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2018 DIGILAW 83 (ORI)

Subhankar Bal v. State of Odisha

2018-01-15

B.K.NAYAK

body2018
ORDER 15.01.2018 Heard learned counsel for the petitioners, learned Additional Standing Counsel and learned counsel for the opposite party No.2 (informant). Perused the records. 2. This application under Section 482 Cr.P.C. has been filed by the petitioners challenging the order dated 13.09.2016 passed by the learned S.D.J.M.(Sadar), Cuttack in G.R.Case No.1027 of 2015 taking cognizance of the offences under sections 498-A/323/506/406/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and directing for issuing summons to the petitioners. 3. Opposite party No.2 is the complainant and petitioner No.1 is her husband. Petitioner Nos.2,3 and 4 are respectively the father-in-law, mother-in-law and brother-in-law (husbands younger brother) of opposite party No.2. Petitioner No.5 is a complete outsider. Opposite party No.2 filed a complaint before the learned S.D.J.M.(Sadar), Cuttack against the petitioners which was registered as I.C.C.Case No.843 of 2015. By order of the learned S.D.J.M., the complaint was forwarded to the Mahila P.S., Cuttack, where it was registered as P.S.Case No.59 dated 19.06.2015 under Sections 498-A/324/506/34 of the Indian Penal Code and Section 4 of Dowry Prohibition Act and investigation was taken up. On completion of investigation the Police submitted charge sheet whereafter the learned S.D.J.M. has passed the impugned order of cognizance and issuance of process to the petitioners. 4. In the complaint of opposite party No.2, it is alleged as follows : Her marriage with petitioner No.1 was solemnized on 07.07.2014. At the time of marriage the complainants father had given cash of Rs.2,00,000/- to the complainants father-in-law and gold and silver ornaments, utensils, steel almirah, other furnitures and clothes. After the marriage, opposite party No.2 went to her matrimonial home at Balasore. On the second day of marriage, petitioner No.3 (mother-in-law) gave some juice to the complainant. After drinking the same the complainant felt uncomfortable and became bed ridden for three days. On enquiry by the parents of opposite party No.2, petitioner No.3 replied that she suffered from black magic and would be cured through a local wizard. Petitioner No.1 is working in Axix Bank at New Delhi and residing at Gurgaon, Haryana. Opposite party No.2 was working in a private company before her marriage. After marriage they did not allow her to do service. Petitioner No.1 is working in Axix Bank at New Delhi and residing at Gurgaon, Haryana. Opposite party No.2 was working in a private company before her marriage. After marriage they did not allow her to do service. During her stay in her matrimonial home at Balasore, the father-in-law and mother-in-law misbehaved with opposite party No.2 and commented on her father for non-fulfilling their desire to get Rs.15,00,000/- from the father of opposite party No.2. Therefore, they asked the complainant to tell her father to give additional sum of Rs.13,00,000/-. Two weeks after the marriage, on 22.07.2014 the petitioner No.1 took opposite party No.2 and his parents to his service place at Gurgaon. During her stay there, opposite party No.2 found that petitioner No.5 was staying as tenant at Gurgaon in the house of petitioner No.2 and that she had close intimacy with petitioner No.1 and his mother is being dominated by her. The mother in-law (petitioner No.3) along with the said lady forcibly took away the ornaments and kept it in their custody and demanded further cash from her father. When opposite party No.2 brought the said fact to the notice of petitioner No.1, the latter remained silent and supported his parents. It is alleged that the husband and in-laws along with petitioner No.5 tortured her mentally and physically for which her health condition deteriorated day by day. The accused persons gave her medicine without consulting a Doctor, but after taking medicine she felt sleepy and uncomfortable. She having refused to take further medicine, was assaulted by petitioner No.1. One evening petitioner Nos. 3 and 5 dragged the complainant to a room and locked the door from outside. She felt nervous and intimated her parents over her mobile phone. Being threatened by her parents over phone, the accused persons released her from the said room. It is further alleged that petitioner No.1 took the ATM card of opposite party No.2 and withdrew Rs.50,000/- form her Account. Opposite Party No.2 having fallen ill, petitioner Nos. 1 and 2 took her to Columbia Asia Hospital and after check up the Doctor told that the kidney of the complainant has been damaged and transplantation of kidney is necessary. Thereafter the accused persons called the father of the complainant, who arrived at Gurgaon and the complainant was driven out with her father on 20.06.2014. 1 and 2 took her to Columbia Asia Hospital and after check up the Doctor told that the kidney of the complainant has been damaged and transplantation of kidney is necessary. Thereafter the accused persons called the father of the complainant, who arrived at Gurgaon and the complainant was driven out with her father on 20.06.2014. The complainant was taken to Appolo Hospital on 28.08.2014 and on check up the Doctor advised for transplantation of kidney of the complainant. Finally on 06.02.2015 operation was conducted and kidney transplantation of the complainant was done. During her treatment at Appolo Hospital for kidney transplantation the accused persons did not turn up and the entire expenditure of Rs.10,00,000/- was borne by her father. After her recovery the complainant went to her matrimonial home with her father, but the accused persons did not allow them to enter into the house and abused them for which they returned. It is further stated that petitioner No.1 has filed C.P.No.215 of 2015 in the Court of Judge, Family Court, Cuttack under Section 12 of the Hindu Marriage Act for declaring his marriage with the complainant void. It is also alleged that on 13.05.2015 at about 4 P.M. without giving any information the accused persons came to the complainant and forcibly entered into her room and tried to misbehave her and petitioner No.1 gave her a slap and fist blow and petitioner Nos. 2 and 3 instigated him to do so. Lastly, a very vague and frivolous allegation is that accused-petitioner No.4 interfered in the dispute and instigated petitioner No.1 not to accept the complainant. 