The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2630 of 2023 An application under Section 482 of Code of Criminal Procedure, 1973. --------------- AFR Suryakanta Bhutia and another ...… Petitioners -Versus- State of Odisha ...... Opposite Party Advocate(s) appeared in this case:- _________________________________________________________________ For Petitioners : Mr. S.C. Mohapatra, Sr. Advocate. With M/s. S.Mohapatra, M.R.Mohapatra For Opp. Party : Mr. S.K. Mishra, Additional Standing Counsel _________________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th August, 2023 SASHIKANTA MISHRA, J. The petitioners have been arrayed as accused persons along with others in G.R. Case No. 3 of 2023 pending before the learned J.M.F.C.(Cog Taking), Dhenkanal under Sections 498-A/302/304-B/34 IPC and Section 4 of the Dowry Prohibition Act. In the present application filed under Page 1 of 10 Section 482 of Cr.P.C., they seek to challenge the order dated 02.05.2022 issuing process against them. 2. The facts of the case, briefly stated are that one Kirti Chandra Mahakhud lodged a complaint before the IIC of Hindol Road Police Station on 01.01.2023 alleging therein that his daughter had been killed by her in-laws including her husband after being subjected to mental and physical cruelty in connection with demand for dowry. This led to registration of Motanga P.S. Case No. 2 of 2013 under Sections 498-A/302/304-B, 34 IPC read with Section 4 of the D.P. Act. The husband of the deceased, his father, mother, two elder brothers and younger brother were shown as accused persons. Petitioner No.1 is the elder brother of the husband of the deceased and petitioner No.2 is his younger brother. It is alleged that the deceased was married to one Ratikanta Bhutia on 07.07.2021 and at the time of marriage, as per demand of her in-laws, cash of Rs.1,00,000/- along with all other ornaments and items were gifted as dowry. However, the in-laws continued to demand further dowry. The husband of the deceased frequently quarrelled with her for which she used to come back and reside in her Page 2 of 10 matrimonial home on some occasions. Ultimately on 01.01.2023, the informant received information that his daughter had died. In course of investigation, it was found that the deceased had died because of asphyxia caused by strangulation. Upon completion of investigation, charge sheet was submitted against all the accused persons. In the meantime, on the prayer of the I.O., non-bailable warrant of arrest was issued against the present petitioners. 3. After considering the materials on record, the Court below by order dated 02.05.2022 found prima facie materials to take cognizance of the aforementioned offences. By the same order the Court below also issued process against the accused persons and noted that non-bailable warrant had already been issued against the petitioners. Being aggrieved the petitioners have approached this Court with prayer to quash the NBW pending against them. 4.
Legal Reasoning
involved in the alleged occurrence, prima facie. It is trite that an order issuing process cannot be issued mechanically. It requires proper application of the judicial mind on the part of the Court to be subjectively satisfied that the materials on record do justify issuance of process against any particular person. To such extent therefore, the impugned order becomes vulnerable inasmuch as the same does not reflect any such application of mind having been made by the learned Magistrate. Since law requires the Magistrate‟s subjective satisfaction to be recorded before issuing process, any order passed to the contrary would not be tenable in the eye of law. This Court however, observes that on the prayer of the I.O. NBW has already been issued against the petitioners even prior to the order taking cognizance and issuance of process. Therefore, ends of justice would be best served if the petitioners surrender before the Court below in obedience to the non-bailable warrant of arrest and move for bail. In so far as the order issuing process is concerned, this Court deems it proper to interfere therewith by quashing the same in so far as the same relates only to the present petitioners with further direction to the learned Magistrate to consider the Page 9 of 10 point afresh strictly on the basis of the materials produced by the prosecution. 11.
