Hig High Court
Case Details
IN THE HIG HIGH COURT OF ORISSA AT CUTTA UTTACK CRLMC No. 3892 of 2016 Bijay Kumar Bis r Biswal …. Petitioner Mr. D.R. Bhokta, hokta, Advocate -versus- State of Orissa & sa & another …. Opp. Parties Op Mrs. S. Moh Mr. L. Pani, Advocate for Mohanty, ASC ate for O.P. No.2 CORAM: THE HON’BLE BLE MR. JUSTICE CHITTARANJAN D JAN DASH Date of Judgment:07.07.2025 Chittaranjan Dash, ash, J. 1. By means means of this application, the Petitioner itioner seeks the indulgence of this of this Court praying to quash the order of er of cognizance dated 09.06.2016 .2016 passed by the learned S.D.J.M., Kora , Koraput in 1CC Case No.02 of 201 of 2016, wherein, the Petitioner has been im een implicated in the offence under S under Sections 143/448/149 of IPC. 2. The backgr background facts of the case are that on 14.0 n 14.09.2011, the complainant, Bija , Bijaya Laxmi Sahu, lodged a report at ort at Sunabeda Police Station alle n alleging that two years earlier, in the abs he absence of her husband Baikunt aikunthanath Sahu, several iduals individuals including Dandapani Swain wain and the present Petitioner, Bijay Kum y Kumar Biswal, unlawfully entered ntered their house at night by breaking the l g the lock. It was alleged that Swain Swain, accompanied by his son-in-law (the w (the Petitioner) and others, continu ontinued to occupy the house despite the com the complainant’s objections. The ge he genesis of the dispute, however, lies in ies in a monetary transaction betwee between Baikunthanath Sahu and Dandap andapani Swain. CRLMC No. 3892 of of 2016 Page 1 of 9 Sahu had defaulte efaulted on instalments for a Housing Bo ng Board quarter (MIG-1) allotted lotted to him, resulting in its cancellation ellation in 2002. Nonetheless, in 2 , in 2008, to meet his brother’s medical edical expenses, Baikunthanath acc th accepted Rs. 92,000/- from Swain aga n against a total consideration of R n of Rs. 1,40,000/- and handed over posses possession of the quarter without di out disclosing the cancellation status. The s. The agreement was notarized, and d, and the Petitioner, as a witness and relat d relative, signed the receipt. Swain Swain later occupied the house, spent mo nt money on its repair through th gh the Petitioner, and conducted a hou a housewarming ceremony. Years ears later, when property values rose, Bai e, Baikunthanath allegedly demande manded more money, which Swain refused, fused, prompting the Sahu family to ily to initiate police complaints, which wer h were treated as civil disputes. The s. The matter resurfaced through a private private complaint leading to the cog he cognizance order. This petition has the as therefore been preferred to quas quash the said order, asserting that the at the dispute is essentially civil in ivil in nature and that the criminal proceedin ceedings amount to an abuse of the p of the process of law. 3.
Legal Reasoning
Mr. Bhokt Bhokta, learned counsel for the Petitioner itioner submitted that the entire cas re case stems from a property dispute betw e between private parties, and the all the allegations made in the complaint, even , even if accepted in their entirety, d rety, do not disclose the commission of an of any criminal offence by the Peti he Petitioner. It was contended that the Petiti Petitioner, being the son-in-law of aw of one of the accused and a local cont l contractor, was merely a witnes witness to a notarised transaction be n between the complainant’s hus ’s husband and Dandapani Swain and had d had no role in any alleged trespa trespass or intimidation. Mr. Bhokta asse a asserts that the dispute revolves a lves around possession and consideration re tion relating to a Housing Board qu ard quarter, which had already been cance cancelled due to CRLMC No. 3892 of of 2016 Page 2 of 9 default in payment yment. Counsel further pointed out that the p at the police, after thorough investiga vestigation, submitted a Final Report categ t categorising the matter as a “Mista “Mistake of Law” due to lack of material a terial and witness support. He submi submits that despite this, the complainant file ant filed a private complaint after an fter an unexplained delay of four years, ears, which was entertained withou without due regard to the earlier findings. M ings. Mr. Bhokta finally submits tha its that the complaint is nothing but a civi a civil grievance being given a crim a criminal colour, and the continuation of p n of proceedings against the Petitio Petitioner amounts to abuse of the proce process of law, warranting interfer nterference under Section 482 Cr.P.C. 4. Ms. Moha Mohanty, learned counsel for the State o tate opposed the petition and subm submitted that the allegations made in the in the complaint disclose the comm commission of cognizable offences, includin ncluding criminal trespass