Orissa High Court
Kanhu Behera vs State Of Orissa on 4 May, 2005
Equivalent citations: 2005(II)OLR386
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. This application under Section 482 of the Code of Criminal Procedure has been filed challenging the order dated 12.6.2003 passed by the "learned J.M.F.C., Narasinghpur in G.R.Case No. 3 of 2003 taking cognizance of the offences under Sections 498-A, 304-B, 302, 201/34, IPC and Section 4 of the D.P.Act.
2. Basing on an FIR lodged by one Basanta Kumar Pradhan, Kanpur P.S.Case No. 2 of 2003 was registered, investigation was conducted and charge-sheet was submitted for the offence under Sections 498-A, 304-B, 302, 201/34, IPC and Section 4 of the D.P.Act. Learned J.M.F.C., Narasinghpur after perusing the materials produced by the prosecution, took cognizance of the above noted offences and directed issue of process against the accused persons including the petitioner. Aggrieved, the petitioner has filed this application for quashing the order of cognizance dated 12.6.2003.
3. Mr. S. N. Mohapatra, learned counsel appearing for the petitioner submits that the petitioner is in no way connected with the alleged offence and that the materials in the case diary do not reveal any case against him and for that reason, the impugned order of cognizance is unsustainable.
4. Mr. Choudhury, learned Addl. Standing Counsel appearing for the State, on the other hand, submits that the FIR as well as in the statement of the informant and witnesses, reveal a clear prima facie case for the alleged offences and also show the complicity of the petitioner in those offences and so the order of cognizance is sustainable and can't be quashed.
5. It has already been settled in the case of Debendranath Padi v. State of Orissa, (2005) OCR 79 that while considering the matter of cognizance, the concerned Court need not sift the evidence produced by the prosecution in a threadbare manner as is done in the final disposal of the case and that such Court is required only to find out if on accepting the materials produced by the prosecution in its entirety, prima facie case for the alleged offence is revealed. It has also been settled that the defence plea and the evidence produced by the accused are not to be considered in any way at the stage of cognizance. Learned Addl. Standing Counsel also concedes that except vague allegations in the FIR, there is nothing against the present petitioner and so, technically no prima facie case has been made out against the petitioner.
6. Learned Addl. Standing Counsel raises objection to the exercise of power of the Court under Section 482, Cr.P.C. on the plea that some of the offences alleged are non-compoundable in nature and such offences can't be scrapped with Section 482, Cr.P.C. as it would tantamount to bypass the statutory provision of Section 320, Cr.P.C. The answer to the objection of the learned Addl. Standing Counsel is available in the case of B.S. Joshi and Ors. v. State of Haryana and Ors. 2003 (II) OLR (SC) 101 : (2003) 25 OCR (SC) 99, wherein the Apex Court observed that quashing of the cognizance in respect of non-compoundable offences by the High Court is permissible in appropriate cases. The Apex Court have clearly observed that in exercise of jurisdiction under Section 482, Cr.P.C., the High Court can quash the proceeding where the parties approach for compounding the offence even in a non-compoundable offence as in such situation, chances of conviction becomes bleak. In the case of Sridhar Pani v. State of Orissa and Anr., 2003 (II) OLR 238 : (2003) 25 OCR 447, this Court has also taken the similar view. So, there is no doubt that inherent power under Section 482, Cr.P.C. can be invoked to quash the order of cognizance involving non-compoundable offences.
7. In the present case perusal of the case diary reveals that the petitioner is the uncle-in-law of the deceased and the only allegation against him in the FIR is that he alongwith other family members demanded additional dowry of Rs. 5,000/-. Except this allegation, there is no other evidence against him. None of the witnesses except the informant has even taken the name of the petitioner in their statements before the I.O. Since there is no prima facie case against the petitioner for the alleged offences and the principal accused persons have already been acquitted after a full-fledged trial, continuance of the criminal proceeding against the petitioner would be undoubtedly abuse of the process of the Court as in the present facts and circumstances of the case, the chance of conviction of the petitioner is totally bleak.
8. For the aforesaid reasons, the impugned order of cognizance dated 12.6.2003 passed by the learned JMFC, Narasinghpur in G.R.Case No. 3 of 2003 against the petitioner is quashed. The CRLMC is allowed.