The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO.1104 of 2017 (In the matter of application under Section 482 of the Criminal Procedure Code, 1973). Dharitri Mishra … Petitioner -versus- State of Orissa and Others … Opposite Parties For Petitioner : Mr. B. Nayak, Advocate For Opposite Parties : Mr. S.S. Pradhan, AGA Mr. S.R. Mohapatra, Advocate (O.Ps.1-12) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :04.04.2023 DATE OF JUDGMENT :17.04.2023 G. Satapathy, J. An application U/S.482 of Cr.P.C. filed by the petitioner by way of this CRLMC prays to direct issuance of summons against O.P.Nos.2 to 12 in I.C.C. No. 889 of 2017 along with four accused persons charge-sheeted in Cuttack Mahila P.S. Case CRLMC No.1104 of 2017 Page 1 of 17 No.132 dated 17.09.2014 corresponding to G.R. Case No.1538 of 2014 of the Court of learned S.D.J.M., Cuttack. 2. The short facts involved in this case arise out of
Facts
an FIR lodged by the petitioner against her husband, in-laws and others numbering 15 persons before the IIC, Mahila P.S., Cuttack alleging therein against them for subjecting her to torture and cruelty for demand of dowry, causing miscarriage of her pregnancy as well as assaulting and threatening her and also specifically against her brother-in-law for ravishing her and, accordingly, the investigation ensued, which culminated in submission of charge- sheet only against husband, brother-in-law, father-in- law and mother-in-law, but not against the other persons named in the FIR. However, the learned S.D.J.M., Cuttack after going through the materials placed on record took cognizance of offences U/Ss.498-A/376/506/406/34 of IPC read with Section CRLMC No.1104 of 2017 Page 2 of 17 4 of D.P. Act and issued summons to the above four charge sheeted accused persons. Feeling aggrieved with non-submission of charge-sheet against O.P.Nos.2 to 12, the petitioner filed a protest petition in shape of complaint against O.P.Nos.2 to 12 in 1.C.C. Case No.899 of 2017 in the Court of learned S.D.J.M., Cuttack, who by an order passed on 20.01.2017, dropped the complaint by holding it to be not maintainable. Aggrieved by such order, the petitioner has approached this Court in the present CRLMC for the relief indicated in the preceding paragraph.
Legal Reasoning
prima facie materials against the accused persons. In both the situations, the Magistrate has power to agree or disagree with the police report and to adopt one of the options as provided alternatively, but while dropping a proceeding against the accused persons on receipt of the police report, the Magistrate has to give a notice to the informant and if the informant so desires, he/she has to be heard before dropping the proceeding. Additionally, Section 319 of the Code of CRLMC No.1104 of 2017 Page 10 of 17 Criminal Procedure, 1973 confers power to proceed against other persons appearing to guilty of offences. 9. On coming back to the contention of O.P. Nos. 2 to 12, experience shows that in large number of cases of matrimonial disputes, the offence U/S. 498-A of IPC is grossly misused against the in-laws in the society to harass them with rigmarole of the trial procedure and sometimes those relatives who might not have met the woman (bride) or do not live with her are also roped in by way of omnibus/general allegation which in common parlance means that allegation leveled on all the accused persons are the same or general which is a situation wherein one fails to ascertain the role played by each accused for committing offence. In such situation the very object and purpose of Section 498-A of IPC which is meant to prevent cruelty inflicted upon a woman by her husband or in laws, are defeated, when the penal CRLMC No.1104 of 2017 Page 11 of 17 section is used to settle once personal vendetta against the husband and his relatives. 10. In this regard this Court considers it profitable to refer to the decision in Kahkashan Kausar @ Sonam Vrs. State of Bihar; (2022) 6 SCC 599 wherein the Apex Court while considering general and omnibus allegations in matter relating to dowry death and cruelty has reminded the duty of the Court as follows:- relatives the distant “The Courts should be careful in proceeding against 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.” In the above decision, the Apex Court has also held thus:- “The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a these task herculean complaints. The implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to in majority of tendency of CRLMC No.1104 of 2017 Page 12 of 17 ascertain the real truth. The courts have to be extremely careful and cautious in dealing with take these complaints and must pragmatic realities into consideration while The dealing with matrimonial allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be and circumspection.” scrutinized with great cases. care 11. In Geeta Mehrota and another Vrs. State of Uttar Pradesh and another; (2012) 53 OCR(SC) 1257, the Apex Court while quashing the proceeding has observed that family members of husband were shown as accused by making casual reference to them. In the same judgment, it is held that a large number of family members are shown in the FIR by making casual reference and without allegation of active involvement in the matter, taking cognizance of offences in the same matter was considered to be not justified. CRLMC No.1104 of 2017 Page 13 of 17 12. In the case at hand, there appears no dispute about informant lodging an FIR against the husband and 14 others, out of whom, five are described as in laws, but the I.O. after conclusion of investigation has submitted charge sheet against husband, brother-in- law, father-in-law and mother-in-law. On receipt of charge sheet and after being prima facie satisfied, the learned S.D.J.M. took cognizance of offences and issued process against these four charge-sheeted accused persons prior to the passing of the impugned order on 20.01.2017 dropping the complaint and in the meanwhile, around six years have elapsed. This Court, therefore, considers that the case must have been committed to the Court of Sessions and proceeding thereon must have