Orissa High Court
(1) Nagen Kumar Barik vs (1) State Of Orissa on 29 June, 2020
Equivalent citations: AIRONLINE 2020 ORI 209
Author: B.P. Routray
Bench: B.P. Routray
HIGH COURT OF ORISSA: CUTTACK.
CRLMC No. 1617 of 2008
An application under Section 482 Cr.P.C. for quashing the proceedings
in G.R. Case No. 1367 of 2008, arising out of Sahidnagar P.S. Case No.
133 of 2008, pending in the court of the learned S.D.J.M,
Bhubaneswar.
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(1) Nagen Kumar Barik
(2) Santosh Kumar Barik ...... Petitioners.
-Versus-
(1) State of Orissa
(2) Smt. Kamala Chhotray ...... Opp. Parties.
For Petitioners : Mr. D.P. Dhal, Sr. Advocate &
Mr. S.K. Dash, Advocate.
For Opp. Parties : Mr. B.R. Mohanty, Advocate. (for O.P. 2)
PRESENT:
THE HONOURABLE SHRI JUSTICE B.P. ROUTRAY
Date of Hearing: 22.11.2019 : Date of Judgment : 29.06.2020
B.P. ROUTRAY, J. Invoking the jurisdiction under Section 482 of the
Cr.P.C., petitioners have prayed for quashing the criminal
proceedings against them in G.R. Case No. 1367 of 2008, arising out
of Sahidnagar P.S. Case No. 133 of 2008, pending in the court of the
learned S.D.J.M, Bhubaneswar.
2. The facts giving rise to this petition in brief is that the
present opposite party No.2, namely, Smt. Kamala Chhotaray, filed 1CC
No. 785 of 2008 in the court of learned S.D.J.M., Bhubaneswar
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alleging offences under Sections 447/427/323/294/354/506/34 of
IPC.
3. It is stated by the complainant (O.P. No.2 herein) that she
along with her father in law and other family members are residing in
the house situated over plot Nos. 492, 493, 495, 496 and 497/2197
of Mouza Govindaprasad under Sahidnagar Police Station,
Bhubaneswar. On the occurrence date i.e., on 22.01.2008 at about
10.00 P.M. the son of the complainant, namely, one Tarini Chhotray
when went to Bari to attend call of nature, he noticed that petitioner
No.1 was demolishing their northern side compound wall by using
Dozer Machine. When the son of the complainant protested petitioner
No.1, he gave kick blow to him resulting injury on his mouth and
nose and then, when the complainant went to the spot, both the
petitioners tried to outrage her modesty by pulling her saree and also
abused her in filthy words with intimidation to rape. It is also stated
by the complainant that though she reported the matter before the
Sahidnagar P.S. but as no action was taken, she filed the aforesaid
complaint petition. Upon receipt of the complaint petition, the
learned S.D.J.M. directed the OIC, Sahid Nagar P.S. to register the
same, investigate and to report. Accordingly, Sahid Nagar P.S. Case
No. 133 dated 30.03.2008 has been registered giving rise to
aforementioned G.R. Case against the petitioners.
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4. While praying for quashing the said criminal proceedings,
it is contended by the petitioners that O.P. No.2-complainant has
foisted a false case against them giving color to the civil disputes to a
criminal look. As per their contentions, there were civil disputes
between both the parties and further so far as the present dispute is
concerned, it was also essentially civil in nature but has been cloaked
to a criminal case on the basis of various false and mala fide
allegations. It is submitted that the petitioner No.1 is the purchaser
of Ac.0.60 dec. of land out of total Ac.0.076 dec. in plot No. 493 in the
year 2004-05 from the original owner and the father-in-law of the
complainant, who has physically encroached a piece of Govt. land
adjoining to plot No. 493 had also unauthorizedly encroached upon
the land purchased by the petitioner No.1 from plot No. 493 and
trying his best to grab the same by using all possible means. There
were earlier disputes between the parties and two Civil Suits i.e., C.S.
No. 58/6 of 2004-03 and C.S. No. 197/2007 filed by the father in law
of the complainant against the father of petitioner No.1 and petitioner
No.1 respectively, have been decreed in favour of the petitioners
against the father in law of the complainant. Further, a proceeding at
the instance of the petitioner No.1 under Section 107 of the Cr.P.C.
was also initiated against the family members of the complainant and
in the said proceeding, the complainant's family members have
executed the bond in order to keep peace in the locality. Thus,
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without finding any other way, they resorted to foist this false
criminal case against the petitioners with mala fide intention to
satisfy their ill will in order to grab the property.
5. In support of the said civil disputes as well as criminal
proceedings under Section 107 of Cr.P.C., the orders of the respective
courts have been filed by the petitioners by way of further affidavit
dated 13.8.2019. It is further noticed that, at the instance of the
petitioner, a criminal case has been registered against the father in
law of the complainant vide Sahid Nagar P.S. Cae No. 267 dated
23.06.2008 for commission of offence under Sections
427/294/506/34 of IPC.
