Orissa High Court
Ujjal Maitra And Ors. vs Kanchan Maitra on 19 September, 1997
Equivalent citations: 1998CRILJ1002, 1997(II)OLR415
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard.
2. This is a proceeding under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') filed by the accused persons in Complaint case vide I.C.C. No. 41/95 of the Court of sub-divisional Judicial Magistrate, Panposh at Uditnagar, Rourkela. Complainant is the opposite party. The petitioners have prayed that in exercise of the power under Section 482, Cr.P.C. this Court should quash the impugned order dated 13.7.1995 wherein order was passed to issue process under Section 204, Cr.P.C. against the petitioners for the alleged offences under Sections 498A/34, IPC and under Sections 4 and 6 of the Dowry Prohibition Act, 1961.
3. During the course of hearing argument on admission, learned counsel for the petitioners confines his argument only with respect to accused/petitioner Nos. 4 and 5 and he does not press the case so far as accused/petitioner Nos. 1, 2 and 3 are concerned. Therefore, the scope of examinations of the impugned order is confined to the said two petitioners.
4. The inter se relationship of the parties is not at dispute. The opposite party is the wife of accused/petitioner No. 1. Accused/petitioner Nos. 2 and 3 are the parents in-law and accused/petitioner Nos. 4 and 5 are respectively brother-in-law and sister-in-law of the opp. party.
5. The facts, in brief, as alleged in the complaint petition is that after marriage between the petitioner No. 1 and the opposite party on 14/15.2.1994 the dispute arose when allegedly the petitioner No. 1 demanded additional dowry on the nupial, day and in that connection illtreated and misbehaved her cruelly. On ASTAMANGALA ceremony day the petitioner No. 1 asked the opposite party to bring all the marriage presentations given by her friends and relatives or else not to return. About 15 to 20 days after the marriage, the petitioner No. 1 with the parents i.e. petitioner Nos. 2 and 3 asked her to write to her father for further dowry and when she refused, she was assaulted by them. In April, 1994, when the petitioner Nos. 1 to 3 knew that she had conceived, they insisted for abortion and on that account the petitioner No. 1 assaulted her. In may, 1994, the opposite party was asked to handover her educational certificates, so that loan from D.I.C. could be obtained in her name. When she refused, the petitioner No. 3 abused and assaulted her. At that time, as stated in the complaint petition, petitioner Nos. 4 and 5 also abused her. Time and again, the petitioner No. 1 along with petitioner Nos. 2 and 3 went on demanding further dowry and illtreated her both physically and mentally.
6. From July, 1994 till the date of Durgapuja, the opposite party was not allowed medical aid in spite of the fact that she was pregnant. Petitioner No. 3 did not allow the opposite party to sleep in the bed room with the petitioner No. 1 and insisted on her to bring further dowry. When the opposite party went to her father's house during Durgapuja petitioner No. 1 did not accompany her and when she returned without bringing further dowry she was illtreated by the petitioner Nos. 1 and 3. When father of the opposite party expired and her brother came to take her, petitioner Nos. 1 to 3 did not allow her to go and during obsequies, the petitioner No. 1 quarrelled with her brother on the matter of additional dowry demand etc. In November, 1994 the opposite party was admitted in the hospital for delivery and she gave birth to a daughter, but the petitioners neither came to see the baby nor observed the rituals according to caste custom. On 19.3.1995 petitioner Nos. 1 to 4 with two other persons went to the house of the opposite party (parent's house), abused her in filthy language and demanded further dowry and also tried to snatch away the baby. On 26.3.1995 petitioner Nos. 1 and 4 went and reminded her to come with money or else not to come. On 4.4.1995 while the opposite party was returning from the Family Court after giving evidence in a case instituted by her under Section 9 of the Hindu Marriage Act, the petitioner Nos. 1, 2 and 4 threatened her and then (obviously) the petitioner No. 1 threatened to divorce her. The opposite party had brought in dowry, a scooter and gold ornaments weighing 8 tollas along with other house-hold articles worth about Rs. 80,000/- and the petitioner Nos. 1 and 4 have either mortgaged or sold the gold ornaments for the benefit of their business and the petitioner No. 3 has refused to part with such ornaments to the opposite party. The opposite party did not report the incident to the local police as one of the friends of petitioner No. 4 had intimated her (opposite party) that he is working in Court and police officers are known to him, who will support them.
7. To make it short, it may be stated that as against the aforesaid allegations of illtreatment, cruelty and dowry demand, in her initial statement recorded by the learned S.D.J.M., she has made no specific allegation against the petitioner Nos. 4 and 5 regarding demand of dowry or illtreatment and cruelty. In the enquiry, under Section 202, Cr.P.C. her brother has been examined as the solitary witness and in that statement also there is no specific allegation in the aforesaid mariner against the petitioner Nos. 4 and 5. The narration of events both in the complaint petition as well as in the statements mentioned above, the accusation regarding dowry demand and torture on that account is against the petitioner Nos. 1 and 3 i.e. the husband and parent-in-law. That being the factual position, the petitioners' counsel argues that issue of process under Section 204, Cr.P.C. against petitioner Nos. 4 and 5 vide the impugned order is legally not sustainable and, therefore, the order of cognizance taken and the order under Section 204, Cr.P.C. to issue process against petitioner Nos. 4 and 5 be quashed by this Court in exercise of the power under Section 482, Cr.P.C.
8. Learned counsel for the opposite party without disputing the aforesaid factual aspect makes a faint submission that words "in-laws" used in the statement of the opposite party also includes petitioner Nos. 4 and 5 and, therefore at the stage, of issue of process there was prima facie evidence against the said two petitioners thus the power under Section 482 should not be exercised in their favour.