and intim intimidation, and that the learned Mag Magistrate was justified in taking taking cognizance based on the material aterials available before him. She . She argued that the complainant has c has consistently alleged unlawful e wful entry into her premises and forcible occ ble occupation by the accused perso persons, including the present Petitioner itioner, and such allegations are suf re sufficient at the stage of cognizance to pr e to proceed with trial. Ms. Mohant ohanty further contended that the delay in elay in filing the complaint may b ay be attributed to the complainant’s u ’s unsuccessful attempts to seek p seek police intervention, and such delay al lay alone should not defeat the cas he case at the threshold. She also submitt ubmitted that the veracity of the alle he allegations, the role of the Petitioner, and er, and the nature of the dispute are a te are all matters for trial, and the petition un ion under Section 482 Cr.P.C. seekin seeking quashment at a premature stage oug e ought not to be entertained. CRLMC No. 3892 of of 2016 Page 3 of 9 5. Upon peru n perusal of the case record, it is evident tha ent that the entire case arises out of ut of a dispute surrounding Quarter No. M o. MIG-1 of the Housing Board Co ard Colony, Sunabeda, which was initially itially allotted to one Baikunthanath hanath Sahu, husband of the complainant, by ant, by the Orissa State Housing Bo ng Board in 1998. Despite paying the in the initial down payment, Baikunth ikunthanath failed to pay further instalments lments, leading to cancellation of th of the allotment in 2002. Notwithstandin standing this, he continued in pos n possession of the house without clea t clearing dues. Subsequently, in S y, in September 2008, to meet medical expe l expenses for his ailing younger bro er brother, Baikunthanath received ₹92,000 2,000/- from one Dandapani Swain Swain as part of a ₹1,40,000/- con consideration, relinquishing poss g possession and handing over keys of th of the house to Swain. A notarised tarised acknowledgement was executed, sign d, signed by both parties and witnes witnessed by others, including the present resent Petitioner, who is Swain’s s ’s son-in-law. The material on record r cord reveals that Swain, facing retir g retirement and needing accommodation, s ation, shifted into the quarter in Sep in September 2009. Prior to this, a group group comprising Swain, the Petitio Petitioner, and others had visited the hous house to assess repair costs. When . When Swain misplaced the key and the c the complainant refused to provide rovide a duplicate, the lock was broken to en to gain entry. Swain then occup occupied the house, undertook repairs, r airs, reconnected utilities, and organ organized a “Griha Pratistha” ceremony a ony attended by local residents and ts and even, as claimed, members of the com the complainant’s family. It also eme so emerges that the Petitioner, being a local local contractor, had invested aroun around ₹60,000/- to repair the complainan plainant’s current residence in MIG MIG-2 as part of an oral understandin standing for the remaining conside onsideration. CRLMC No. 3892 of of 2016 Page 4 of 9 6. It is also re also relevant to note that Baikunthanath rem th remained silent for nearly two yea o years after Swain’s occupation. Only aft nly after a rise in the property’s val ’s value did he demand an additional ₹1 ₹1 lakh from Swain, which wa ch was declined. This triggered a series series of police complaints by Bai y Baikunthanath and the complainant, culm , culminating in a report dated 14.09 14.09.2011 that led to the present proceed roceeding. Upon investigation, the , the police concluded the matter was civi as civil in nature and filed a Final R inal Report dated 31.08.2012 categorizing th zing the case as a “Mistake of Law f Law” under Sections 143/448/149 IPC, IPC, owing to absence of materi material evidence or corroborating witness itnesses. Despite the Final Report, eport, the complainant filed a complaint in int in 2016, four years later, allegin alleging identical facts, without explaining aining the delay. Based on this, the is, the learned S.D.J.M., Koraput, took cog ok cognizance on 09.06.2016 for off for offences under Sections 294, 447, 448, 5 448, 506, and 34 IPC. This order order forms the subject of challenge in t e in the present petition. 