Prafulla Behera and Others vs State and Another

P.K. Tripathy, J.—Heard.

In this application u/s 482, Code of Criminal Procedure Petitioners pray to quash the order of cognizance in I.C.C. No. 20 of 2002 of the Court of J.M.F.C., Daspalla.

Petitioners are the accused persons in the above noted complaint case and Opposite party No. 2 is the complainant. Admittedly, Opposite party No. 2 is the wife of the accused-petitioner No. 1. The accused-petitioner Nos. 4 and 5 are the parents-in-law of the complainant whereas accused-petitioner Nos. 2 and 3 are her brother-in-laws being the younger brothers of her husband.

It appears from the xerox copy of the complaint that marriage between Petitioner No. 1 and the opposite party No. 2 was solemnized about 10 years before the date of occurrence. The date of occurrence as alleged was on 4.4.2002 at about 8 a.m. According to the allegation in the complaint, there is persistent demand of dowry and on account of that torture on the complainant by the accused persons and because of that caste Panchayats were held in past besides a criminal case vide G.R. Case No. 102 of 2001 being instituted. That G.R. Case ultimately resulted in a final report because a signed blank paper was obtained from her and utilised for that purpose. She has alleged that on 4.4.2002 the Petitioner Nos. 1 and 2 physically man-handled and assaulted her with a view to do away with her and the other accused persons instigated them in that respect. It is further stated in that complaint that it is due to intervention of the witnesses that her life could be saved. On the basis of such allegations complainant prayed to take cognizance of the offences under Sections 294, 498 (A), 307, 506/34 Indian Penal Code read with Section 4 of Dowry Prohibition Act. After institution of the complaint, the complainant examined her father and herself and after perusal of such statements, on 9.5.2002 learned J.M.F.C., Daspalla passed the impugned order stating therein that "I do find prima facie evidence exists against the accused persons under Sections 498(A)/307/506/34, Indian Penal Code and Section 4, D.P. Act. Issue warrants against the accused persons fixing 9.6.2002 for their production."

Mr. Das, learned Counsel for the Petitioners argues that in the complaint, the complainant has stated that she reported the incident to the police, therefore, learned J.M.F.C., Daspalla should not have passed the impugned order without complying with the requirement of law u/s 210, Code of Criminal Procedure In that respect he relies on the case of Ambika Prasad Das v. Babita Jalli, 2001(2) OLR 725. The aforesaid ratio could have been followed in this case if the accused persons would have been able to show to this Court that in fact on the basis of the informations given by the complainant relating to the occurrence of 4.4.2002 a case was registered in the concerned police station. When that is not the fact, this Court does not find any illegality in the conduct of learned J.M.F.C. or illegality in the impugned order.

Learned Counsel for the Petitioner further argues that when the previous G.R. Case with the similar allegations resulted in a final report that indicates that complainant is in the habit of instituting false case against her husband and in-laws and taking that circumstances into consideration the impugned order should be quashed. The aforesaid contention is not acceptable for the simple reason that every allegations/occurrence is to be decided on its own facts and evidence. Thus the aforesaid alleged conduct of the complainant in the present case is not sufficient to quash the order of issue of process. However, at the time of trial such contention can be gone into and that can be appropriately considered with reference to evidence on record. At the threshold of the criminal proceeding the said contention has not made enough scope to quash the order of issue of process.

Learned Counsel for the Petitioner states that at the stage of the proceeding u/s 200 Code of Criminal Procedure complainant only examined herself and her father as the solitary witness and no other evidence was adduced, and when the Court below has taken cognizance of the offence u/s 307, Indian Penal Code, it was incumbant on his part to conduct an enquiry as provided in proviso to Sub-section (2) of Section 202, Code of Criminal Procedure On perusal of the complaint, the dates on which statements were recorded and thereafter passing the impugned order after adjournments, this Court finds substance in the aforesaid argument to consider that contention after perusal of the evidence on record inasmuch as learned Magistrate did not proceed with the case in accordance with Section 200, because he postponed the issue of process and conducted an inquiry which was essentially governed by the second proviso to Section 202(2), Code of Criminal Procedure But that aspect shall be considered after perusal of the evidence on record.

On perusal of the copies of the statements of the complainant and her father and the allegations in the complaint, it appears that though in the complaint the complainant has alleged about instigation and abetment made by the other accused persons by instigating accused Nos. 1 and 2 (petitioner Nos. 1 and 2) to assault and do away - with the complainant, the complainant in her statement has stated nothing relating to abetment of such offences by the remaining accused persons (petitioner Nos. 3 to 5). In her statement she alleged about assault and use of force on her by her husband (Petitioner No. 1) and the brother-in-law namely accused Santosh Behera (petitioner No. 2). In her statement she has alleged that her parents-in-law and ''Nananda'' (sister-in-law) instigated her to commit suicide. No such allegation finds place in the complaint. There is no other allegations in the complaint or in her statement against accused/petitioners Nos. 3 to 5 so as to disclose a prima facie case against them. Allegations are only against the husband and the brother-in-law (accused Nos. 1 and 2). Apart from that, it appears from her statement that she did not sustain any injury. She has also not stated that because of overt act made by the said accused persons she was to suffer death unless she would have been rescued by the witnesses. Admittedly, her father (P.W. No. 1) is not a witness to the occurrence. Thus, on a reading of her statement, a case for the offence under Sections 307 or 506, Indian Penal Code is not at all made out. Learned J.M.F.C., Daspalla while reading such statements should not have ignored to remember the ingredients of offences punishable under Sections 307 and 506, I.P.C.

For the aforesaid reasons, this Court quash the order of issue of process against accused-petitioner Nos. 3 to 5 for no offence being made out against them, and similarly quash the order of cognizance for the offences punishable under Sections 307 and 506, Indian Penal Code. In other words, the criminal proceeding as against the accused-petitioner Nos. 1 and 2 shall proceed in accordance with law for the offences u/s 498(A)/34, Indian Penal Code read with Section 4 of D.P. Act. In view of that, if the said two Petitioners shall voluntarily surrender and apply for bail within a period of three weeks, then their bail applications be considered in accordance with law, and only in the event of their failure to appear, non-bailable warrant of arrest be ordered to be executed. If any of them have already appeared in that Court, then such accused need not further surrender in accordance with the above direction.

The Criminal Misc. Case is accordingly allowed in part.

Criminal Misc. Case partly allowed.