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2019 DIGILAW 431 (ORI)

Rabinarayan Padhi v. Sudhanshubala Mishra

2019-07-03

A.K.MISHRA

body2019
JUDGMENT : A.K. MISHRA, J. 1. In this proceeding, prayer has been made to quash the order of cognizance dated 8.10.2013 passed by the learned JMFC, Pipili in I.C.C. Case No.60/2003 vide Annexure-4. 2. Heard learned counsel for the petitioner and learned counsel for the opposite party. The impugned order (Annexure-4) reveals that basing upon initial statement of the complainant and witnesses recorded U/s. 202 Cr.P.C., learned JMFC, Pipili took cognizance U/s. 323/294/354 and 506 of IPC and found sufficient ground to proceed against the accused-present petitioner. The copy of complaint petition (Annexure-1) reveals that on 24.04.2011 at 7.30 P.M., the accused along with two others came, abused, threatened and when the complainant protested, she was dragged to outside. When the husband of the petitioner came, she informed the matter. Earlier the complainant had conspired along with villagers in order to pressurize upon their family to grab their properties. The complainant informed the matter to S.P., Puri on 5.5.2011 and met the S.P. on six occasions, lastly on 1.5.2013 and as no fruitful action was taken, this complaint was filed i.e. in the month of June, 2013. Initial statement of the complainant was recorded on 14.07.2013. Three witnesses were examined U/s. 202 Cr.P.C. 3. Learned counsel for the petitioner submits that the complainant is the aunt of accused while accused was working as Inspector of Police. There was previous litigating terms between two families. Even though the I.I.C., Delang P.S. had submitted report on 28.03.2013 vide Annexure-5 the complainant suppressing that fact filed this case after two years only to harass the accused. He further submits that for the delay and litigating conduct between the parties, the complaint is nothing but malafide in nature and for that continuance of the proceeding will be an abuse of the process of the court. Learned counsel for the opposite party submits that the material i.e. enquiry report filed by accused in this court vide Annexure5 was not before the learned Magistrate and the Magistrate had no other option but to go by law to consider the complaint petition, initial statement and the statement recorded U/s. 202 Cr.P.C. and the plea taken here can be a good ground for defence in the trial but not to quash the proceeding. 4. 4. Having heard learned counsel for the parties and having gone through the copy of the complaint, initial statement, police enquiry report and the statement of the witnesses, it is found that the complainant and the accused are related to each other. The occurrence was of the year 2011 and the complaint was filed after two years. The intention of the nephew to outrage the modesty of the aunt in the backdrop of the facts stated in the complaint is not believable because had it been so, the aunt would not have waited two years to file complaint. Such conduct is not reasonable to the ordinary course of life. Further the delay is not explained. The bonafideness of the complainant is fully affected. 4(a). Added to that the Annexure-5 enquiry report by IIC, Delang P.S. dtd.28.3.2013 submitted to S.P., Puri reveals that allegations might have been made due to previous grudge and enmity on the score of civil and domestic disputes prevailing since long. 5. XXX XXX XXX 5(a). The Hon'ble Supreme Court in the case of State of Haryana and Others. vs Ch. Bhajan Lal and Ors., (1992) AIR SC 604 at para8 has held as follows:-. "8.1. 5. XXX XXX XXX 5(a). The Hon'ble Supreme Court in the case of State of Haryana and Others. vs Ch. Bhajan Lal and Ors., (1992) AIR SC 604 at para8 has held as follows:-. "8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 channelised and inflexible guide- 7 myriad kinds of cases wherein such power should be exercised: (a) where 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; (b) 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; (c) where the uncontroverted allegations made in the FIR 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; (d) where the allegations in the FIR 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; (e) 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; (f) 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; (g) 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 6. Having regards to the facts in the case at hand, I am of the considered opinion that this complaint was filed after two years of delay with an ulterior motive for wreaking vengeance on the accused. 6(a). As such the continuance of the complaint would cause prejudice and oppression and for that it is desirable to quash the proceeding keeping the law enunciated by the Hon'ble Supreme Court. Accordingly, the order of cognizance passed by learned JMFC, Pipili in I.C.C. Case No.60 / 2003 on 8.10.2013 vide Annexure-4 is quashed. The CRLMC is accordingly allowed.