Kartik Chandra Dash vs State of Orissa

Bidding adieu to the timeless treasures of childhood memories and intense feeling of adolescence, making promises before the sacred fire with

the life partner to laugh, cry and grow with him, a bride puts her first step in her in-laws'' house to share unconditional love with all. The sweet

dreams and expectation from the new world gives her an amazing thrill with a little bit of uncertainty. Carrying valuable tips received from her

father''s place and expecting guidance from her senior inlaws, she starts shouldering the responsibility of tomorrow. Lucky are those who get

favourable and conducive environment. Some are left in hostile atmosphere with a feeling of insecurity and they start fearing everything and

everybody. Their sacrifice does not bring any sympathy for the dowry greedy groom''s family. Some fights back, some tolerates but when limit of

tolerance reaches its pinnacle, patience shows no sign of improvement of the situation and nobody comes forward with supportive hands, the

unfortunate woman decides to close her tearing eyes forever. The petitioner Kartik Chandra Dash who is the fatherin- law of Arnapurna Kar

(hereafter ''the deceased'') has filed this application under section 482 of the Criminal Procedure Code for quashing the impugned order dated

12.08.2005 passed by the learned S.D.J.M., Jagatsinghpur in G.R. Case No. 14 of 2005 in taking cognizance of offences under sections 498-A,

406, 304-B read with section 34 of the Indian Penal Code and section 4 of Dowry Prohibition Act and issuance of process against him. The said

case arises out of Raghunathpur P.S. Case No. 01 of 2005.

The case was instituted on 08.01.2005 on the basis of the first information report lodged by Kedar Kumar Kar of village Chandpur before the

officer in charge, Raghunathpur police station. As per the first information report, it is the prosecution case that the deceased who was the sister of

the informant married the son of the petitioner namely Biplab Kumar Dash on 18.05.2003 as per Vedic rites. At the time of marriage, as per the

demand of the bridegroom side, cash of Rs.1,40,000/- (rupees one lakh and forty thousand), gold ornaments and other household articles were

given towards dowry. The demand of further cash continued after marriage and the informant used to fulfill the same. When further demand of cash

of Rs.1,00,000/- (rupees one lakh) was not fulfilled, the deceased was not allowed to visit her paternal place. The deceased gave birth to a male

child about three months prior to the lodging of the first information report. The sister-in-law, mother-in-law, father-inlaw (petitioner) and husband

of the deceased were subjecting her to physical and mental torture. It is further stated in the F.I.R. that on 07.01.2005 in the night at about 3 o''

clock, the husband of the deceased called the informant over phone and intimated him about the serious ailment of the deceased. When the

informant came to the in-laws'' house of the deceased, he found the deceased dead. The petitioner told the informant not to report the matter

before police and to amicably settle the matter or else they would be put to trouble. It is further stated in the F.I.R. that on many an occasion, the

deceased was physically assaulted by her sister-in-law and mother-in-law and the husband of the deceased used to tell that he is an advocate of

High Court and nobody can do anything to him and after the death of the deceased, he would marry an engineer girl. It is further stated in the

F.I.R. that two days prior to the lodging of the F.I.R., the deceased talked with the informant over phone and told him that her husband was asking

her to bring cash of Rs.50,000/- (rupees fifty thousand) by the next day or else he would not keep any relationship with her. The deceased

expressed inability of the informant to arrange such a huge amount within such a short span of time. It is further stated in the F.I.R. that the in-laws''

family members assaulted the deceased on the previous day of her death which was told to the informant by the deceased. The informant

apprehended that the husband, father-in-law (petitioner), mother-in-law and sister-inlaw have killed the deceased. On the basis of such first

information report, Raghunathpur P.S. Case No.01 of 2005 was registered under sections 304-B, 302, 498-A read with section 34 of the Indian

Penal Code and section 4 of Dowry Prohibition Act. During course of investigation, inquest over the dead body was conducted in presence of the

Executive Magistrate and relations of the deceased and it was sent for post mortem examination. It was found during investigation that the death of

the deceased was due to hanging in her in-laws'' house and the same opinion was also given by the doctor after conducting post mortem

examination. The viscera were sent for chemical examination and the chemical examination report indicated no intoxicated or poisonous substance

in the stomach. It was found during course of investigation that the marriage was solemnized on 18.04.2003 and prior to the marriage, the

petitioner demanded dowry and also received the same. After the marriage, the deceased was living in a joint family with her husband, father-in-

law (petitioner) and mother-in-law at village Kharipadia and both the sister-in-laws were living outside the State of Odisha and they used to visit

their father''s place only on festive occasions. It was further found that there was bitter conjugal relationship between the deceased and her

husband and the husband of the deceased along with his father (petitioner) and mother were demanding cash from the deceased to be brought

from her house and they tortured her mentally and physically and finding no alternative, the deceased committed suicide. After completion of

investigation, charge sheet was submitted under sections 498-A, 304-B, 406 read with section 34 of the Indian Penal Code and section 4 of the

Dowry Prohibition Act against the husband of the deceased and her father-in-law (petitioner) and mother-in-law (dead). On receipt of the charge

sheet, the learned S.D.J.M., Jagatsinghpur found prima facie materials against the petitioner and Biplab Kumar Dash and Sarojini Dash, the

husband and mother-in-law of the deceased respectively and accordingly passed the impugned order.

