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2018 DIGILAW 768 (ORI)

Santosh Kumar Raxa v. State Of Orissa

2018-08-28

S.K.SAHOO

body2018
JUDGMENT S.K. Sahoo, J. - Heard learned counsel for the petitioner in both the cases and learned counsel for the State. 2. Both the CRLMC applications have been filed under section 482 Cr.P.C., 1973 for quashing the criminal proceedings in G.R. Case No. 375 of 2004 pending in the court of learned S.D.J.M., Sadar, Sundargarh, which arises out of Bhasma P.S. Case No. 50 of 2004. 3. With the consent of the parties, the CRLMC applications are heard together and disposed of by this common order. 4. The petitioner Santosh Kumar Raxa in CRLMC No. 2455 of 2009 is the husband and the petitioners in CRLMC No. 4014 of 2012, namely, Apurba Raxa, Basudeb Raxa, Gouri Raxa, Puspa Raxa, Damayanti Raxa and Suprava Raxa are the in-laws of the opposite party no. 2 - Smt. Lata Raxa. 5. It appears that on the basis of the F.I.R. lodged by opposite party no.2, Smt. Lata Raxa before the Inspector in-charge of Bhasma Police Station on 26.06.2004, a case under sections 498-A, 506/34 of the Indian Penal Code and section 4 of the D.P. Act was instituted and after submission of charge-sheet, the case is now pending for trial. 6. It appears that during pendency of the criminal proceeding, there has been amicable settlement between the petitioner-Santosh Kumar Raxa and opposite party no.2 - Smt. Lata Raxa to go for mutual divorce and accordingly, a petition under section 13-B of the Hindu Marriage Act was filed in the Court of learned Judge, Family Court, Rourkela vide Civil Proceeding No. 201 of 2008 and one of the terms as reflected in paragraph 10 of the petition is that the G.R.Case No. 375 of 2004 pending before the learned SDJM, Sundargarh is to be compromised. It is contended by the learned counsel for the petitioners in both the cases that in the meantime the mutual divorce proceeding has been disposed of by the learned Judge, Family Court, Rourkela as per the judgment and order dated 09.04.2009 and the mutual divorce has been allowed and the petitioner in CRLMC No. 2455 of 2009, who is the husband of opposite party no.2 has paid Rs. 70,000/- (rupees seventy thousand only) as permanent alimony to the opposite party no.2. 70,000/- (rupees seventy thousand only) as permanent alimony to the opposite party no.2. Since the case arises out of a matrimonial dispute and the matter has been amicably settled between the parties and final order in the mutual divorce proceeding has been passed, learned counsel for the petitioner relying upon the decision of the Hon'ble Supreme Court in the case of B.S. Joshi v. State of Haryana reported in (2003) 25 Orissa Criminal Reports (SC) 99 , contended that continuance of the criminal proceeding will be abuse of the process of law. In the aforesaid case, it has been held as follows: "7. The High Court has relied upon Madhu Limaye's case for coming to the conclusion that since the offences under Sections 498A and 406 IPC are non-compoundable, it would be impermissible in law to quash the FIR on the ground that there has been a settlement between the parties. The decision in Madhu Limaye's case has been misreadand misapplied by the High Court. The question considered in that case was when there was a bar on the power of revision in relation to any interlocutory order passed in an appeal, enquiry, trial or other proceedings, what would be its effect on exercise of power under Section 482 of the Code. Sub-section (2) of section 397 of Cr.P.C , 1973providing that the power of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings was noticed and it was held that on a plain reading of Section 482, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". The Court said that if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers but adopting a harmonious approach held that the bar provided in subsection (2) of Section 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. It was further held that, then, in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redressal of the grievance of the aggrieved party. In Madhu Limaye's case, it was, interalia, said that if for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2)can limit or affect the exercise of the inherent power by the High Court. By way of illustration, an example was given where without jurisdiction the Court takes cognizance or issues process and assumes it to be an interlocutory order, would it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceedings as early as possible, since being an interlocutory order, it was not revisable and resultantly the accused had to be harassed up to the end, though the order taking cognizance or issuing process was without jurisdiction. It was held that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. 8. It is thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extra ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power." 7. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power." 7. In view of the ratio laid down by the Hon'ble Supreme Court in B.S.Joshi (supra) and taking into account the passing of mutual divorce decree by the learned Judge, Family Court, Rourkela and going through the terms and conditions stipulated in the mutual divorce petition that the criminal proceeding is to be compromised, I am of the view that no fruitful purpose would be served in allowing the criminal proceeding to continue, which would amount to miscarriage of justice and therefore, invoking the inherent power under section 482 Cr.P.C., 1973 the criminal proceeding in G.R.Case No. 375 of 2004 pending in the Court of learned S.D.J.M., Sadar, Sundargarh stands quashed. Both the CRLMC applications are allowed. Issue urgent certified copy as per Rules.