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2023 DIGILAW 134 (ORI)

Ramesh Chandra Behera v. State of Odisha

2023-01-25

R.K.PATTANAIK

body2023
JUDGMENT R.K. Pattanaik, J. - Instant petition under Section 482 Cr.P.C. is at the behest of petitioner for quashing of the criminal proceeding in T.R. No.56 of 2019 pending in the file of learned Special Judge-cum-Sessions Judge, Nayagarh corresponding to Special G.R. Case No.112 of 2017 arising out of Khandapada P.S. Case No.227 of 2017 on the grounds inter alia that the same is untenable in law. 2. Brief facts of the case are that the informant lodged a written report at Khandapada P.S. alleging therein that after the death of her husband, she is living with daughters and maintaining her livelihood by having a herd of goats and in so far as the petitioner is concerned, who is a veterinary doctor, developed relationship with an assurance to keep her as his second wife. It is further alleged that thereafter the petitioner married another women and when it was protested by her, she was subjected to threat with dire consequences. The details of the other incidents which happened with the informant stand described in said report. As a result of lodging the FIR, Khandapada P.S. Case No.227 dated 22nd November, 2017 was registered under Sections 420, 493, 417, 406 and 506 IPC and Section 3(1)(r)(s) & 3(2)(va) of SC and ST (PoA) Act. Finally on completion of investigation, a chargesheet under Section 493, 417 and 506 IPC and Section 3(2)(v)(va)(v2) of SC and ST (PoA) Act was submitted whereupon the learned court below took cognizance of the said offences. 3. According to the petitioner, the allegations are false and the ingredients of the alleged offence are not satisfied, however, the learned court below without appreciating the materials on record passed the impugned order of cognizance 26th April 2019 under Annexure-3, which is liable to be interfered with. As per the petitioner, at the relevant point of time, he was the Block Veterinary doctor at Khandapada and that the informant, namely, opposite party No.2 had lodged complaint against him vis-à-vis goat loans released in favour of the beneficiaries and in fact, it was inquired into by the Chief District Veterinary Officer, Nayagarh and the same was found to be false and fabricated. As far as the promise to marry opposite party No.2 is concerned, the same has been denied by the petitioner with the contention that nothing specific has been alleged in the FIR and the relationship which she continued with him for about ten years by opposite party No.2 was while being aware of his marital status. With the above contention, the petitioner claimed that no prima facie case can be said to have been made out even by considering the allegations in the FIR and therefore, the criminal proceeding initiated at the instance of opposite party No.2 should be quashed in exercise of inherent jurisdiction of this Court. 4. Heard Mr. Tripathy, learned counsel for the petitioner and Mr. Mohapatra, learned ASC for the State. 5. Mr. Tripathy, learned counsel for the petitioner would submit that the allegations in the FIR do not make out a case against the petitioner since the essential ingredient of the alleged offences are not fulfilled as it cannot be a case of cheating or cohabitation between the parties by inducing opposite party No.2 to make her believe that the petitioner is lawfully married to her and likewise, the offences under the SC and ST (PoA) Act are not attracted but then, the learned court below lost sight of the aforesaid aspects and without application of judicial mind took cognizance of the offences against the petitioner which cannot be sustained in law. In support of such contention, Mr. Tripathy, learned counsel for the petitioner relies on a decision of the Apex Court in the case of Pramod Suryabhan Pawar Vrs. The State of Maharashtra and Others MANU/SC/1142/2019 which is with reference to the offences under Sections 376 & 417 IPC and SC and ST (PoA) Act. 6. Mr. Mohapatra, learned ASC, on the contrary, submits that the petitioner is alleged of cheating and having committed the other offences as against opposite party No.2, who narrated all the events happened prior to the lodging of the FIR and also regarding the conduct of the petitioner. 6. Mr. Mohapatra, learned ASC, on the contrary, submits that the petitioner is alleged of cheating and having committed the other offences as against opposite party No.2, who narrated all the events happened prior to the lodging of the FIR and also regarding the conduct of the petitioner. It is contended that having regard to the nature of allegations and since later to the lodging of the report, investigation was conducted by the local police which resulted in the submission of chargesheet under the alleged offences, the petitioner should be made to face the trial and it is not the case of quashing of the criminal proceeding exercising inherent powers of the Court. 7. The opposite party No.2 is a widow and she appeared to have come in contact with the petitioner under the circumstances narrated in the report. According to opposite party No.2, she received some kind of help and assistance from the petitioner in availing goat loan by her. It is further made to suggest from the FIR and her statement recorded under Section 161 Cr.P.C. that at that point in time, both of them developed relationship with an understanding that the petitioner would look after her. However, as alleged by opposite party No.2, she despite being in a relationship with the petitioner, disturbance started which ultimately led to the lodging of the FIR perhaps after he was alleged of accepting another woman. The above is precisely the allegation which has been made against the petitioner in the FIR lodged by opposite party No.2. 