Mr. Debasis Sarangi, learned counsel appearing for the petitioner vehemently contended that even though the unnatural death of the deceased

had taken place within two years of marriage but except the ligature mark around the neck, no other external injury was noticed on the person of

the deceased which falsifies any physical torture on the deceased soon before her death. It is further contended that without any specific material

against the petitioner who is the father-in-law of the deceased, charge sheet has been submitted in a mechanical manner and the learned Magistrate

has also not applied his mind while passing the impugned order and continuance of proceeding against the petitioner would amount to abuse of

process and therefore, in order to prevent abuse of the process of the Court, it is a fit case to quash the impugned order so far as the petitioner is

concerned otherwise it would result in miscarriage of justice. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel appearing for the State

challenged the maintainability of the petition under section 482 of Cr.P.C. for quashing the order of taking cognizance on the ground of availability

of alternate remedy under section 397 of Cr.P.C. He contended that there was every justification on the part of the investigating agency to submit

charge sheet against the petitioner and the involvement of the petitioner in torturing the deceased physically and mentally is apparent on the face of

the record. The learned counsel placed the statements of the witnesses particularly the family members of the deceased from her paternal side and

contended that the situation in the house of the petitioner was so intolerable for the deceased that she was compelled to take a decision to end her

life leaving her male child of just three months old and therefore, it is not a fit case to exercise the inherent power under section 482 of Cr.P.C.

Adverting to the preliminary objection of the learned counsel for the State relating to the maintainability of this petition under section 482 of

Cr.P.C. on the ground of availability of alternate remedy under section 397 of Cr.P.C., some of the decisions would suffice the issue.

In case of S.W. Palanitkar and others V. State of Bihar and another reported in A.I.R. 2001 S.C. 2960, it is held as follows:-

28......Exercise of inherent power is available to the High Court to give effect to any order under the Cr.P.C. or to prevent abuse of the process

of any Court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 Cr.P.C. should be consistent

with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an

instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but

necessary also, so that the judicial forum of Court may not be allowed to be utilized for any oblique motive. When a person approaches the High

Court under Section 482 Cr.P.C. to quash the very issue of process, the High court on the facts and circumstances of a case has to exercise the

powers with circumspection as stated above to really serve the purpose and objection for which they are conferred.

In case of Adalat Prasad V. Rooplal Jindal and Ors. reported in (2004) 29 Orissa Criminal Reports (SC) 264, a three-Judge Bench of the

Hon''ble Supreme Court has held as follows:-

It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any

material implicating the accused or in contravention of provisions of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the

relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not

contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy

lies in invoking Section 482 of Code.

In the case of Anjula Divedi and Ors. V. State reported in ILR 2016 KARNATAKA 1899, a Division Bench of Karnataka High Court was

called upon to decide whether or not a petition under section 482 of Cr.P.C. is maintainable though remedy is available against the order of the

Criminal Court under section 397 of the Cr.P.C, it was held as follows:-

32........The petition filed under section 482 of Cr.P.C. is maintainable under extraordinary circumstances mentioned supra, though remedy is

available against the order of the Criminal Court under section 397 of Cr.P.C. However, jurisdiction under section 482 of Cr.P.C. will be

exercised in such an event by the High Court with utmost care and caution, sparingly and under extraordinary circumstances.

Therefore, the preliminary objection raised by the learned counsel for the State fails.

Perused the first information report and the statements of the witnesses namely, Keshab Kar, brother of the deceased, Sakhi Devi, mother of

the deceased and also the 161 Cr.P.C. statement of the informant and the statements of Mahendra Mishra, uncle of the deceased, Ajaya Kumar

Kar and Askhaya Kumar Kar, cousin brothers of the deceased and also the independent witnesses. The materials on record not only prima facie

indicate about the demand of dowry at the time of marriage by the petitioner but also after the marriage. It further reveals how the in-laws family

members including the petitioner were subjecting the deceased to physical and mental torture in connection with demand of dowry after marriage.

The deceased was regularly complaining about the conduct of the petitioner and other in-laws family members before the informant and other

family members of her paternal side. The disclosure of the deceased before her family members prior to her death relating to torture is relevant

under section 32 of the Evidence Act. The deceased met with an unnatural death within two years of her marriage. It cannot be lost sight of the fact

that at the time of her death, she was blessed with a male child who was just three months old. Her untimely death, adverse and hostile

circumstances prevailing in the house of the petitioner coupled with the regular complain made by the deceased particularly soon before her death

against the conduct of the petitioner and other in-laws prima facie makes out the ingredients of the offences under which charge sheet has been

submitted. The manner in which the petitioner persuaded the informant not to report the matter before police and also to amicably settle the issue,

raises accusing finger towards the petitioner relating to his guilty conscience. The role played by the petitioner at the time of negotiation of the

marriage in demanding dowry and continuously torturing the deceased after the marriage in connection with further demand of dowry and even

soon before her death and his conduct to screen the offence after it was committed are sufficient at this juncture to prosecute the petitioner. The

contention of the learned counsel for the petitioner that there is no specific overt act alleged against the petitioner that soon before the death of the

deceased, she was subjected to cruelty or harassment by the petitioner for, or in connection with, any demand for dowry is not acceptable in view

of the foregoing discussions.

