Orissa High Court
Mamta Tripathy And vs State Of Orissa on 8 July, 2019
Equivalent citations: AIRONLINE 2019 ORI 112
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 3231 Of 2017
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with C.T. Case No.3728 of 2016
pending on the file of S.D.J.M., Bhubaneswar.
-----------------------------
Mamta Tripathy and
another ....... Petitioners
-Versus-
State of Orissa
and others ....... Opposite parties
For Petitioners: - Mr. Bijoy Anand Mahanti
(Senior Advocate)
Mr. B.B. Mishra, P.RK. Patro
For Opp. Parties: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
-----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Hearing: 25.06.2019 Date of Judgment: 08.07.2019
---------------------------------------------------------------------------------------------------
S. K. SAHOO, J. Petitioners Mamta Tripathi and Bharat Bhusan Sethi
have filed this application under section 482 of the Code of
Criminal Procedure challenging the impugned order dated
11.07.2017 passed by the learned S.D.J.M., Bhubaneswar in C.T.
2
Case No.3728 of 2016 in taking cognizance of offences under
sections 341, 342, 323, 294, 504, 506 read with section 34 of
the Indian Penal Code and issuance of process against them. The
said case arises out of Chandrasekharpur P.S. Case No.349 of
2016.
2. On 22.08.2016, one G.S. Rath, President, The Arcon
Retreat Owners' Welfare Association (hereafter in short
'Association') lodged the first information report before the
Inspector in charge of Chandrasekharpur police station alleging
therein that on 21.08.2016 while the General Body Meeting of
the Association, which is a registered body was going on in the
community hall of the Society under the Presidentship of the
informant and in presence of the Secretary, Treasurer and other
members and also the staff of the Association, at the final phase,
the petitioner no.1 Mamta Tripathi started speaking in a louder
tone with aggressiveness accusing one Tusar Behera. When the
Secretary of the Association namely Padmanav Sahoo tried to
intervene, the petitioner no.2 Bharat Bhusan Sethi, who is the
husband of the petitioner no.1 rose from his seat and shouted to
Sri Tusar Behera as well as the Secretary Sri Sahoo and
threatened them with dire consequence challenging the decisions
taken by the previous as well as present Managing Committee.
3
In spite of the request of the informant to both the petitioners to
remain seated and to calm down, there was no effect, for which
the informant adjourned the meeting and requested the
members to disperse. The petitioner no.1 was shouting and
creating nuisances in the hall accusing some other members
using filthy languages and bolted the door of the hall from inside
and stood at the exit gate. The petitioner no.2 also exhibited
similar attitude and both the petitioners did not allow anybody to
come out of the hall even though the informant requested the
petitioners to allow him and others to go out of the hall. The
petitioner no.1 obstructed them and told that she would not
open the door and allow anybody to go out unless the matter is
sorted out. The petitioner no.1 also became more furious and
rushed towards the informant and pushed him. It is further
alleged that the petitioners also indulged in similar type of
activities in the past abusing the previous President and
Secretary of the Association and disturbing the meeting. It is
stated that both the petitioners prevented the informant, the
Secretary and the Treasurer of the Association to discharge their
responsibilities by exhibiting uncivilized conduct.
On the basis of such first information report,
Chandrasekharpur P.S. No. 349 of 2016 was instituted under
4
sections 341, 342, 323, 294, 504, 506 read with section 34 of
the Indian Penal Code against the two petitioners. During course
of investigation, the Investigating Officer Shri H.K. Pradhan, S.I.
of police, Chandrasekharpur Police Station visited the spot,
examined the informant and other witnesses and recorded their
statements, searched for the petitioners in the locality and
ascertained that the petitioner no.1 is a lawyer and the petitioner
no.2 is a high rank officer in Para military force and on
completion of investigation, after receipt of the order from Addl.
D.C.P., Bhubaneswar UPD, charge sheet was submitted on
26.04.2017 against the petitioners under sections 341, 342, 323,
294, 504, 506 read with section 34 of the Indian Penal Code
showing them as 'not arrested', on receipt of which the learned
S.D.J.M., Bhubaneswar passed the impugned order.