5. Learned counsel for the petitioners contended that the allegations made in the complaint petition relate to occurrence having taken place at Balasore and Gurgaon, and therefore, the S.D.J.M., Cuttack has no jurisdiction to try the case and, therefore, the cognizance order is bad. It is further stated in the petition and also contended that the complainant prior to her marriage with petitioner No.1 was suffering from chronic kidney disease which fact they had suppressed from the accused persons and therefore, they played fraud in obtaining consent of petitioner No.1 and his parents for the marriage. Therefore, the petitioner No.1 has filed C.P. in the Family Court for declaring the marriage void and that only after getting notice in that proceeding the complainant has lodged the complaint on totally false and concocted allegations. Therefore, the petitioner No.1 has filed C.P. in the Family Court for declaring the marriage void and that only after getting notice in that proceeding the complainant has lodged the complaint on totally false and concocted allegations. It is also submitted that the allegation, if any, are against both petitioner Nos. 1 to 3 and there is no allegation against petitioner No.4, the unmarried brother-in-law of the complainant, except a bald and vague statement that he interfered in the dispute. It is also submitted that petitioner No.5 is a complete stranger to the family of petitioner No.1 and merely because she was staying as a tenant in the house of petitioner No.2 at Gurgaon some vague allegations have been made against her to the effect that she helped and assisted petitioner no.3, the mother-in-law in taking away the complainants ornaments and kept her in confinement for two days, merely because complainant entertained suspicion that petitioner No.5 was having illicit relationship with petitioner No.1. It is also submitted that learned S.D.J.M. has not applied his mind to the materials on record and mechanically passed order of cognizance. 6. Learned State Counsel and learned counsel for opposite party No.2, on the other hand, contended that merely because before filing of the complaint, petitioner No.1 has filed the Civil Proceeding before the Family Court, it can be presumed that the allegations made in the complaint are false and concocted. It is submitted that since the allegations made in the complaint make out prima facie commission of offences, cognizance for the same has been rightly taken, which warrants no interference. 7. The petitioners have filed xerox copies of some medical papers for the period prior to the marriage between the complainant and petitioner No.1, which indicate that the complainant was suffering from some kidney disease before the marriage. However, the authenticity of the said documents is subject to proof. It is trite that if the allegations contained in the complaint and in the statements of witnesses and material collected during investigation make out a prima facie case of commission of offences, the Magistrate is bound to take cognizance without entering into the truth or otherwise of those allegations. However, the authenticity of the said documents is subject to proof. It is trite that if the allegations contained in the complaint and in the statements of witnesses and material collected during investigation make out a prima facie case of commission of offences, the Magistrate is bound to take cognizance without entering into the truth or otherwise of those allegations. It is trite that in matrimonial dispute, particularly in cases under Section 498-A I.P.C. allegations should be specific as has been held by the Honble Supreme Court in the case of Geeta Mehrotra and another-vrs.-State of U.P. and another reported in AIR 2013 S.C. (CRI-21). It has been held as follows: 19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. 24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more sos against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physically and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complaint, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding. 25. In the case at hand, when the brother and unmarried sister of the principal accused Shymji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A/323/504/506 including Sections 3 and 4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellant so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court. 8. On a careful perusal of the complaint petition, the statements of the complainant and her parents and other materials on record, it appears that there are specific allegations of the offences for which the cognizance has been taken against the petitioner Nos.1 to 3. The allegations against petitioner No.4 is quite bald only to the effect that he interfered with the family dispute, which is without any specificity. The petitioner No.4 is an unmarried man working in State Bank of India at Bhubaneswar and staying there. The parents of the complainant have also not specifically alleged anything against him. Therefore, taking of cognizance and issuance of process against him is legally unjustified. The petitioner No.4 is an unmarried man working in State Bank of India at Bhubaneswar and staying there. The parents of the complainant have also not specifically alleged anything against him. Therefore, taking of cognizance and issuance of process against him is legally unjustified. Learned counsel for the complainant brought to the notice of this Court a copy of the seizure list stating that from his quarters in SBI colony one double bed, mattress, some bangles and ornaments which are looking like gold were seized. There is nothing on record or any allegation that the articles seized from the possession of petitioner No.4 were the dowry articles or that they belong to the complainant. There is also no allegation that any of the articles given to the complainant by her parents at the time of marriage were taken away by petitioner No.4. Therefore, without there being any allegation, mere seizure of some articles from the quarters of petitioner No.4 cannot provide a ground for taking cognizance and issuance of process against him. 9. Similarly, there is no specific allegation of overt act against petitioner No.5, who is neither a family members nor relative of the family of the husband of the complainant. She is a married lady, who was staying on rent in the house of petitioner No.2 at Gurgaon. Because of complainants suspicion that petitioner No.1 was having intimacy with petitioner No.5, she has vented her grudge on her and implicated her stating that with the mother-in-law she also took away the gold ornaments. Such a story is highly improbable. Therefore, issuance of process against the petitioner No.5 is also unjustified. 10. There being some allegations that after the complainant was not entertained in the matrimonial home at Gurgaon after her treatment and operation she stayed at Cuttack in CDA area and petitioner Nos. 1 to 3 came and misbehaved her there. Therefore, it cannot be said that no part of the alleged occurrence took place within the jurisdiction of S.D.J.M.(Sadar), Cuttack. 11. In the light of the aforesaid discussions, this Court is of the view that the impugned order of cognizance against the petitioner Nos. 4 and 5 and issuance of process to them is not legally justified and accordingly it is quashed qua them. The CRLMC is accordingly disposed of. Issue urgent certified copy. CRLMC disposed of.