In case of Surinder Singh V. State of Haryana reported in (2014) 57 Orissa Criminal Reports (SC) 101, it is held as follows:-

13........Thus, the words ""soon before"" appear in Section 113-B of the Indian Evidence Act, 1872 and also in Section 304-B of the Indian Penal

Code. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was

caused soon before the death. The interpretation of the words ''soon before'' is, therefore, important. The question is how ''soon before''? This

would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset

of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be

verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be

depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to

the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a

woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as

to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore,

''soon before'' is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be

kept in mind while examining each case of dowry death.

In case of Rajinder Singh V. State of Punjab reported in (2015) 61 Orissa Criminal Reports (SC) 78, it is held as follows:-

We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the

word ""soon"" does not mean ""immediate"". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of

Section 304-B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that

the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B.

In case of Kans Raj V. State of Punjab reported in (2000) 19 Orissa Criminal Reports (SC) 65, it is held as follows:-

5........... For the fault of the husband, the inlaws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In

cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable

doubt. By mere conjectures and implications, such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has,

however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is

likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum

people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the

prosecution even against the real accused as appears to have happened in the instant case.

In case of Preeti Gupta and Anr. V. State of Jharkhand and Anr. reported in (2010) 47 Orissa Criminal Reports (SC) 367, it is held as follows:-

The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in

majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the

conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these

complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband''s

close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an

entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals

that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of

common knowledge that in cases filed by the complainant if the husband or the husband''s relations had to remain in jail even for a few days, it

would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

In case of Kailash Chandra Agrawal V. State of U.P. reported in (2014) 59 Orissa Criminal Reports (SC) 636, it is held as follows:-

9.........The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at

best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to

support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific

role and material to support such role.

In the case in hand, after scrutinizing the materials on record with great care and circumspection, it appears that specific role has been attributed

to the petitioner by the witnesses and there are materials to support such role. Neither it is a case of ''no evidence'' nor on the basis of conjectures

and implications, has the petitioner been arrayed as an accused in the case. Moreover at the stage of taking cognizance, it is not the requirement of

law that the Magistrate would see whether the materials are sufficient to establish the guilt of the accused. The Court should not get into the merits

of the case made out by the police in the chargesheet, with a view to calculate the success rate of prosecution in that particular case. At this stage,

the Court''s duty is limited to the extent of finding out whether from the materials placed before it, offence alleged therein against the accused is

made out or not with a view to proceed further with the case.

The Learned counsel for the petitioner placed reliance in the case of State of Karnataka V. L. Muniswamy and Ors. reported in A.I.R. 1977 S.C.

1489, wherein it is held as follows:-

7..........In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the

proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.

The saving of the High Court''s inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a

court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind

a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in

quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered

according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object

and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would

be impossible to appreciate the width and contours of that salient jurisdiction.

Law is well settled that inherent power of the High Court under section 482 of Cr.P.C. should be exercised sparingly, with circumspection and in

the rarest of rare cases and not according to whims and caprice in a routine manner. When it is brought to the notice of the Court that grave

miscarriage of justice would be committed if the impugned order is allowed to remain in force and the accused would be harassed unnecessarily,

the High Court can invoke the inherent power to prevent abuse of process of any Court or otherwise to secure the ends of justice. In view of the

foregoing discussions, I find no illegality in the approach of the Investigating Officer in submitting charge sheet against the petitioner or with the

impugned order passed by the learned S.D.J.M., Jagatsinghpur.

Accordingly, I am not inclined to invoke the inherent power under section 482 of Cr.P.C. to quash the impugned order dated 12.08.2005

passed in G.R. Case No. 14 of 2005 pending on the file of S.D.J.M., Jagatsinghpur. The observation made while disposing of this CRLMC

application and the findings recorded herein are for the purposes of adjudication of this CRLMC application only. This may not be taken as an

expression of opinion on the merits of the case. The learned Trial Court would be at liberty to decide the matter in the light of evidence which

would be adduced by the respective sides de hors any finding recorded in this judgment. In the result, the CRLMC application being devoid of

merits, stands dismissed. The interim order of stay of further proceeding passed by this Court in Misc. Case No.2710 of 2005 on 21.12.2006

stands vacated. Since the case is of the year 2005, the learned S.D.J.M., Jagatsinghpur shall take expeditious step for commitment of the case to

the Court of Session and the learned trial Court shall do well to expedite the trial and conclude the same within a period of six months from the

date of framing of charge.