Arguments
Heard Mr. S.C. Mohapatra, learned Senior Counsel along with Mr. P. Mohapatra learned counsel for the petitioners and Mr. S.K. Mishra, learned Additional Standing Counsel for the State. Page 3 of 10 5. Mr. Mohapatra would argue that taking of cognizance and issuance of process is not an empty formality. The Magistrate ought to have applied his judicial mind to see whether issuance of process against the accused persons was justified. Referring to the FIR and the statement of the witnesses recorded by the I.O. under Section 161 of IPC., Mr. Mohapatra would further contend that there is not a whisper of allegation against the present petitioners and all the allegations have been made in general and omnibus manner to rope in all the family members of the husband of the deceased. No specific overt act has been attributed to either of the petitioners. According to Mr. Mohapatra therefore, issuance of process against the present petitioners is entirely illegal. In support of his contention, he has relied upon some case laws namely, Kans Raj v. State of Punjab, reported in (2000) 5 SCC 207; K. Subba Rao vs. The State of Telengana (Criminal Appeal No. 1045 of 2018, decided on 21.08.2018); Kailash Chandra Agrawal v. State of U.P., reported in (2014) 16 SCC 551, Kahkashan Kausar v. State of Bihar, reported in (2022) 6 SCC 599. Mr Mohapatra has Page 4 of 10 also relied upon the decision of this Court in the case of Babaji Charan Barik vs. State, reported in (1994) 7 OCR 91. 6. Per contra, Mr. Mishra would argue that it is too premature to conclusively hold whether the accused persons are innocent or not. The FIR as well as the statements of the witnesses recorded by the I.O. would go to the show that all the family members of the husband of the deceased had subjected her to physical and mental cruelty in connection with demand for dowry on several occasions. Therefore, taking cognizance of the offences and issuing process against the accused persons cannot be faulted with. 7. In order to appreciate the contentions put forth before this Court it is felt proper to first refer to the FIR allegations. Reading of the FIR would show that according to the informant, despite payment of cash of Rs.1,00,000/- and other articles at the time of marriage “all the accused persons” demanded further dowry. It was specifically alleged that her husband used to assault her on several occasions due to which she used to come and reside in her house and on being convinced by her husband she would again go back to her in-laws house. It is evident that nothing specific has Page 5 of 10 been alleged in so far as the present petitioners are concerned. In the statements recorded by the I.O. under Section 161 of Cr.P.C. also nothing has been stated by Jharana Mahakud, mother of the deceased, the informant or the other witnesses against the present petitioners. On the contrary, four independent witnesses have been examined, all of whom have stated that the deceased had a four month old son, who frequently fell ill. It was the reason for discord between her and her husband. One Haladhar Rout has also referred to the quarrel between the husband and wife while the child was being taken to the hospital in his Auto- rickshaw. Thus, this Court finds considerable force in the submission of Mr. Mohapatra that in so far as the present petitioners are concerned nothing specific has been alleged against them. Of course, the same cannot be said of the husband of the deceased or the father in-law and mother in- law. 8. Coming to the case laws cited by Mr. Mohapatra, the case of Kahkashan Kausar (supra) also challenge was made to the order of conviction. In the case of Babaji Charan Barik (supra), this Court was deciding an appeal arising out Page 6 of 10 of conviction. The aforesaid decisions are therefore not applicable to the case at hand. In the case of Kailash Chandra Agrawal (supra) however the Apex Court observed the following under paragraphs 8 and 9: “8. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj v. State of Punjab [Kans Raj v. State of Punjab, (2000) 5 SCC 207 : 2000 SCC (Cri) 935] , it was observed: (SCC p. 215, para 5) “5. … A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even In their over against the real culprits. enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the prosecution even against the real accused as appears to have happened in the instant case.” case the of The Court has, thus, to be careful in summoning there being specific distant relatives without material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role. 9. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of the jurisdiction can be court’s process, quashing Page 7 of 10 exercised. Reference may be made to K. Ramakrishna v. State of Bihar [K. Ramakrishna v. State of Bihar, (2000) 8 SCC 547 : 2001 SCC (Cri) 27] , Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and Asmathunnisa v. State of A.P. [Asmathunnisa v. State of A.P., (2011) 11 SCC 259 : (2011) 3 SCC (Cri) 159].” 9. In the judgment rendered in K. Subba Rao (supra), the Apex Court made the following observations. to interfere to secure “Criminal proceedings are not normally interdicted by us at the interlocutory stage unless there is an abuse of process of a Court. This Court, at the same time, does not hesitate the ends of justice. See State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. See Kans Raj v. State of Punjab & Ors. (2000) 5 SCC 207 and Kailash Chandra Agrawal and Anr. v. State of Uttar Pradesh & Ors. (2014) 16 SCC 551.” 10. It is debateable whether close family relations as the brother of the husband of the deceased can be described as „distant relatives‟. Nevertheless, this Court is of the view that taking of cognizance and issuance of process are two separate and distinct acts. In the former case, the Court takes judicial notice of the offences that are alleged to have been committed. In the latter however, the Court decides to issue process against persons whom it thinks to have been Page 8 of 10
Decision
The CRLMC is therefore disposed of in terms of the observations made hereinabove. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 9th August, 2023/A.K. Rana/Deepak Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2023 19:07:17 Page 10 of 10