7. The compl complaint, when viewed in its entirety alon ty along with the police report and s t and supporting materials, reflects that the at the crux of the dispute is the po the possession and transfer of a residenti sidential quarter, involving monetar onetary transactions, informal agreements, ents, and failure to fulfil Housing sing Board obligations. The incident cident regarding breaking the lock lock and entry into the house appears to be s to be part of the transactional chain l chain between Baikunthanath and Dandap andapani Swain, where the Petition etitioner was only a witness and an assistin assisting relative. There is nothing to hing to indicate any criminal intent or indepe independent overt act attributable to ble to the Petitioner. In fact, his role, as per as per the record, appears limited to ited to assisting in repairs and witnessing a ssing a monetary transaction betwee etween close relatives. CRLMC No. 3892 of of 2016 Page 5 of 9 8. The Supre Supreme Court has consistently held that d that the power under Section 482 n 482 Cr.P.C. can and should be exercise ercised to quash proceedings where where the allegations are manifestly absu absurd, civil in nature, or intende intended to harass. The Hon’ble Apex C pex Court in its decision in the mat he matter of State of Haryana vs. Bhajanlal nlal reported in 1992 Supp(1) SCC 1) SCC 335, has laid down the following gu ing guidelines for exercise of power ower under Section 482:- information ken at their not prima ase against ation report the FIR do tifying an n 156(1) of trate within ade in the in support ion of any constitute a cognizable lice officer lated under Where the allegations made in the first inform “(1) Where t or the complaint, even if they are taken at report or th value and accepted in their entirety do not p face value facie consti constitute any offence or make out a case ag ccused. the accused here the allegations in the first information r (2) Where other materials, if any, accompanying the FI and other m justifying disclose a cognizable offence, not disclo tigation by police officers under Section 156( investigatio ode except under an order of a Magistrate w the Code e urview of Section 155(2) of the Code. the purview (3) Where FIR or com of the sam offence and (4) Where, cognizable offence, no without an Section 155 (5) Where t are so absu which no conclusion against the (6) Where t of the prov (under whi institution where there here the uncontroverted allegations made i or complaint and the evidence collected in su e same do not disclose the commission of ce and make out a case against the accused. here, the allegations in the FIR do not constit izable offence but constitute only a non-cogni no investigation is permitted by a police o ut an order of a Magistrate as contemplated u on 155(2) of the Code. here the allegations made in the FIR or comp o absurd and inherently improbable on the ba h no prudent person can ever reach a lusion that there is sufficient ground for procee st the accused. here there is an express legal bar engrafted in e provisions of the Code or the concerned er which a criminal proceeding is instituted) t ution and continuance of the proceedings a e there is a specific provision in the Code o r complaint the basis of ach a just proceeding afted in any cerned Act uted) to the ings and/or ode or the CRLMC No. 3892 of of 2016 Page 6 of 9 ess for the concerned grievance o (7) Where with mala maliciously wreaking v spite him d erned Act, providing efficacious redress fo ance of the aggrieved party. here a criminal proceeding is manifestly atte mala fide and/or where the proceedin iously instituted with an ulterior motive king vengeance on the accused and with a vie him due to private and personal grudge.” tly attended ceeding is motive for h a view to And furthe further held in Naresh Kumar & Anr. Vs. T . The State of Karnataka & Anr. Anr. reported in 2024 LiveLaw (SC) 228 ) 228 – its “6. In the Uttarakhan that althoug Section 482 be exercise hesitate in are essentia In the case of Paramjeet Batra v. Stat akhand (2013) 11 SCC 673, this Court recog lthough the inherent powers of a High Court u on 482 of the Code of Criminal Procedure sh xercised sparingly, yet the High Court mus ate in quashing such criminal proceedings w ssentially of a civil nature. This is what was he jurisdiction u “12. While exercising “12. ction 482 of the Code the High Court has Section utious. This power is to be used sparingly and cautious. r the purpose of preventing abuse of the proce for the p Court or otherwise to secure ends of ju any Cou hether a complaint discloses a criminal offen Whether t depends upon the nature of facts alleged the not depe hether essential ingredients of criminal offenc Whether esent or not has to be judged by the High Cou present o mplaint disclosing civil transactions may also complain criminal texture. But the High Court mus a crimin ether a dispute which is essentially of a whether ture is given a cloak of criminal offence. In s nature is uation, if a civil remedy is available and is, in situation opted as has happened in this case, the High C adopted ould not hesitate to quash the criminal procee should n prevent abuse of process of the Court.” to preven . State of recognized Court under dure should rt must