Subash Chandra Jena and Another vs State of Orissa and Another

I.M. Quddusi, J.—By means of this petition filed u/s 482, Code of Criminal Procedure., the Petitioners have prayed for setting aside/quashing the impugned Order dated 26.7.2004 passed by the Learned Additional Session Judge, F.T.C.-1, Bhadrak in S.T. No. 20/77 of 2004 rejecting their application for discharge and holding that the charges are to be framed against Petitioner No. 1 for the offences punishable under Sections 376, 439, 417, Indian Penal Code and against Petitioner No. 2 u/s 4 of the Downy Prohibition Act.

The brief facts of the case are that a girl ''P.J.'' (name not disclosed) aged about 15 years, filed a complaint case in the Court of the Learned Magistrate which was committed to the Court of Session and now pending before the Learned Additional Sessions Judge, F.T.C.-1, Bhadrak. In the complaint she had alleged that she was aged about 15 years in the year 1997. On 1st day of Pausa Sankranti when she was plucking vegetables from her father''s bari, accused Subash Jena finding her alone asked her to have sex with him to which she did not succumb. The said accused suddenly caught hold of her and forcibly committed sexual intercourse with her and after commission of sexual intercourse he promised to marry her. On such promise accused Subash took her to the village deity where he garlanded her and put vermillion on her upper head. Believing the marriage to be trued one the victim allowed the accused-Petitioner No. 1 for regular sexual intercourse with her. In course of time she became pregnant and gave birth to a female child in the year 1999. When the villagers came to know about her pregnancy, they called a meeting in the month of Asadh, 1999 in the village and asked her about her pregnancy. She narrated the entire incident before the assembled villagers, after which the villagers called the accused-Subash and his father Sanatan. Accused Subash admitted to have married the complainant before the collage deity by putting garland and vermillion on her upper head. He also admitted his physical relationship with the complainant giving assurance of marriage and the conception through him. The accused further stated that his parents had also been informed of such facts. The villagers also asked Sanatana Jena, the father of accused Subash to observe the marriage ceremony, to which the latter demanded Rs. 10,000/- as dowry for accepting her in his family as the wife of his son Subash. The father of the complainant finding no other way, agreed to give Rs. 7,000/- as dowry which was also consented by accused Sanatan. Some days thereafter father of the complainant and some other villagers went to the house of the accused persons to give Rs. 7,000/- to them for solemnizing the marriage ceremony between the complainant and Subash as per social custom. Accused Sanatan did not receive the money and told that accused Subash had left the house. However, he promised to receive the money, materialize the marriage and accept the complainant as here daughter-in-law after return of accused Subash. The father of the complainant and some villagers again went to the house of the accused persons and asked the accused persons to accept the complainant and her child but accused Subash evaded his promise and refused to marry her. Likewise accused Sanatan also went back from his promised to accept the complainant as her daughter-in-law and told that he would get a dowry of Rs. 20,000/- if he gets his son Subash married elsewhere. On the aforesaid allegations, the complainant presented a complaint petition in the Court of S.D.J.M., Bhadrak vide I.C.C. No. 358 of 2000. After conducting necessary enquiry u/s 202, Code of Criminal Procedure. Learned S.D.J.M., Bhadrak issued process against the accused persons. After appearance of the accused persons, the case was committed to the Court of Sessions Judge, Balasore which is now pending before the Learned Additional Sessions Judge, F.T.C.-1, Bhadrak.

After taking a patient hearing of the Learned Counsel for the parties, Learned Court below rejected the application of the accused persons for their discharge.

Learned Counsel for the Petitioners have submitted that no prima facie case was made out against the Petitioners and there was no material available for framing of charge against the accused-petitioners. There was delay in lodging the complaint and no independent corroboration to the statement of the complainant was available. One of the points raised before the Learned Court below was that charge u/s 4 of the Dowry Prohibition Act cannot be framed as the same was barred by limitation. Learned Court below has dealt with the application in its impugned order.

In the case of M. Naryanadas v. State of Karnataka AIR 2003 SCW 6030 the Apex Court has held that no conclusion can be drawn by High Court that allegations made in complaint do not prima facie constitute any offence nor disclose a cognizable offence justifying an investigation by police officer.

Further in the case of State of Madhya Pradesh v. Awadh Kishore Gupta AIR 2003 SCW 6501 it has been held by the Apex Court that the inherent power should not be exercised by the High Court to stifle a legitimate prosecution. It has been further held that it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. It if appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.

On perusal of the complaint of the complainant, i.e., the alleged victim, it cannot be said at this stage that no prima facie case is made out against the Petitioners. With regard to the question of limitation it is to be noticed that in Section 473, Code of Criminal Procedure. it has been provided that any Court may make cognizance of an offence after the expiry of period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. Therefore, the Trial Court is at discretion to pass appropriate orders in case any application u/s 473, Code of Criminal Procedure. is moved and it would not be proper for this Court at this stage to see whether the cognizance is liable to be taken after expiry of the period of limitation.

In view of the above-mentioned facts and circumstance of the case, I see no good ground to interfere in the impugned order passed by the Learned Court below.

The petition is devoid of merit and is, therefore, dismissed.

Petition dismissed.