3. Mr. Bijoy Anand Mahanti, learned Senior Advocate
appearing for the petitioners challenging the impugned order
contended that the investigation has been conducted in a
perfunctory manner and without examining the petitioners and
recording their statements, charge sheet has been submitted. It
is further stated that since during course of investigation, the
mandate of section 41-A of Cr.P.C. has not been followed and
notice of appearance has not been issued to the petitioners,
5
which all the actions taken by the police as well as the Court
becomes null and void and liable to be quashed in view of the
decision of the Hon'ble Supreme Court in case of Arnesh Kumar
-Vrs.- State of Bihar reported in (2014) 58 Orissa Criminal
Reports (SC) 999 which was followed by a single Judge of
Patna High Court in case of Gauri Shankar Roy -Vrs.- State of
Bihar reported in 2015 (22) R.C.R (Criminal) 495 and a
Division Bench of Delhi High Court in case of Amandeep Singh
Johar -Vrs.- State of N.C.T. reported in 2018 (2) Crimes
601. It is further submitted that the entire dispute between the
parties emanates from illegal and arbitrary usurpation of power
by a group of people who fraudulently registered the Association
under the Societies Registration Act, 1860 as a cultural and
charitable society though they are in fact running the same as
Apartment Owners' Society, which is mandatorily registerable
under the Odisha Apartment Ownership Act, 1982 which was
subsequently amended in 2015. It is further submitted that there
has been delay in lodging the F.I.R. and the ingredients of the
offences under which the charge sheet has been submitted are
not attracted and there was civil litigation between the parties
for which the first information report was lodged and since the
criminal proceeding has been instituted maliciously, therefore,
6
invoking the inherent powers of this Court under section 482 of
Cr.P.C., the impugned order and the entire criminal proceeding
in C.T. Case No.3728 of 2016 should be quashed.
Mr. Priyabrata Tripathy, learned Addl. Standing
Counsel on the other hand produced the case diary and placed
the first information report as well as statements of the
witnesses and contended that at the stage of taking cognizance,
neither the cognizance taking Magistrate nor this Court should
consider the defence plea which is the duty of the trial Court at
the appropriate stage. It is further contended that the charge
sheet itself reveals that both the petitioners were remaining
present in their respective offices and therefore, taking into
account the nature of accusation and the background of the
case, the petitioners were shown as 'not arrested' in the charge
sheet and therefore, non-issuance of appearance notice under
section 41-A of Cr.P.C. cannot be a ground to quash the entire
criminal proceeding against the petitioners particularly when
prima facie case is well made out.
4. In the case of Arnesh Kumar (supra), the Hon'ble
Supreme Court after discussing sections 41 and 41-A of the
Cr.P.C. has held, inter alia, that notice of appearance in terms of
section 41-A of Cr.P.C. be served on the accused within two
7
weeks from the date of institution of the case, which may be
extended by the Superintendent of Police of the District for the
reasons to be recorded in writing and failure to comply with the
directions aforesaid, shall apart from rendering the police officers
concerned liable for departmental action, they shall also be liable
to be punished for contempt of Court to be instituted before High
Court having territorial jurisdiction. The Hon'ble Court held that
the directions issued shall not only apply to the cases under
section 498-A of the Indian Penal Code or section 4 of the Dowry
Prohibition Act, but also to such cases where offence is
punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years; whether with
or without fine. In the case of Gauri Shankar Roy (supra), it is
held that in case the police officer decides not to arrest, he has
to record the reasons to that effect and thereafter, he is
mandatorily required to issue notice to the person concerned
under section 41-A(1). The use of word 'shall' in section 41-A(1)
of the Code reflects that the provision is mandatory in nature. In
the case of Amandeep Singh Johar (supra), some procedure
were laid down keeping in view the provision under section 41-A
of the Cr.P.C. and it was directed that the procedure shall be
mandatorily followed by the Delhi police.
