Orissa High Court
Sailabala Panigrahy And Another vs Sarmistha Panigrahi on 28 August, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 118 Of 2005
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.41 of 2004
pending on the file of J.M.F.C., Aska, Ganjam.
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Sailabala Panigrahy
and another ......... Petitioners
-Versus-
Sarmistha Panigrahi ......... Opposite party
For Petitioners: - Mr. Debi Prasad Dhal
For Opp. Party - Mr. Anirudha Das
CRLMC No. 34 Of 2005
Sailabala Panigrahy ......... Petitioner
-Versus-
Sarmistha Panigrahy ......... Opposite party
For Petitioner: - Mr. Debi Prasad Dhal
For Opp. Party - Mr. Anirudha Das
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 28.08.2017
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2
S. K. SAHOO, J.In CRLMC No.118 of 2005, the petitioners Sailabala Panigrahy and Sajani @ Sarojini Swain have challenged the impugned order dated 24.09.2004 passed by the learned J.M.F.C., Aska, Ganjam in I.C.C. Case No.41 of 2004 in taking cognizance of the offences under sections 454/380/294/323/506/34 of the Indian Penal Code and issuance of process against them.
In CRLMC No. 34 of 2005, the petitioner Sailabala Panigrahy has challenged the impugned order dated 18.12.2004 passed by the learned J.M.F.C., Aska in the very same proceeding in rejecting her petition under section 205 Cr.P.C.
Since both CRLMC applications under section 482 of Cr.P.C. arise out of the same case, with the consent of learned counsel for both the parties, the applications were heard analogously and disposed of by this common judgment.
It appears that on the basis of the complaint petition filed by the opposite party Sarmistha Panigrahi before the learned J.M.F.C., Aska, I.C.C. Case No.57 of 2003 was registered and the complaint petition was forwarded to the Inspector in charge of Aska police station under section 156(3) of Cr.P.C., in pursuance of which Aska P.S. Case No.223 of 2003 was registered on 28.10.2003 under sections 3 454/380/294/323/506/34 of the Indian Penal Code against the petitioners Sailabala Panigrahy and Sajani @ Sarojini Swain.
After completion of investigation, the Investigating Officer submitted final report on 11.11.2003 indicating therein that it is a false case. After receipt of such final report, the opposite party on being noticed filed a protest petition and it was registered as I.C.C. Case No.41 of 2004. The initial statement of the complainant under section 200 Cr.P.C. was recorded and during course of inquiry under section 202 Cr.P.C., the complainant examined two witnesses Smt. Sailabala Padhy and T. Nirmal Kumar Patra. After perusing the complaint petition, initial statement and the statements of the two witnesses, the learned J.M.F.C., Aska has been pleased to pass the impugned order dated 24.09.2004.
Learned counsel for the petitioners Mr. D.P. Dhal while challenging the impugned order of taking cognizance contended that the parties are related to each other and there was civil dispute between the parties and a civil suit was also filed relating to dispute of property and in the meantime, the civil dispute has already been decided and two appeals have been preferred before this Court which have been numbered as RFA Nos.41 of 2011 and 42 of 2011. Learned counsel for the 4 petitioners further submitted that the dispute between the parties is basically civil in nature which has been given a colour of criminal case and instituted with an oblique motive to harass the petitioners and therefore, the proceeding should be quashed.
Mr. Anirudha Das, learned counsel for the opposite party while not disputing the relationship between the parties contended that the ingredients of the offences are clearly made out and therefore, it is not a fit case to invoke the inherent power under section 482 of Cr.P.C. to quash the impugned order.
On the last occasion, on the submission of both the parties that they wanted to take instruction regarding possibility of amicable settlement between the parties, the case was adjourned and today the learned counsels for both the parties submit that the parties are now staying out of India for years together for which it is difficult on their part to obtain instruction from them now though they had the earlier instruction that the complainant was not interested to proceed with the case.
Considering the submission of learned counsel for the petitioners and after going through the averments made in the complaint petition, the initial statements and the statements recorded under section 202 of Cr.P.C. and also going through the 5 final report submitted by police, it appears that the parties are related to each other and there was property dispute between the parties for which the case has been filed. Since the nature of accusation in the case is basically civil in nature which prima facie appears to have been given the colour of a criminal case, I am of the view that no useful purpose would be served in allowing the proceeding to continue before the learned trial Court.
Accordingly, to prevent abuse of process of the Court and to cure a gross miscarriage of justice, invoking my inherent power, I am inclined to quash the impugned order dated 24.09.2004 passed by the learned J.M.F.C., Aska in I.C.C. Case No.41 of 2004 and also the entire criminal proceeding in the said case and therefore, the CRLMC No.118 of 2005 is allowed.
In view of the fact that I have already quashed the complaint case proceeding, CRLMC No.34 of 2005 has become infructuous and accordingly disposed of.
In the result, CRLMC No.118 of 2005 is allowed and CRLMC No.34 of 2005 is disposed of as infructuous.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 28th August, 2017/Pravakar