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2019 DIGILAW 17 (ORI)

Nityananda Mishra v. Pranati Mishra

2019-01-10

A.K.MISHRA

body2019
JUDGMENT Dr.A.K.MISHRA, J. - This petition under Section 482 Cr.P.C. has been filed with following prayer: “It is, therefore prayed that this Hon’ble Court may graciously be pleased to admit this case, issue notices to the opposite parties, call for the L.C.R., after hearing the counsel for the parties be pleased to setaside the order dated 29.05.2008 under Annexure-2 as well as to quash the entire proceeding i.e. 1. C.C. No. 115 of 2008 as initiated by the opposite party, before the S.D.J.M., Anandpur being illegal and abusing process of law.” 2. The impugned order dated 29.05.2008 in 1 C.C. No.115 of 2008 is quoted below: “Respondents are absent. One respondent Nityananda Mishra is present. Advocate M.C.Pahi files a power on behalf of the respondent Nityananda Mishra. Vokalatnama is accepted. He files a petition praying for time on the ground stated therein. Heard. The O.P. appeared to-day is directed to pay a consideration of Rs.10,000/- to the petitioner by the date filed i.e. 30.6.2008 and it will be adjusted at the time of final order as the lady is in desert. Call on the date fixed for show cause and appear of other accused.” 3. Opposite party No.1 (to be referred hereinafter as ‘aggrieved’) is the wife of opposite party no.2. The present petitioner is her husband’s elder brother while opposite parties 3 and 4 are the nephews of the aggrieved. The aggrieved instituted 1 C.C. No. 115 of 2008 under the Protection of Women from Domestic Violence Act, 2005 (to be referred hereinafter as ‘the D.V.Act’) against her husband, husband’s elder brother and nephews. 4. Copy of the report of the Protection Officer, Keonjhar dated 13.03.2008 vide Annexure-1 reveals that not only sexual violence but also monetary violence was committed against the aggrieved and her 5 years old daughter. The perpetrators of such harassment were husband, husband’s elder brother and nephews. 5. It is noteworthy to mention that opposite party Nos. 2, 3 and 4, husband and nephews, are impleaded in this petition under Section 482 Cr.P.C. as Proforma Opposite Parties. The father name of opposite party Nos. 3 and 4 is not mentioned. For want of taking steps to issue notice for admission, the case was dismissed against opposite party No.2 vide order dated 15.2.2016. 6. 2, 3 and 4, husband and nephews, are impleaded in this petition under Section 482 Cr.P.C. as Proforma Opposite Parties. The father name of opposite party Nos. 3 and 4 is not mentioned. For want of taking steps to issue notice for admission, the case was dismissed against opposite party No.2 vide order dated 15.2.2016. 6. The impugned order was passed on the date of appearance of the respondents when the present petitioner only appeared and interim monetary relief was granted fixing date for show-cause. 7. Learned counsel for the petitioner submitted that the husband-respondent No.2 is responsible to maintain the aggrieved wife but when no such order was passed against the husband, the impugned order asking the husband’s elder brother to pay Rs. 10,000/- is illegal. It is further submitted that the total proceeding being based upon false facts is required to be quashed for the ends of justice. 8. Learned counsel for aggrieved opposite party No.1 repelled the above contention stating that the impugned order directing payment of Rs.10,000/- to the husband’s elder brother, who was the member of the joint family, cannot be said illegal under Section 23 of the D.V. Act. It is also submitted that in absence of any material that the allegation of domestic violence was false, the quashing of proceeding will advance the injustice. 9. There is no material contrary to the report of Protection Officer in which the commission of domestic violence against the aggrieved has been mentioned. The present petitioner has impleaded the husband of the aggrieved and nephews as Proforma Opposite parties. The petitioner has prayed to quash the entire proceeding wherein the husband and nephews were parties as abuser. They have not come forward to put forth their say on the allegation of the aggrieved. 9-a. In this backdrop the legal position may be mirrored. The complaint in which order was passed comes under Section 12 of the D.V. Act and interim order was within the ambit of Section 23 of the D.V. Act. Section 29 of the D.V. Act provides appeal to the Court of Session against the order made by the Magistrate. The present opposite party No.1 as wife of opposite party No.2 is an aggrieved person under Section 2(a) of the D.V. Act. Section 29 of the D.V. Act provides appeal to the Court of Session against the order made by the Magistrate. The present opposite party No.1 as wife of opposite party No.2 is an aggrieved person under Section 2(a) of the D.V. Act. Besides husband, his elder brother and nephews can be respondents under Section 2 (q) of the D.V.Act for being family members living together as a joint family. 9-b. No appeal under Section 29 of the D.V. Act has been preferred against the impugned order. For quashing of total proceeding the Proforma respondents have not come forward. The present petitioner appears to have acted on their behalf stealthily. The proceedings under the D.V. Act are of summary nature. 9-c. In the decision reported in (2013) 7 SCC 789 : Mohit @ Sanu and another v. State of U.P., the Hon’ble Apex Court has held in para-23that “ it is well settled that inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.” 9-d. The quashing of criminal proceeding or complaint is now guided on the principle enumerated in the decision reported in AIR 1992 SC 604 : State of Haryana v. Ch. Bhajan Lal and others: their Lordships have considered the scope and ambit of Sec. 482 Cr.P.C. as follows:- “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. 1. Whether the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 109. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 9-e. Relying upon the above decisions, the Hon’ble Apex Court in Rupon Deol Bajaj (MRS) and another v. Kanwar Pal Singh Gill and another: (1995) 6 SCC 194 has held that “it is settled principle of law that at the stage of quashing of F.I.R. or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegation made therein.” 9-f. In the case of Dr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra & Ors. (Criminal Appeal No. 1443 of 2018- Arising out of SLP (Criminal) No. 6532 of 2018), Judgment dated 22.11.2018. The Hon’ble Apex Court has held in para-8 that:- “8. It is well settled that exercise of powers under Section 482 of the Cr.P.C. is exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions “abuse of process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including the procedural law and not otherwise.” 10. But the expressions “abuse of process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including the procedural law and not otherwise.” 10. In the case in hand, as the petitioner has not preferred appeal under Section 29 of the D.V. Act against the impugned order granting interim monetary relief, inherent power under Section 482 Cr.P.C. is not required to be invoked. The blame worthy participants in their domestic relationship with the aggrieved opposite party No.1 should not be allowed to re-victimize the aggrieved challenging the impugned order to quash the entire proceeding. A decade has been passed since the order of interim monetary relief of Rs.10,000/- was awarded. When this proceeding has been instituted overstepping appeal forum and proforma respondents are made sleeping partners to quash the impugned order granting succor to the aggrieved, the object of this benevolent statute is made a deadwood. Exercise of inherent jurisdiction will further injustice. 11. For the above reasons, the CRLMC is dismissed. CRLMC dismissed.