8
There is no dispute that the offences under which
charge sheet has been submitted, except for the Part II of
section 506 of the Indian Penal Code, punishment prescribed is
lesser than seven years. So far as Part II of 506 of the Indian
Penal Code is concerned, the punishment may extend to seven
years, or with fine, or with both. Therefore, section 41-A of
Cr.P.C. is squarely applicable and if the police officer feels that
the arrest of a person is not required, not only he has to record
the reasons in writing for not making the arrest in view of the
proviso to section 41(1)(b) of the Code but also he has to issue
notice of appearance as mentioned in section 41-A of the Code.
In the present case, no notice of appearance under section 41-A
of the Code has been issued to the petitioners and it is only
mentioned that both the petitioners are remaining present in
their respective offices.
The question that arises for consideration in this case
is whether for non-compliance of the provision under section 41-
A of the Code, the entire criminal proceeding against the
petitioners should be quashed. The purpose behind introduction
of section 41-A of the Code is to avoid unnecessary arrest or
threat of arrest looming large on accused. The Hon'ble Supreme
Court in case of Arnesh Kumar (supra) considering such
9
provision of the Code issued certain directions to ensure that
police officers do not arrest the accused unnecessarily and the
Magistrates do not authorize detention casually and
mechanically. In none of the three decisions placed by the
learned counsel for the petitioners, it is held that for non-
compliance of the provision under section 41-A of the Code, the
entire criminal proceeding against an accused is to be quashed.
Section 465 of the Code prescribes that subject to
the provisions hereinbefore contained, no finding, sentence or
order passed by a Court of competent jurisdiction shall be
reversed or altered by a Court of appeal, confirmation or revision
on account of any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or other
proceedings under this Code, or any error, or irregularity in any
sanction for the prosecution, unless in the opinion of that Court,
a failure of justice has in fact been occasioned thereby. In case
of H.M. Rishbud -Vrs.- State of Delhi reported in A.I.R.
1955 S.C. 196, it is held that a defect or illegality in
investigation, however serious, has no direct bearing on the
competence or the procedure relating to cognizance or trial. In
case of Union of India -Vrs.- T.Nathamuni reported in
10
(2014) 16 Supreme Court Cases 285, it is held (para-13)
that invalidity of the investigation does not vitiate the result
unless a miscarriage of justice has been caused thereby. In case
of R.A.H. Siguran -Vrs.- Shankare Gowda reported in
(2017) 16 Supreme Court Cases 126, it is held that the High
Court was not justified in quashing the proceedings merely on
the ground that the investigation was not valid. In case of Dr.
Krishna Pal -Vrs.- State of U.P. reported in 1996 Criminal
Law Journal 1134 (SC), it is held that it would not be proper
to acquit the accused in case of defective investigation, if the
case is otherwise established conclusively as it would tantamount
to be falling in the hands of an erring investigating officer. In
case of Paras Yadav -Vrs.- State of Bihar reported in 1999
Supreme Court Cases (Criminal) 104, it is held that lapses on
the part of the investigating officer should not be taken in favour
of the accused.
It is no doubt true that after receipt of the notice of
appearance, if an accused appears before the investigating
officer and his statement is recorded by the police and he
cooperates with the investigation, it would be helpful for the
investigating agency in intelligently scrutinizing and testing the
probabilities, truthfulness, genuineness or otherwise
11
dependability of the accusation leveled against such accused so
that a correct picture relating to the occurrence can be
ascertained. I am of the humble view that though non-
compliance of the provision under section 41-A of Cr.P.C. by an
investigating officer can be a ground for initiating proceedings
against him as contemplated in case of Arnesh Kumar (supra)
but that by itself would not justify in quashing the entire criminal
proceeding against the accused concerned otherwise lapses on
the part of the investigating officer would be a paradise for the
criminals.
Therefore, I am not inclined to accept the contention
raised by the learned counsel for the petitioners to quash the
criminal proceeding for non-compliance of the provision under
section 41-A of the Code.