6. It is worthwhile to mention here that the investigation in
the aforementioned G.R.Case No. 1367 of 2008 is still continuing and
no report has yet been submitted by the Police, as per the report of
the learned S.D.J.M., Bhubaneswar. It is also submitted by the
learned State Counsel in course of hearing that the investigation
report has not been submitted by the police in the said case yet.
7. Upon close perusal of the documents filed on behalf of the
petitioners, it reveals that one Manasi Usha Das and others were the
recorded owner of plot No. 493 measuring Ac.0.076 dec. and the
petitioner No.1 became the recorded owner of Ac.0.040 dec. in plot
No. 493/3715, 493/3901 and Ac.0.010 dec. in plot No.
511/1623/3716. It is also seen that Purna Chandra Chhotray, the
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father in law of the complainant has admitted in I.A. No. 161/2007
(arising out of C.S. No. 197/2007) that, petitioner No.1 purch-
ased Ac.0.050 decimals from one Manasi Usha Das, who was the
original owner of plot No. 493. Therefore, contention of the
petitioners is strengthened with regard to the fact that the petitioner
No.1 is the recorded owner of part of plot No. 493. It is further seen
that the demarcation of the land in question has been made on
18.04.2008.
8. The allegations made in the complaint petition reveal that
the all the offences are non-serious in nature and mostly arising out
of the demolition of boundary wall. Moreover, the son of the
complainant, namely, Tarini Chhotray, who is one of the prime victim
as per allegations, has not been named as a witness in the complaint
petition.The nature of injury alleged to have sustained by said Tarini
has not been mentioned in the petition. Though it has been stated
that he was taken to hospital, but the nature of treatment undergone
has not been mentioned. The complaint petition is presented on
12.02.2008 when the date of occurrence is alleged on 22.01.2008. It
is though stated that a copy of the report has been sent to the
Superitendent of Police, Khurda by registered post but no
acknowledgement receipt was submitted alongwith the complaint
petition. Thus in view of presence of civil disputes between the
parties, the allegations prima facie appears malicious in nature
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against the petitioners. Moreover, the other aspect of the case is that
the investigation has not been completed yet, though in the mean-
time about 12 years have passed. What is required to be taken note
here that, the criminal investigation if not completed after 12 years,
then it can safely be opined that the process would definitely be an
undue harassment to the alleged accused persons and there would be
violation of their fundamental right so also it would be abuse of
process of the justice delivery system. There is catena of decisions
pronounced by the Hon'ble Apex Court in this regard.
9. In the case of State of Haryana & Ors. Vs. Bhajan Lal &
Ors., reported in (1992) Supp. (1) SCC 335, the Apex Court has
enumerated certain principles where the High Court can exercise its
inherent power in quashing such malicious proceeding instituted with
an ulterior motive for wreaking vengeance on the accused. In
paragraphs 102 of the report, the Court has held as under :
"102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and reproduced above,
we give the following categories of cases by way of illustration wherein
such power could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose
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a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out
a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
(Emphasis added).
10. In the case of Vakil Prasad Singh Vs. State of Bihar,
reported in (2009) 3 SCC 355, the Apex Court, upon analyzing
number of earlier decisions, has held as under:
"24. It is, therefore, well settled that the right to speedy trial in all
criminal persecutions (sic prosecutions) is an inalienable right under
Article 21 of the Constitution. This right is applicable not only to the
actual proceedings in court but also includes within its sweep the
preceding police investigations as well. The right to speedy trial
extends equally to all criminal prosecutions and is not confined to
any particular category of cases. In every case, where the right to
speedy trial is alleged to have been infringed, the court has to
perform the balancing act upon taking into consideration all the
attendant circumstances, enumerated above, and determine in each
case whether the right to speedy trial has been denied in a given
case.
25. Where the court comes to the conclusion that the right to speedy
trial of an accused has been infringed, the charges or the conviction, as
the case may be, may be quashed unless the court feels that having
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regard to the nature of offence and other relevant circumstances,
quashing of proceedings may not be in the interest of justice. In such a
situation, it is open to the court to make an appropriate order as it
may deem just and equitable including fixation of time-frame for
conclusion of trial."
11. Upon close analysis of the entire facts situation of the
present case, considering the nature of offences alleged against the
petitioners, and in view of the principles of law enunciated by the
Apex Court in the aforesaid cases, I have no hesitation to held that
further continuance of the aforesaid proceedings in G.R. Case No.
1367 of 2008, arising out of Sahid Nagar P.S. Case No. 133 of 2008,
pending in the court of the learned S.D.J.M, Bhubaneswar would be
an abuse of the process against the petitioners and thus the same is
liable to quashed in the ends of justice, and accordingly the same is
quashed.
The CRLMC is allowed accordingly.
...........................
B.P. Routray, J.
Orissa High Court, Cuttack, Dated, the 29th day of June, 2020/A.Dash