8. It is drawn to the attention of the Court that opposite party No.2 is also responsible for a complaint and initiation of an enquiry against the petitioner which according to Mr. Tripathy, learned counsel appearing for him resulted in exoneration from the charges levelled which is revealed from a copy of the enquiry report as at Annexure-4. It is also made to appear that after opposite party No.2 lodged a complaint against the petitioner, it was placed before the village committee which was attended by the Ward Members and people of the village and there was a decision reached at, however, opposite party No.2 did not agree to it. A copy of the resolution of the village committee meeting is at Annexure-5. Thus, according to Mr. A copy of the resolution of the village committee meeting is at Annexure-5. Thus, according to Mr. Tripathy, learned counsel for the petitioner, the parties were not in good term and the disturbances between them led opposite party No.2 to lodge the FIR and even otherwise the allegations are not only falsehood but also no case under the alleged offences is made out and hence, this Court in exercise of inherent jurisdiction should quash the criminal proceeding pending before the learned Sessions court in T.R. No.56 of 2019. 9. As far as the offence under Section 417 Cr.P.C. on a reading of the FIR and its contents, opposite party No.2 alleged that the petitioner deposited an amount of Rs.50,000/- in her account after selling goats and thereafter, withdrew the same and then when she demanded Rs.3,00,000/- to be spent towards her daughter's marriage, it was not heeded to. The manner in which opposite party No.2 was cheated and details thereof do find a mention in the FIR. From the statement of witnesses recorded under Section 161 Cr.P.C., the Court rather finds that the parties did have a relationship for quite some time and the petitioner was looking after the wellbeing of opposite party No.2. Interestingly the statement of one Santilata Naik, who is the daughter of opposite party No.2 reflects the conduct of the petitioner as she claimed that the latter to be responsible in spending a lot during the time of her marriage and other sister but the dispute arose after the petitioner accepted a second woman and ignored their mother. The petitioner though lived and shared a relationship with opposite party No.2, who is a widow but she was aware of the former's marital status. So, under the above circumstances, it may not be justified to claim that opposite party No.2 was under a false belief or impression that she was the legally wedded wife of the petitioner, which is one of the allegations she made and for the same, the petitioner has even been chargesheeted under Section 493 IPC. 10. So, under the above circumstances, it may not be justified to claim that opposite party No.2 was under a false belief or impression that she was the legally wedded wife of the petitioner, which is one of the allegations she made and for the same, the petitioner has even been chargesheeted under Section 493 IPC. 10. In Pramod Suryabhan Pawar (supra), the Apex Court in a case involving Section 376 IPC, under the facts and circumstances of the case, where the informant victim had alleged that the accused deceived her and under deception engaged in sexual relationship to establish that it was with a false promise of marriage, held and observed that the intention was not to marry or the promise to marry was false from the inception should be established. Even with regard to the offences under Section SC and ST (PoA) Act, the Supreme Court in the aforesaid decision held that on considering the materials on record, no case was made out against the accused. In fact, the ratio decidendi of the aforesaid decision is that a breach of promise to marry cannot be said to be a false promise unless the maker of the promise should have had no intention of upholding his word at the time of making it. Though the aforesaid decision is not directly applicable to the case at hand, the purpose of referring it to is that even assuming for the sake of argument about any such promise by the petitioner to opposite party No.2 to accept her as his wife in absence of any material to show that such promise was never intended to be fulfilled and cohabitation thereafter, an offence of Section 493 IPC would not be made out. It is not a case of a sexual mischief having been committed by the petitioner. As to the offence of Section 493 IPC, under a misconception, the victim must have to have the belief that she is lawfully married to the accused and with that impression given to her, there is cohabitation. In the instant case, opposite party No.2 is a widow was in relationship with the petitioner fully knowing about the latter's marital status and also the consequences. In the instant case, opposite party No.2 is a widow was in relationship with the petitioner fully knowing about the latter's marital status and also the consequences. From the FIR and the statements of the witnesses recorded under Section 161 Cr.P.C., it would not be justified to claim that opposite party No.2 was under any such misconception at the time of being in a relationship with the petitioner and was ever made to believe that she was the lawfully wedded wife while being in cohabitation. But with regard to the remaining offences as to in what manner the petitioner cheated opposite party No.2 and committed other mischief needs examination as the report and the chargesheet do reveal the facts. 11. Accordingly, it is ordered. 12. In the result, the CRLMC stands allowed in part. As a necessary corollary, the order of cognizance under Annexure-3 is quashed with respect to the offence under Section 493 IPC only leaving the learned Special Judge-cum-Sessions Judge, Nayagarh to proceed with enquiry and trial vis-a-vis Special G.R. Case No.112 of 2017 arising out of Khandapada P.S. Case No.227 of 2017.