9. So far as the legal position is concerned, it is the settled position of law that the scope of enquiry under Section 202, Cr.P.C, is confined to ascertainment of the truth or falsehood the allegations for the limited purpose of finding out whether a prima facie case, for issue of process has been made out. The Magistrate empowered to take cognizance has been given discretion to find out the aforesaid aspect.
10. When the discretion is judiciously exercised and order passed, it is not permissible for the higher Court to substitute their own discretion for that of the Magistrate or to examine the case on merit with a view to find out whether the allegations are sufficient to prove the accusations resulting in conviction of the accused. (See the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. : AIR 1976 SC 1947). In that case the apex Court have, however, observed that :
"........... Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :
(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ;
(2) where the allegations made in the complaint are potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
11. In the case of Dr. Sharda Prasad Sinha v. State of Bihar (AIR 1977 SC 1754) the allegations against the accused persons was that in violation of provision of law in Sections 54 (a) and 57(c) of the Bihar and Orissa Excise Act, 1915 and without having requisite permission or authority from the competent authority the accused had organised Cabaret dance along with sale of prohibited liquors. Taking the totality of the facts and circumstance which the Hon'ble apex Court examined, it found that the ingredients of the aforesaid offence were not made out from the alleged facts. It was thus propounded that :
"2. It is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence................."
12. In the case of Punjab National Bank and Ors. v. Surendra Prasad Sinha (AIR 1992 SC 1815) Hon'ble apex Court have observed that :
"Judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly.............."
(Quoted from placitum)
13. In the case of Krishnan and Anr. v. Krishnaveni and Anr. (1977 Crl.L.J. 1519) the apex Court has reiterated the aforesaid principle and propounded that on examination of the record if it is found that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or the order passed requires correction, in such cases it is but the duty of the High Court to have it corrected at the inception so as to avoid miscarriage of justice and to meet the ends of justice or to prevent the abuse of process. The High Court is preserved with inherent power and would be justified to exercise the same in appropriate case at appropriate stage.
14. The aforesaid are a few of the innumerable cases of judicial pronouncement wherein guide-line has been provided as to how and when inherent power under Section 482, Cr.P.C. should be exercised by the High Courts. Needless to say that keeping in view the facts and law, it is for the High Court to find out if the impugned order is permitted to continue whether it will amount to an injustice or abuse of process of law and in such cases only, the High Court should invoke the inherent power.
15. With the above backdrop of legal position if the fact in the hand is examined, then the allegations in the complaint petition vis-a-vis the initial statement of the complainant goes to show that the petitioner Nos. 1 to 3 were the author of the alleged crime. Thus, the allegations ipso facto establish a prima facie case against the petitioner Nos. 1 to 3. Hence, taking up cognizance and issue of process under Section 204, Cr.P.C. against the petitioner Nos. 1 to 3 is based on prima facie materials available in the case record and for that reason, perhaps, at the stage of argument, learned counsel for the petitioners does not press their case. But so far as it relates to petitioner Nos. 4 and 5 the facts alleged in the complaint petition are confined to only use of abusive words on one or two occasion and the petitioner No. 4 accompanying his brother, i.e. petitioner No. 1 on one or two occasions. That itself does not satisfy the ingredients either under Section 498A or under Sections 4 or 6 of the Dowry Prohibition Act. Notwithstanding that in her initial statement the complainant has not alleged anything against the petitioner Nos. 4 and 5. In other words, during the enquiry under Section 202, Cr.P.C., no statement is forthcoming to implicate the petitioner Nos. 4 and 5 with the alleged crime under Section 498A/34, IPC read with Sections 4 and 6 of the D.P. Act.
16. The impugned order is quoted below :
"Complainant filed hazira of witness for enquiry under Section 202, Cr.P.C. One witness Chakraverty is examined in the enquiry under Section 202, Cr.P.C. Enquiry is concluded. Perused the complaint statement on S/A and the statement recorded in the enquiry under Section 202, Cr.P.C. I am satisfied that there are grounds to proceed under Section 498A/34, IPC and under Sections 4 and 6 of Dowry Prohibition Act against all the five persons arrayed as accused in the complaint. Cognizance of the offences under Section 498A/34, IPC and under Sections 4 and 6 of Dowry Prohibition Act is taken up. Complaint is directed to take steps by 17.7.1995 for summoning the accused persons and to file list of prosecution witnesses. Call on 17.7.1995 for steps as aforesaid."
17. According to provision in Section 204, Cr.P.C. if in the opinion of the cognizance-taking Magistrate there is sufficient ground for proceeding, then only he may issue the process. In that context, sufficient ground means existence of a prima facie case. Existence of prima facie case means there must be some allegation and ex parte evidence to satisfy the ingredients of the offence complained of against that particular offender to whom the Magistrate decides to issue process. As has been stated above, there is total absence of proof of allegation against the petitioner Nos. 4 and 5. It is thus found that without due application of mind to the materials available in the record, learned lower Court has mechanically passed the impugned order though prima facie there is no material to substantiate the accusation against the petitioners 4 and 5. Under the given circumstance, if the impugned order directing issue of process against petitioner Nos. 4 and 5 shall be allowed to continue, then not only it will be an abuse of the process of law, but also it will be a harassment to the petitioner Nos. 4 and 5. Under such circumstance, the impugned order is quashed with respect to petitioner Nos. 4 and 5, namely, Uttam Maitra and Champa Maitra who are accused Nos. 4 and 5 in the lower Court. But the order is allowed to continue as against the petitioner Nos. 1 to 3, who are the accused Nos. 1 to 3 in the lower Court.
18. The Criminal Misc. case is allowed in part.