGILAW 32 (ORI)

Mobina Bibi v. State of Orissa

2017-01-04

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioners have filed this application under Section 482 Cr.P.C. challenging the impugned order dated 17.06.2011 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No. 212 of 2009 in taking cognizance of the offences punishable under sections 498-A/506/34 of the Indian Penal Code and issuance of process against them. 2. The opp. party no.2 Kahkashan Khan lodged a first information report on 16.04.2004 before the Inspector in charge of Chandrasekharpur Police Station, on the basis of which Chandrasekharpur P.S. Case No. 90 of 2004 was registered under sections 498-A/506/34 of the Indian Penal Code corresponding to G.R. Case No. 1143 of 2004 pending in the Court of learned S.D.J.M., Bhubaneswar. It further appears that on completion of investigation, charge sheet was submitted on 16.10.2004 under sections 498-A/406 of the Indian Penal Code against accused Gyasuddin Khan who is the husband of the opp. party no.2. Though the opp.party no.2 had alleged overtacts against the petitioners but since charge sheet was not filed, she filed a complaint petition bearing I.C.C. Case No. 212 of 2009 in the Court of learned S.D.J.M., Bhubaneswar. The complainant-opp.party no.2 was examined under section 200 Cr.P.C. and during course of inquiry contemplated under section 202 Cr.P.C., two witnesses were examined. On perusal of the complaint petition, initial statement of the complainant recorded under section 200 Cr.P.C. as well as the statements of the witnesses recorded under section 202 Cr.P.C. and the documents available on record, the learned S.D.J.M., Bhubaneswar was of the view that prima facie evidence for commission of offences under sections 498-A/506/34 is made out against the petitioners and accordingly took cognizance of the offences and issued process against the petitioners which is the subject matter of challenge in this application under section 482 Cr.P.C. 3. Learned counsel for the petitioners Mr. Ashutosh Mahanta challenging the impugned order dated 17.06.2011 contended that there has been divorce between the opp. party no.2 and her husband Gyasuddin Khan in accordance with Muslim Law and after 2003, the parties are never staying together and therefore, the complaint petition which was filed in the year 2009 is barred by limitation. It is contended that in view of the punishment prescribed for the offences under which cognizance has been taken and the provision under section 468 Cr.P.C., the learned Court was not justified in taking cognizance after the lapse of period of limitation. It is contended that in view of the punishment prescribed for the offences under which cognizance has been taken and the provision under section 468 Cr.P.C., the learned Court was not justified in taking cognizance after the lapse of period of limitation. 4. Learned counsel for the opp. party no.2 Mr. G.N. Mishra on the other hand contended that offence under section 498-A of the Indian Penal Code is a continuing offence and the submission of charge sheet against the husband of the opp. party no.2 only was not within the knowledge of the opposite party no.2 for which delay occasioned in filing the complaint petition. Learned counsel for the opposite party no.2 further contended on the basis of the initial statement as well as statements collected during inquiry, prima facie case under sections 498-A/506/34 of the Indian Penal Code is clearly made out and therefore, at this stage it would not be proper to exercise the inherent power to interfere with the impugned order. He further contended that the petitioners can raise all such contentions at the time of framing of the charge. 5. Learned counsel for the State also supported the contentions raised by the learned counsel for the opp. party no.2. 6. Considering the submissions made by the respective parties and on perusal of the materials available on record, it appears that the marriage between the opp. party no.2 and Gyasuddin Khan was solemnized on 11.04.1993 and the opposite party no.2 has stated vividly as to how her husband and the petitioners subjected her to physical and mental torture at different points of time and one of such incident is stated to have taken place on 27.10.2003 as per the initial statement of the opp. party no.2 and thereafter also she was subjected to torture. The F.I.R. was lodged on 16.04.2004 against the petitioners as well as the husband of the opp. party no.2 but after completion of investigation, charge sheet was submitted on 16.10.2004 only against the husband Gyasuddin Khan under section 498-A/406 of the Indian Penal Code. 7. The petitioners who were initially arrayed as accused in the F.I.R. were not charge sheeted for which the complaint petition was filed against the petitioners in the year 2009. party no.2 but after completion of investigation, charge sheet was submitted on 16.10.2004 only against the husband Gyasuddin Khan under section 498-A/406 of the Indian Penal Code. 7. The petitioners who were initially arrayed as accused in the F.I.R. were not charge sheeted for which the complaint petition was filed against the petitioners in the year 2009. Even though there is delay of about five years in filing the complaint petition after the submission of charge sheet against the husband only but there is no material available on record to show that the complainant-opp. party no.2 was aware about the submission of charge sheet against the husband only in the year 2004 and in spite of that she delayed in filing the complaint petition. The complaint petition rather indicates that the investigating agency with malafide intention did not file chargesheet against the petitioners. Moreover, the accusations against the petitioners and the husband of the opposite party no.2 prima facie appear to be threat to cause death or grievous hurt to the opposite party no.2 which is punishable under section 506 Part-II of the Indian Penal Code. The said offence carries punishment of imprisonment which may extend to seven years, or with fine, or with both and therefore, bar to take cognizance as provided under section 468 of Cr.P.C. would not be applicable. 8. On perusal of the complaint petition, initial statement of the complainant-opp. Party no.2 as well as the statements of the witnesses recorded under section 202 of Cr.P.C., I find prima facie case is made out under sections 498-A/506/34 of the Indian Penal Code against the petitioners. Therefore, I am not inclined to invoke the inherent power under section 482 of Cr.P.C. to interfere with the impugned order. 9. Accordingly, the Criminal Misc. Case stands dismissed.