Netrananda Mishra and Others vs State and Another

S.C. Datta, J.—In this petition u/s 482, Criminal Procedure Code, the petitioners seek to quash the order dated 1 -2-1996 passed by the learned Sub-divisional Judicial Magistrate, Bhubaneswar taking cognizance of offences under Sections 498A, 323/506/34, I.P.C. against all the accused persons in G.R. Case No. 2615 of 1995.

The said case was instituted on the complaint of opposite party No. 2 on the allegation that ever since her marriage was solemnised in the year 1954, petitioner No. 1, her husband Netrananda Mishra tortures her. Petitioner No. 2 is her son while petitioner No. 3 is the daughter-in-law. Petitioner No. 4 is the brother of the: daughter-in-law, namely, petitioner No. 3. It has been alleged that when elder son of the complainant was in the womb, her husband also assaulted, her. She has alleged that even after 42 years of her marriage, the torture continued and increased Finally her husband drove her out in the month of; March, 1995 and she is currently staying in her father''s house. She could not bring her share of the produce on her father''s land located at Puri because her husband, son and daughter-in-law are all torturing her. On the basis of this complaint, Kheravalanagar Police Station Case No. 260 of 1996 was started. After investigation, charge-sheet was submitted. Learned Sub-divisional Judicial Magistrate took cognizance of the offence under 498-A, 323, 506/34, I.P.C, against all the petitioners.

According to the petitioners, no offence under any of the sections mentioned in the charge--sheet has been made out. It has been alleged that'' the complainant is mentally deranged and as such, she has been harassing the petitioners in every possible way and later has lodged a complaint falsely. Accordingly, the petitioners have approached this Court for setting aside the order taking cognizance of the offence.

Heard learned counsel appearing for the parties.

It appears that the case was initiate on the complaint of opposite party No. 2. Petitioner No, 1 is her husband, while petitioner No. 2 is her son petitioner No. 3 in the daughter-in-law and petitioner No. 4 is the brother of the daughter-in-law; The complainant makes allegations against all the petitioners of mental and physical torture. She speaks of torture by her husband ever since the date of marriage in the year 1954. According to the learned counsel for the petitioners, the materials available on record before the learned Magistrate were not sufficient to make out an offence u/s 498A, 323/506/34, I.P.C. and as such, the learned Magistrate fell in error in taking cognizance of the offences under these sections. On the other hand, the learned counsel for opposite party No. 2 has cited several decisions of the Apex Court to hold that the inherent power of this Court u/s 482, Criminal Procedure Code should be very sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. In this connection, he has cited decisions reported in State of U.P. Vs. O.P. Sharma, and Mushtaq Ahmad Vs. Mohd. Habibur Rehman Faizi and others, . It appears that the question regarding exercise of jurisdiction u/s 482, Cr. P.C. came up before the Apex Court on several occasions in the past, wherein the Apex Court laid down the law in clear terms. It also appears that the Apex Court sounded a note of caution in the following words :-

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 has/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 FIR or the complaint and that the extraordinary or inherent power do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

It was further held that as far as the cognizance by the Magistrate is concerned, the inherent power can be exercised only when the F.I.R. or the complaint together with the other materials collected during investigation taken at their face value, do no constitute the offences alleged. At that stage, it is not open to the Court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out.

Bearing in mind, the aforesaid parameters, the charge-sheet and the First Information Report filed in this case were examined thoroughly. On such examination of the materials on record, I am of the clear opinion that it would be wholly unjustified if I invoke the inherent power u/s 482, Criminal Procedure Code and quash the impugned order. In that view of the matter, the impugned order does not require interference by this Court and the application u/s 482. Criminal Procedure Code is dismissed. The slay order passed on 24-12-1996 is vacated. ,

Send down the lower Court records at once.

The Criminal Misc. Case is disposed of accordingly.