The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4005 of 2016 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) Sipa Pany @ Jyotirmayee Panda and others ……. Petitioners -Versus- Itishree Panda @ Pany ……. Opposite Party For the Petitioners : Mr. Debashis Panda, Advocate For the Opp. Party : None CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 05.11.2024 : Date of Judgment: 23.12.2024 S.S. Mishra, J. 1. The petitioners No.1 & 3 are the sister-in-laws whereas the petitioner No.2 is the brother-in-law of the opposite party. The opposite party has filed a complaint being 1.C.C. Case No.368 of 2015 in the Court of the learned S.D.J.M., Dhenkanal. Vide order dated 07.11.2016, the learned Court below has taken cognizance of the offences punishable under Sections 498(A)/323/34 of I.P.C. against the accused-petitioner Nos.1 and 3 and the offence punishable under Section 4 of the D.P. Act against the accused-petitioner No.2.
Facts
They are aggrieved by the said order of cognizance and have assailed the same in the present petition. 2. This Court vide order dated 09.11.2017 issued notice to the opposite party. But the opposite party refused to accept the notice. The Postal Department remarked about the same, which is placed on record. The Hon’ble Supreme Court in the case of C.C. Alavi Haji vrs. Palapetty Muhammed and Another, reported in (2007) 6 SCC 555 has held that if the notice was sent in the correct address and the postal delivery person finds the door closed or locked or for that matter, the addressee refused to receive the notice, the service should be presumed to be sufficient. The Hon’ble Supreme Court had also taken similar view in the case of State of M.P. vrs. Hiralal and others, reported in 1996 (7) SCC 523. Therefore, the notice on the opposite party is deemed to be sufficient. Page 2 of 11 The matter is pending since 2016. Therefore, without further adjourning the matter, this Court prefers to proceed on the merits of the case. 3. The opposite party on 12.09.2015 lodged a complaint which was registered as Dhenkanal Town P.S. Case No.213(10) of 2015 for the alleged commission of the offences punishable under Sections 498(A)/323/342/376/34 of I.P.C. read with Section 4 of the D.P. Act against the petitioners. In the said complaint, the opposite party had made various allegations, gist of which reads as under:- The allegation against the petitioners is that on 22.04.2011, the opposite party got married to one Subhasis Pani and the present petitioners are the in-laws. The opposite party alleged that on the day of marriage, when the groom’s procession entered the campus of
Legal Reasoning
<The case record is put up today for order after cognizance. Perusal of the case record reveals that in G.R.1015/15 arising out of the F.I.R. lodged on the same allegation, as police submitted charge sheet deleting the name of Sipa Pani, Dipa Pani and Samir Panda against whom the F.I.R. was lodged, order has been passed in this case to proceed against the said accused persons U/s. 210(3) of Cr.P.C. As such, this complaint case is against the above named accused persons only. Perused the complaint petition, initial statement of the complainant recorded U/s. 200 of Cr.P.C. and statement of the witnesses recorded U/s. 202 of Cr.P.C. and it is ascertained that prima facie material exist of proceed against the accused persons Sipa Pani and Dipa Pani for offence U/s. 498A/323/34 of IPC and to proceed against the accused Samir Panda for offence U/s. 4 of D.P. the offence U/s. Act. Accordingly, cognizance of 498A/323/34 of IPC against the accused persons Sipa Pani and Dipa Pani and of offences U/s. 4 D.P. Act against the accused Samir Panda is taken. Issue summons to the accused persons fixing 7.12.16 for their appearance. The Page 5 of 11 complainant is directed to file the requisites within 5 days of this orders.= The petitioners are aggrieved by the same. Hence, this petition. 6. Mr. Panda, learned counsel for the petitioners submitted that the husband of the opposite party had filed a petition under Section 13(1) (i-a)(i-b) of the Hindu Marriage Act, 1955 praying for dissolution of his marriage with the present opposite party. The ground for seeking dissolution of marriage was cruelty meted out to the husband by the opposite party. The learned Judge, Family Court, Dhenkanal vide its judgment dated 16.03.2018 in C.P. Case No.47 of 2016 has allowed the petition and has held that the present opposite party had indeed committed cruelty against her husband and in-laws, as a result of which, the marriage has become hostile. The relevant part of the findings returned by the learned Judge, Family Court, Dhenkanal reads as under:- <15. Lastly on analyzing the oral and documentary evidence of both the parties and the argument advanced by both the parties, it reveals as follows:- (i) the respondent got a case registered U/s. 498A/323/342/306/376/34 I.P.C. read with section-4 D.P. Act (Ext.8) vide F.I.R. No.213 dated 12.04.2015, Page 6 of 11 (ii) after investigation charge sheet submitted U/s. 498-A/323/342/406/34 I.P.C. (Ext.10) against the petitioner Subasis Pani, his father Sudhakar Pani and his mother Bidulata Pani, (iii) the respondent lodged complaint case vide 1.C.C. 368/2015 before learned S.D.J.M., the Dhenkanal (Ext.6) alleging against her father-in-law, sister-in-law and brother-in-law, (iv) order passed on 07.11.2016 vide Ext.7 in 1.C.C. 368/2015 in which cognizance was taken against Subasis pani and Shipa Pani and Dipa Pani for the offence U/s. 498-A/323/34 I.P.C. and against Samir Panda U/s. 4 of D.P. Act. (v) then she initiated a case U/s. 125 Cr.P.C. claiming maintenance vide Cr.P. 145/2015 under Ext.D, (vi) During pendency of this C.P. 47/2016 she initiated C.P. 125/2016 on 07.11.2016 U/s. 9 of the H.M. Act for restitution of conjugal right, but she did not take step for which it was dismissed and against such order she filed C.M.A. 46/2017 U/Or.9 Rule-9 C.P.C. which was also dismissed, (vii) She also filed a case under D.V. Act, 2005 vide Crl. Misc. Case No.47/2016 before the S.D.J.M., Dhenkanal which was rejected by learned S.D.J.M. on 06.12.2017, the (viii) and obtained permission to file amended W.S., then she preferred W.P.