5. Coming to the contentions raised by the learned
counsel for the petitioners that on account of delay in lodging the
F.I.R., the criminal proceeding should be quashed, I find that the
occurrence in question stated to have taken place on 21.08.2016
(time not noted) and the F.I.R. was lodged on 22.08.2016 at
about 12.45 p.m. and therefore, it cannot be said that there was
any such inordinate delay in lodging the report. In a criminal
case, where there is delay in lodging the F.I.R., the informant
12
can get chance during investigation as well as during trial to
explain the delay aspects. There may be variety of reasons for
an informant to lodge a report at a belated stage relating to the
commission of a crime. Whether such explanation would be
acceptable or not, is the duty of the trial Court at the appropriate
stage. No time limit is fixed for lodging an F.I.R. particularly
when the offence is punishable with imprisonment for seven
years as in the present case. At the stage of taking cognizance or
even at the stage of framing of charge, delayed lodging of the
F.I.R. cannot be a ground to quash the criminal proceeding.
6. It is not disputed by the learned counsel for the
respective parties that civil litigations are pending between the
parties prior to the date of occurrence. The petitioner no.1 has
filed a civil suit bearing C.S. No.7846 of 2015 which is stated to
be pending in the Civil Court at Bhubaneswar. The petitioner
no.1 has filed another case vide FAO No.28 of 2016 in the Court
of learned Addl. District Judge, Bhubaneswar. In the case of
Kamaladevi Agarwal -Vrs.- State of West Bengal reported
in A.I.R. 2001 S.C. 3846, it is held that criminal cases have to
be proceeded with in accordance with the procedure as
prescribed under the Code of Criminal Procedure and the
pendency of a civil action in a different court even though higher
13
in status and authority, cannot be made a basis for quashing of
the proceedings. It appears that relating to some previous
dispute between the parties, remedy as available under the civil
law has been resorted to, however, since the accusation leveled
in the criminal case took place on 21.08.2016, no fault or
illegality can be found with institution of the criminal case.
7. Charge sheet has been submitted under section 294
of the Indian Penal Code. The offence prescribes punishment for
doing any obscene act in any public place or singing, reciting or
uttering any obscene songs, ballad or words, in or near any
public place to the annoyance of others. According to New
Standard Dictionary (L.D. Wagnalls), 'obscene' means offensive
to chastity, delicacy or decency. According to Black's Law
Dictionary, 'obscenity' means character or quality of being
obscene, conduct, tending to corrupt the public merely by its
indecency or lewdness. According to Webster's New International
Dictionary, word 'obscene' means disgusting to the senses,
usually because of some filthy grotesque or unnatural quality,
grossly repugnant to the generally accepted notions of what is
appropriate. Verbal abuse is a pattern of behaviour that can
seriously interfere with one's positive emotional development
and even can lead to significant detriment to one's self-esteem,
14
emotional well-being, and physical state. To understand what
verbal abuse is, the Court must dig a little deeper into the signs,
symptoms, and effects of verbal abuse in different situations, in
different contexts and on different people. Just by saying that
the accused hurled abusive words without stating anything
regarding nature of obscenity and its effect on others would not
be sufficient. Except the statements of the witnesses that the
petitioners abused the informant and others, there is nothing on
record to show the nature of abusive words hurled or that it
caused annoyance to the members of the public. Thus, the
ingredients of the offence under section 294 of the Indian Penal
Code are not attracted.
Charge sheet has also been submitted under section
506 of the Indian Penal Code which deals with punishment for
'criminal intimidation' which is defined under section 503 of the
Indian Penal Code. Threatening a person with any injury to his
person, reputation or property or to the person or reputation of
anyone in whom that person is interested is called 'criminal
intimidation'. Similarly threatening a person with intention to
cause alarm to that person, or to cause the person to do any act
which is not legally bound to do, or to omit to do any act which
that person is legally entitled to do, as the means of avoiding the
15
execution of such threat is called 'criminal intimidation'. If threat
is given to cause death or grievous hurt, or to cause the
destruction of any property by fire, or to cause an offence
punishable with death or with imprisonment for life, or with
imprisonment for a term which may extend to seven years or to
impute unchastity to a woman, Part-II of section 506 of the
Indian Penal Code would be attracted. Mere statement that the
petitioners threatened the informant and others without any
specific materials to show the nature of threat is not sufficient to
attract the ingredients of the offence. Sometimes many words
are uttered by a person during sudden quarrel in the heat of the
moment unpremeditated. The threat should be a real one and
not just mere words when the person uttering it does not exactly
mean what he says and also when the person at whom threat is
launched, does not feel threatened actually. Therefore, I am of
the view that the ingredients of the offence under section 506 of
the Indian Penal Code are not attracted.
