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2019 DIGILAW 147 (ORI)

Damodar Mishra v. State of Orissa

2019-02-20

A.K.MISHRA

body2019
JUDGMENT : A.K. Mishra, J. 1. Heard learned counsel for the petitioners and the learned Additional Standing Counsel. 2. None appears on behalf of opposite party no. 2. 3. Prayer has been made in this case to quash the order dated 26.08.2003 in taking cognizance under sections 498(A)/294/506/34 of the Indian Penal Code r/w section 4 of Dowry Prohibition Act under Annexure-9 in G.R. Case No. 1470 of 2002 corresponding to Cuttack Mahila P.S. Case No. 33 of 2002, pending in the Court of the learned S.D.J.M. (S) Cuttack. 4. Facts relevant for the purpose of this proceeding may be recapitulated thus opposite party no. 2, Smt. Subhranshubala Mishra married petitioner No. 3 on 28.02.2001. Petitioner nos.1 and 2 are the parents of petitioner no. 3. As it was a love marriage, there was neither any demand of dowry nor any payment thereof. In the matrimonial home, the pre-marital sexual relationship of opposite party no. 2 was alleged and opposite party no. 2 returned to parental house. She was blessed with a girl child on 22.11.2001. Both parties were then engaged in litigations. The husband filed I.C.C Case No. 211 of 2002 in the Court of S.D.J.M. Cuttack on 02.09.2002. The wife, opposite party No. 2 lodged F.I.R. on 28.10.2002 alleging offence under section 498-A/506/294/34 of the Indian Penal Code r/w section 4 of Dowry Prohibition Act. After completion of investigation charge-sheet was filed and impugned order taking cognizance was passed on 26.08.2003. In the meantime, the Judge, Family Court, Cuttack, in Civil Proceeding No. 315 of 2002 and Criminal Proceeding No. 213 of 2004 passed the judgment on 24.02.2006 of which ordering portion runs thus:- "The Civil Proceeding No. 315 of 2002 filed by the husband-petitioner is decreed on contest against the wife-respondent. The marriage solemnized between the parties on 28.01.2001 is hereby dissolved by a decree of divorce subject to payment of Rs. 1,50,000/- (Rupees one lakh fifty thousand) to the wife towards maintenance of the minor daughter, Sindhunandini and her permanent alimony. Out of the aforesaid amount Rs. 1,00,000/- (Rupees one lakh) be kept in the name of the minor daughter in any nationalized bank through her month-guardian till she attains majority and the interest thereof only be spent by her mother towards her maintenance and welfare. The balance amount of Rs. 50,000/- (Fifty thousand) be given to the wife-respondent towards her permanent alimony. 1,00,000/- (Rupees one lakh) be kept in the name of the minor daughter in any nationalized bank through her month-guardian till she attains majority and the interest thereof only be spent by her mother towards her maintenance and welfare. The balance amount of Rs. 50,000/- (Fifty thousand) be given to the wife-respondent towards her permanent alimony. The petitioner-husband is directed to pay/deposit the aforesaid amount within two months from the date of this order. In view of payment of lump-sum maintenance to the minor daughter and permanent alimony to the wife, no maintenance was awarded in Crl. Pet. No. 213 of 2004, which is dropped accordingly. In the circumstance, I pass no order as to cost." (a) Appeals preferred against this judgment was dismissed by the Division Bench of this Court vide judgment dated 05.08.2008 in MATA Nos. 6 and 30 of 2006. This proceeding for quashing of cognizance order dated 26.08.2003 in G.R. Case No. 1470 of 2002 was filed on 10.11.2003. (b) A report received from the Trial Court reveals that the accused persons were availing bail but after taking cognizance the trial could not be progressed due to stay order and the case has been posted to 06.04.2019 awaiting intimation from the Court. 5. In the backdrop of above facts, learned counsel for the petitioners submits that parties have already snapped their marital status by decree of divorce, as such further continuance of this proceeding will be an abuse of the process of the Court. He further submits that there is no material regarding demand of dowry and the allegation of cruelty. In support of his contention learned counsel for the petitioners has relied upon the decision reported in P. Jaychandra vs. Anil Kaur, (2005) 1 DMC 111 (SC), Pradeep Kumar Biswal and Others vs. State of Odisha, 2013 (2) OLR 246 , Hamidan Khatoon and Others vs. State of Jharkhand and Another, (2004) 2 DMC 751 , State vs. Dhruv Kumar Singh and Another, 2002 Cri. L.J. 1315, Smt. Nirmala vs. State of Haryana and Others, (2003) 1 DMC 34 , Seema and Another vs. State of U.P. and Another, (2007) 2 DMC 372 and Manjula Sinha vs. State of U.P. and Others, (2007) 2 DMC 395 (SC). 6. L.J. 1315, Smt. Nirmala vs. State of Haryana and Others, (2003) 1 DMC 34 , Seema and Another vs. State of U.P. and Another, (2007) 2 DMC 372 and Manjula Sinha vs. State of U.P. and Others, (2007) 2 DMC 395 (SC). 6. Having heard learned counsel for the petitioners and the learned Additional Standing Counsel and having carefully gone through the materials available on record it is found that the parties were at logger heads during the relevant period. The F.I.R. in question filed on 28.10.2002 vide Annexure-6 per se discloses the ingredients of the offences and on police report, the learned Lower Court has taken cognizance. The divorce proceeding was culminated and terminated while this criminal proceeding was pending. It is not a case where parties have settled there dispute. All the cited decisions are distinguishable on the facts and circumstances of this case. The contention urged before this court can be raised at the time of framing of charge in the Trial Court. 7. The Hon'ble Supreme Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others vs. State of Gujarat and Another, (2017) 9 SCC 641 , has held as follows:- "16. The broad principles which emerge from the precedents on the subject, may be summarized in the following propositions: 16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. 16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable." 8. In the judgment dated 12.02.2019, in the case of Sau. While compounding an offence, the power of the court is governed by the provisions of section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable." 8. In the judgment dated 12.02.2019, in the case of Sau. Kamal Shivaji Pokarnekar vs. State of Maharashtra and Others, Criminal Appeal No. 255 of 2019, the Hon'ble Apex Court has reiterated that:- "At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused." 9. In the case at hand, even if the marriage tie has been snapped by way of decree of divorce, no settlement between the parties has been arrived at to rest all disputes including the present one at peace. The allegations attributed against the petitioners were of earlier to lodging of F.I.R. under Annexure-6. 10. For the reasons stated above, I am not inclined to invoke the inherent jurisdiction under section 482 Cr.P.C. to quash the cognizance order dated 26.08.2003 under Annexure-9 passed in G.R. Case No. 1470 of 2002 corresponding to Cuttack Mahila P.S. Case No. 33 of 2002, pending in the Court of the learned S.D.J.M. (S) Cuttack. 11. Accordingly the Crl. MC stands dismissed. 12. This order immediately be communicated to the lower court.