not ings which was held: tion under t has to be ly and only process of of justice. l offence or ged therein. offence are h Court. A y also have t must see of a civil e. In such a d is, in fact, High Court proceedings (emphasis supp ing upon the decision in Paramjeet Batra (su ourt in Randheer Singh v. State of U.P. (202 626, observed that criminal proceedings cann recourse to as a weapon of harassment. In raborty & Anr. v. State of West Bengal & SCC OnLine SC 90, relying upon Paramjeet a) it was again held that where a dispute whi is supplied) tra (supra), . (2021) 14 s cannot be nt. In Usha gal & Anr. mjeet Batra te which is Relying up this Court i SCC 626, o taken recou Chakrabort 2023 SCC (supra) it w CRLMC No. 3892 of of 2016 Page 7 of 9 essentially criminal of exercising t Code of Cr tially of a civil nature, is given a cloak inal offence, then such disputes can be quashe ising the inherent powers under Section 482 o of Criminal Procedure.” cloak of a quashed, by 482 of the 9. In the inst instant case, the allegations of criminal tr inal trespass and intimidation are n are not only stale being raised years after after the alleged incident but are t are also unsupported by any material terial that could establish mens re ens rea or any criminal intent on the p the part of the Petitioner. The co he complainant has offered no explanati planation for the inordinate delay of elay of four years in filing the complaint afte nt after the police had already submi submitted a Final Report categorising the g the matter as a mistake of law. D law. Despite this, the learned Magistrate pr rate proceeded to take cognizance w ance without examining the earlier police olice findings or considering the ci the civil complexion of the dispute, which which appears to stem from an abort n aborted housing transaction and post-facto facto grievances. A perusal erusal of the Final Form further reveals th als that the core issue relates to dis to disputes over ownership and occupation o ation of a quarter allotted by the Ho he Housing Board, specifically involving no g non-payment of instalments, can ts, cancellation of allotment, and informal ormal agreements concerning posses possession. The allegations that the accused ccused, including the Petitioner, for , forcibly entered the premises do not d not disclose any criminal motive bu tive but rather relate to a contested claim of aim of possession following a mone monetary transaction. In this background, round, the Court below ought to ha t to have carefully scrutinised the factual ma ual matrix before entertaining a crim a criminal complaint in what is, at its co its core, a civil dispute. 10. In view o iew of the foregoing discussion, this Cou is Court finds it pertinent to reitera reiterate that the extraordinary power under S nder Section 482 Cr.P.C. is to be to be exercised with caution and circu circumspection. CRLMC No. 3892 of of 2016 Page 8 of 9 However, such po ch power must be invoked when it become ecomes necessary to prevent manifes anifest abuse of the process of the Court or to secure of the ends of justice, especially where ju the alleg allegations are demonstrably absu y absurd, inherently improbable, or intended tended to harass. In the case at hand t hand, the material placed on record and th and the sequence of events clearly learly reveal that the dispute arises out o out of a failed transaction involving a Housing Board property invol roperty and is predominantly civ tly civil in nature. The complainant, after a after a prolonged silence and follow following adverse police findings, sought to ght to revive the matter by clothin clothing it with criminal allegations, w ns, without any foundational basis l basis or specific material implicating t ting the present Petitioner. 11. As a result result, this Court is of the considered opini opinion that the continuation of the of the criminal proceeding against the Petiti Petitioner would amount to an ab n abuse of the process of law. No prima fa ima facie case is made out so far as far as the Petitioner is concerned, and his p d his prosecution in this context wou xt would be unwarranted. 12. According ordingly, the Criminal Miscellaneous Case Case is allowed. The order of cogn f cognizance dated 09.06.2016 passed by d by the learned S.D.J.M., Koraput oraput in 1CC Case No.02 of 2016, so far as far as it relates to the present Petitio Petitioner, is hereby quashed. Needless t less to say, this Court has not exp ot expressed any opinion on the merits of th ts of the case and all other grounds ounds taken by the defence in the annexu nnexures are left open. Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Bijay Reason: Authentication Location: HIGH COURT OF ORISSA Date: 08-Jul-2025 18:06:49 (Chittaranjan D an Dash) Judge CRLMC No. 3892 of of 2016 Page 9 of 9