Coming to section 504 of the Indian Penal Code, it
requires that there must be intentional insult so as to give
provocation to the person insulted with further intention that
such provocation would cause, or knowledge that it is likely to
cause, the person so insulted to break the public place, or to
16
commit any other offence. In the case in hand, the prosecution
case is that during the general body meeting, the petitioners
raised their grievances in a forceful manner regarding the
decisions taken by the previous as well as present Managing
Committee and blamed one Tusar Behera which was opposed to
by the informant and others. It cannot be prima facie said that
the conduct of the petitioners was to give intentional insult to
anyone so as to create any provocation in him. Everybody has a
way of presenting a thing before others. The way of presentation
of the grievances might not be appealing to the informant and
some others but that by itself would not attract the ingredients
of offence under section 504 of the Indian Penal Code.
Section 341 of the Indian Penal Code prescribes
punishment for 'wrongful restraint' which is defined under
section 339 of the Indian Penal Code and section 342 of the
Indian Penal Code prescribes punishment for 'wrongful
confinement' which is defined under section 340 of the Indian
Penal Code. The statements of the witnesses indicate that when
the meeting was adjourned, the petitioner no.1 bolted the door
of the hall from inside and stood at the exit gate and told that
she would not open the door and allow anybody to go out unless
the matter is sorted out. It seems that when the grievances of
17
the petitioners were not attended to and the President adjourned
the meeting, the petitioner no.1 wanted the matter to be sorted
out and that was probably her reaction in closing the gate so
that the meeting could resume once again. The requisite mens
rea for committing the alleged offences as described under
sections 339 and 340 of the Indian Penal Code are lacking in the
case and therefore, I am of the view that the ingredients of the
offences under sections 341 and 342 of the Indian Penal Code
are not attracted.
Section 323 of the Indian Penal Code deals with
punishment for voluntarily causing hurt, which is defined under
section 321 of the Indian Penal Code. Even though the informant
has mentioned in the F.I.R. that the petitioner no.2 rushed
towards him and pushed him physically but most of the
witnesses who were stated to be present in that meeting have
not stated anything about such physical push given by the
petitioner no.2 to the informant. Only when bodily pain, disease
or infirmity is caused to any person, whosoever causes the same
can be said to have caused 'hurt' in view of the definition
provided under section 319 of the Indian Penal Code. In absence
of any cogent material relating to causing hurt to the informant
and that to 'voluntarily' as defined under section 319 of the
18
Indian Penal Code, it cannot be said that the ingredients of the
offence under section 323 of the Indian Penal Code are attracted.
8. The inherent powers possessed by the High Court
under section 482 of the Code requires great caution in its
exercise and should not be exercised to stifle a legitimate
prosecution. If the allegations do not constitute the offences of
which cognizance has been taken by the Magistrate, it is open to
the High Court to quash the same in exercise of the inherent
powers under section 482 of the Code.
9. In view of the foregoing discussions, I am of the
humble view that the continuance of the criminal proceeding
against the petitioners would be an abuse of process and
therefore, for the ends of justice, I am inclined to accept the
prayer made by the petitioners in this application under section
482 of the Code.
Accordingly, the impugned order dated 11.07.2017
passed by the learned S.D.J.M., Bhubaneswar in C.T. Case
No.3728 of 2016 and the entire criminal proceeding in the said
case stands quashed.
The CRLMC application is allowed.
..................................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 08th July 2019/Sisir