Sri Kalu Charan Swain and Others vs State of Orissa and Another

B.P. Das, J.—The Petitioners have filed this application u/s 482 of the Code of Criminal Procedure with a prayer to quash the order passed by the Sub-Divisional Judicial Magistrate, Bhubaneswar in G.R. Case No. 1290 of 1999, taking cognizance against them for commission of the offences u/s 498 (A)/34 I.P.C. and Section 4 of the Dowry Prohibition Act.

The brief facts leading to this application are that on 22.4.1999 at about 8.30 P.M., one Smt. Bijayalaxmi, daughter of Rabi Ch. Bhola, lodged an F.IR. at Sahidnagar Police Station alleging that on 2.2.96 Petitioner No. 1, who was staying in the residence of his brother-in-law, Achutananda Nayak, in the same locality took away the complainant to marry her by giving false assurance. Both of them went to Puri where the family members of Petitioner No. 1 were present. Ultimately the marriage was solemnised on 7.2.1996 at Samantarapur Bhuasuni temple, Bhubaneswar, but the father of the said Bijayalaxmi, who was a police constable, was dissatisfied with the marriage. As the Petitioners demanded Rs. 1,00,000/- as dowry to get the marriage registered, ana as the aforesaid demand was not acceded to, the Petitioners then started torturing the said Bijayalaxmi, who was forced to go to her parents'' residence. Ultimately, on 17.3.1977, a male child was born to her.and on 8.11.1997, Bijayalaxmi left her parents'' house at Bhubaneswar. On the basis of F.I.R., G.R. Case No. 1260 of 1999 was registered. The Petitioners were arrested and remanded to jail custody and later on they were released on bail. Subsequently, Petitioner No. 3 had surrendered and was released on bail by this Court. The further case of the Petitioners is that a false case has been foisted against them and as they have not committed any offence, cognizance should not have been taken against them. It is submitted by the Petitioners that the marriage of Petitioner No. 1 with Bijayalaxmi was out of love affairs for which both of them left the house and their marriage was solemnised at Samantarapur Bhuasuni temple by exchange of garlands as well as on 16.2.1996 at Nayagarh according to Hindu rites and customs and was registered in District Sub-Registrar''s Office, Nayagarh. The father of the complainant was not in favour of the marriage and he filed I.C.C. No. 147 of 1996 for the offence under Sections 366/493/34 I.P.C. The said case was dropped by the S.D.J.M., Bhubaneswar on 27.2.1998 basing upon the affidavit filed by the complainant. It is further stated by the Petitioners that the complainant also filed another complaint bearing No. BBS 57/98 before the State Commission for Women, Bhubaneswar on 25.3.1998 against Petitioner No. 1 for dowry demand and torture, for which the Commission issued direction to Petitioner No. 1 to take back the complainant, Bijayalaxmi and the child, but unfortunately Bijayalaxmi and her father did not agree to the same and instead asked Petitioner No. 1 to stay in their house. This fact was informed to the Commissioner basing upon which the case was dropped on 1.9.1998.

In course of hearing Learned Counsel for the Petitioners draws my attention to the affidavits filed by the complainant in I.C.C. No. 147 of 1996 (Annexure 5 series), wherein she has stated that she had not been kidnapped by Petitioner No. 1 at any point of time, rather she persuaded him to marry her and the marriage between them was solemnised as per her own accord and volition. She has further stated in the affidavit that she is pulling on well with her husband and his family members and her father in order to feed fat his evil desire has levelled some wild allegations against her husband, Le., Petitioner No. 1. Basing upon the aforesaid affidavit the S.D.J.M. dropped the proceeding by his order dated 27.2.1998.

As it appears, the complainant also in her statement recorded u/s 164 Code of Criminal Procedure in the aforesaid I.C.C. Case, stated that her father was a drunkard and litigant and unscrupulous person, who had foisted false case to spoil their marital life. The complainant had also prayed to the Court to direct her father not to disturb her marital life. As it appears the Opposite Party No. 2 has taken different and inconsistent stands at different points of time, which are contradictory to each other.

In the present proceeding, however, these things could have been looked into by the trial Court. But looking into the complaint petition so filed, if the entire story of the complaint petition is taken in toto, there is nothing to show that a case is made out u/s 498-A, I.P.C. as against Narashingh Swain and Padma Swain, Petitioners 2 and 3 respectively. Accordingly, cognizance taken against the Petitioners 2 and 3 is quashed. So far as Petitioner No. 1 is concerned, I am not inclined to quash the cognizance, but it is open to the Petitioner No. 1 to approach the trial Court with all materials and the grounds taken in the proceeding with a prayer to discharge him. In that event, the trial Court shall consider the same and pass appropriate order looking into the facts and circumstances of the case.

The Criminal Misc. Case is disposed of accordingly.