Mayadhar Behera vs State

This is an application under Section 482 of Cr.P.C. seeking for quashment of the order dated 11.09.2009 passed by the learned S.D.J.M., Khurda in I.C.C. No.315 of 2009 taking cognizance of offences under Sections 294, 323, 506, 379 and 147 of I.P.C. against the petitioners, and the consequential proceeding of the said case.

I have heard the learned counsel for the accused-petitioners and the learned Addl. Standing counsel appearing for the opposite party No.1-State. Despite issuance of notice to the opposite party no.2, who is the complainant before the Court below, none appeared on his behalf. Perused the impugned order vis-à-vis the complaint petition and other relevant papers on record.

The petitioner no.3 is the wife of the opposite party no.2, their marriage having been solemnized on 27.04.1996. The rest of the petitioners are parents and other relatives of the petitioner no.3. As it further reveals from the papers on record, out of the wedlock of the petitioner no.3 and the opposite party no.2, a son has been born to them. Besides the present complaint case, the opposite party no.2 has also filed MAT Case No.193 of 2009 along with a Misc. Case No.109 of 2009 before the Senior Civil Judge, Khurda seeking for a decree of divorce and an order for custody of the minor son. On the report lodged by the petitioner no.3, there has also been a police case bearing Jatni P.S. Case No.110 dated 01.08.2009 registered under Sections 498-A, 294 and 323 of IPC read with Section 4 of the D.P. Act against the husband-opposite party no.2.

Vide the complaint, the opposite party no.2, who is working as a Lecturer in a private college, alleged inter-alia, that taking advantage of his simplicity and sobriety, the petitioner no.3 and her parental relatives harassed him mentally and physically and misbehaved with his parents and relatives, and that the petitioner no.3 acted irrationally by suspecting his character and insisting him to confine his lectureship to male students only without imparting teaching to any girl student in College. He specifically alleged that on 16.05.2009 while he was watching election bulletin at Suchana Bhawan, Bhubaneswar, the petitioner no.3 abused him filthy in presence of public and assaulted him, and that on 21.06.2009 all the petitioners forming an unlawful assembly entered his house at native village- Chanchol in the district of Kendrapara during his absence, assaulted his parents, abused and intimidated them and forcibly took away a box containing cash, gold ornaments, academic testimonials of the opposite party no.2 etc. It is further alleged that on 30.06.2009 while the opposite party no.2 was returning to Bhubaneswar from his College riding a motorcycle, all the petitioners unitedly assaulted him on the way at village- Mukundaprasad. The learned S.D.J.M. upon receiving the complaint of the opposite party no.2, recorded his initial statement followed by an inquiry under Section 202 of Cr.P.C., in course of which the mother of the opposite party no.2 and another witness were examined. Basing upon the materials so placed, the learned S.D.J.M. passed the impugned order taking cognizance of the offences indicated above and issued summons to the accused- petitioners.

The learned counsel for the petitioners contended, inter-alia, that the allegations made in the complaint being frivolous and afterthought, and the complaint having been filed to wreak the vengeance, continuance of the proceeding of the said case will result in abuse of the process of the Court. According to him, the opposite party no.2 has used the complaint case as a shield against the rigour of the penal law for the cruelty perpetuated by him on his wife, minor son and in-laws. The learned counsel in course of his argument has also pointed out some material discrepancies and contradictions in the statements recorded under Sections 200 and 202 of Cr.P.C. to contend that the complaint suffers from inherent infirmity and improbability.

The learned Addl. Standing counsel for the State further submitted that the present being not a stage to resort to any roving inquiry into the allegations, and the impugned order of cognizance having been passed on the basis of the available materials on record, there should be no interference therewith by this Court.

As rightly submitted by the learned Addl.

Standing counsel for the State, at the threshold of the proceeding where the Magistrate takes cognizance of the offence and issues process against the accused, there is no need of resorting to any threadbare analysis of the materials placed or making any roving inquiry into the allegations. But, there must be materials to prima-facie fulfill the ingredients of the offence alleged against the accused persons. The satisfaction to be recorded by the Magistrate regarding existence of a prima-facie case should be in the scale of the satisfaction of a prudent man. To put in other words, the Magistrate should apply his judicial mind while doing this exercise.

Now reverting to the case at hand, what it appears, the complainant is not a witness to the alleged incident that took place at his house at village- Chanchol, and similarly, his mother, who was examined during the inquiry under Section 202 of Cr.P.C. was not a witness to the incident which allegedly took place at Bhubaneswar on 16.05.2009 or at Mukundaprasad on 30.06.2009. No independent witness has been examined to speak about the aforesaid incidents. The independent witness, namely, Bauribandhu Nath, who was examined during the inquiry under Section 202 of Cr.P.C., has not claimed his any direct knowledge about any of the incidents alleged in the complaint. The complainant himself is also not coherent in his statement on oath vis-à-vis his written complaint. While as per the complaint, the accused-petitioners forming unlawful assembly entered his house at village- Chanchol on 21.06.2009, the initial statement of the complainant recorded under Section 200 of Cr.P.C. shows vide paragraph-4 that as if the said incident took place on 10.04.2008. The case of the complainant appears to be suffering from inherent infirmity and improbability, for which no prudent man can reach a just conclusion regarding existence of grounds for proceeding against the accused persons. In the above circumstances and keeping in view the law laid down by the Apex Court in the case of State of Haryana and others vrs. Ch. Bhajan Lal and others, reported in 1992 AIR 604, this Court is inclined to quash the impugned order, in exercise of the power under Section 482 of Cr.P.C.

In the result, this CRLMC is allowed and the impugned order with consequential proceeding of I.C.C. No.315 of 2009 on the file of the learned S.D.J.M., Khurda is hereby quashed.