(C) No.14928/2017 (ix) again she preferred W.P.(C) No.27122/2017 praying for cross-examination of PWs.1 and 2 on recall which was refused by the Hon’ble High Court, (x) In C.P. 47/2016 it was sent to mediation on 16.11.2016 but the same was returned on 22.12.2016 Page 7 of 11 with a failure report as the respondent-wife did not appear, (xi) In C.P. 125/2016 the case was sent to mediation but same returned with a failure report that the husband does not want for a reunion, and (xii) of P.W.1 and P.W.2. she did not take part in the cross-examination 16. From the above steps taken by the respondent, it reveals that even if she does not want divorce, but from the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make the life of the petitioner miserably hale. She did not think about her daughter while making allegation against her father-in-law and lodging case after case. No step was taken by her for reunion. Both the husband and wife are now bent upon to assassinate the character of each other and both parties alleged that they were subjected to cruelty by the other spouse. From such conduct of both parties, it is abundantly clear that the marital bound between them has been broken and it is beyond repairable condition and same has been broken down irretrievably and there is no chance of their coming together or living together again. So in this situation the petitioner-husband is entitled to get a decree of divorce by dissolution of his marriage with the respondent. So point nos. 1,2 and 3 are answered accordingly.= 7. Basing upon the aforementioned findings and emphasizing the evidence brought on record in those cases, Mr. Panda, learned counsel for the petitioners submitted that the present case is an outcome of private and personal grudge by the opposite party and maliciously instituted with an ulterior motive for wreaking vengeance on the present petitioners. By relying upon the judgment of the Hon’ble Page 8 of 11 Supreme Court in the case of State of Haryana and others v. Bhajan lal and others, reported in 1992 Supp (1) Supreme Court Cases 335, he submitted that the Hon’ble Supreme Court in Bhajan Lal (supra), has postulated the broad guidelines carving out as many as seven exceptions, wherein the Court can invoke its jurisdiction under Section 482 Cr.P.C to prevent abuse of the process of any court or otherwise to secure the ends of justice. The exceptions are as follows: <(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 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. Page 9 of 11 (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 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. instituted) to is (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.= Accordingly, he seeks indulgence of this Court. 8. I have perused the materials placed on record and analyzed the facts of the present case in the light of the judgment of the Hon’ble Supreme Court in the case of Bhajan Lal (supra). It also appears from the record that the opposite party has lost interest in the present case. Therefore, I am of the considered view that subjecting the petitioners to the rigors of trial in the present case on the face of the findings of the learned Judge, Family Court, Dhenkanal in his judgment dated 16.03.2018 passed in C.P. No.47 of 2016 would be a futile exercise. Therefore, the case of Page 10 of 11 the petitioners are directly covered by the settled principle of law enunciated in the judgments of the Hon’ble Supreme Court in the cases of Gian Singh vs. State of Punjab and another, reported in 2012 (10) SCC 303 and B.S. Joshi & others vs. State of Haryana & another, reported in (2003) 4 SCC 675, I consider it a fit case to interfere at this stage and quash the entire proceeding, so as to avoid the process of futile judicial proceeding. 9. Accordingly, the criminal proceeding in 1.C.C. Case No.368 of 2015 pending in the Court of the learned S.D.J.M., Dhenkanal against the petitioners and the consequential proceedings arising therefrom are quashed.
Arguments
Sriram Mandap, the marriage venue, the petitioner No.2, who is the brother-in-law was in a highly inebriated state created a disturbance demanding a luxurious car in dowry and other accused persons joined with him and demanded more dowry. The accused persons being the in-laws of the opposite party, dragged the groom from the marriage Page 3 of 11 altar and told that unless a luxurious long car is given, the marriage cannot be materialized, for which, the father of the opposite party had agreed to fulfill all the demands of the accused persons. It is further alleged that after marriage, the petitioners also used to abuse the informant/opposite party and demanded more dowry and a sum of Rs.5 lakhs and tortured her both physically and mentally. The complainant/opposite party further alleged that on 12.09.2015, she lodged a F.I.R. naming these petitioners. When the I.I.C., Town P.S., Dhenkanal saw that petitioner No.2, who is the I.I.C. of Vikrampur P.S. was one of the accused persons, he informed the matter to petitioner No.2 and on being instigated, he was reluctant to register the case. He threatened, misbehaved and detained the opposite party and her father for 12 hours in the guise of registration of the case and also insisted her for compromise. It was further alleged that though an allegation of rape was made in the F.I.R., no investigation was carried out in that regard, hence, the complaint case was filed. Page 4 of 11 4. After investigation, the police filed charge-sheet on 18.05.2016 for the alleged commission of offences under Sections 498(A)/323/342/406/34 of I.P.C. read with Section 4 of the D.P. Act against the husband and parents-in-laws of opposite party exonerating the present petitioners . 5. The opposite party was left aggrieved and filed 1.C.C. Case No.368 of 2015 against the present petitioners. The learned S.D.J.M., Dhenkanal vide order dated 07.11.2016 has taken cognizance of the offences and passed the following order:-
Decision
10. With this aforesaid observation, the CRLMC is disposed of. S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 23rd December, 2024/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 07-Jan-2025 12:06:18 Page 11 of 11