been followed up. In such situation, although the CRLMC has been filed in the year 2017, but the petitioner has never tried to get the matter listed by way of mentioning for early disposal of the case and the learned counsel for the CRLMC No.1104 of 2017 Page 14 of 17 petitioner having failed to apprise the Court about the present stage of the case, it cannot be considered proper to direct summoning opposite party Nos. 2 to 12 afresh in the protest petition at such lapse of time, when such other efficacious remedies are available to the petitioner under law, which of course subject to fulfillment of requirement of law. 13. A careful consideration of the matter would reveal that although notice has not been issued to the informant to know about the status of investigation, but the informant having filed a protest petition in the form of complaint after knowing that the police has left the name of O.P. Nos. 2 to 12 in the charge sheet and therefore, the very purpose of contention raised on behalf of the petitioner having already been availed of, right now the proceeding in the criminal case should not be brought to the stage of consideration of police report for taking cognizance of offence by hearing the informant after more than six CRLMC No.1104 of 2017 Page 15 of 17 years of dropping of the complaint instituted by the informant on knowing about the police has not charge sheeted O.P. Nos. 2 to 12 on her FIR. It is also matter of common experience that exaggerated version of the incident is reflected upon in a large number of complaints which is manifestation of over implication of in-laws in a very large number of cases. Nevertheless, the husband, brother-in-law and parents-in-law have been charge sheeted in this case, but the petitioner wants to rope some more people who are distant relatives of the husband of the petitioner. In such situation, when the case must have been committed to the Court of Sessions and trial should have been ensued thereon and the petitioner, therefore, may resort to other provisions of law as available to her in case there is any ring of truth in her allegation against the other accused persons who are left out in this case and the same has to be judged on the parameter of the specific CRLMC No.1104 of 2017 Page 16 of 17 provisions of law by the Court in seisin of the case, but at such length of time, this Court is not in favour of directing the learned SDJM, Cuttack who might not be in seisin of the case to summon O.P. Nos. 2 to 12 as accused persons in this case, more particularly when the police has not charge sheeted them and the Court by the impugned order has refused to summon them after hearing the informant and State.
Arguments
3. In the course of hearing of CRLMC, Mr. Balaram Nayak, learned counsel for the petitioner submits that although the petitioner has filed an FIR against 15 persons, but the Investigating Officer had only submitted charge-sheet against four persons leaving 11 accused persons without any proper investigation/reasons and the learned S.D.J.M., Cuttack has fallen in error while taking cognizance of offences, CRLMC No.1104 of 2017 Page 3 of 17 agreeing with the police report submitted U/S.173(2) of Cr.P.C. and not issuing notice to O.P.Nos.2 to 12. Learned counsel for the petitioner further submits that the petitioner being the informant has right to be noticed and heard before dropping of the proceeding against some of the accused persons, who have been arraigned as accused persons for the act done on the informant, but the learned S.D.J.M., Cuttack having not issued notice or heard the informant, has passed the order ignoring to issue summons to O.P.Nos.2 to 12, who are liable for the offences committed upon the informant and, therefore, the learned S.D.J.M., Cuttack having failed to comply the mandate of law, may be directed to issue summons to O.P.Nos.2 to 12 to face the trial in the case. 4. On the other hand, Mr. S.S. Pradhan, learned AGA, however, submits that the learned S.D.J.M., Cuttack has not committed any illegality and after taking into account the materials on record, the learned S.D.J.M., Cuttack has acted judicially to issue notice CRLMC No.1104 of 2017 Page 4 of 17 upon the accused persons prima facie responsible for the commission of offences. Learned AGA accordingly prays to dismiss the CRLMC. 5. Mr. S.R. Mohapatra, learned counsel appearing for O.P.Nos.2 to 12, however, reiterating the submission advanced by the learned AGA, further submits that in a matrimonial case, there is a tendency of over implication of the in-laws by the wife and in this case, the materials on record squarely disclose the anxiety of the informant to implicate innocent persons, who are either distant in- laws or had nothing to do with the dispute between the informant and the accused persons and the learned S.D.J.M., Cuttack thereby, has passed the order taking cognizance of offences and issuing processes against those persons, who are primarily responsible for the overt act upon the petitioner. On the aforesaid submission, Mr. S.R. Mohapatra, learned counsel for the O.P.Nos.2 to 12 prays to dismiss the CRLMC. CRLMC No.1104 of 2017 Page 5 of 17 6. The main grievance of the petitioner in this case is that no notice was served upon the informant, while the Magistrate took cognizance of offences and summoned four accused persons leaving O.P.Nos.2 to 12, but such notice emanates for obvious reason for providing an opportunity of being heard to the informant who sets the machinery of investigation into motion by filing the FIR has a right to know the result of investigation. No doubt the informant has not being noticed in this case, but she after knowing the fact that the learned Magistrate had left out to summons O.P.Nos.2 to 12 had filed protest petition in the form of complaint against O.P.Nos.2 to 12 which was dropped by the learned S.D.J.M., Cuttack in the impugned order after hearing the learned counsel for the complainant and the learned Asst. Public Prosecutor. It is not in dispute that the learned S.D.J.M., Cuttack on receipt of charge sheet had not issued notice to the informant while taking CRLMC No.1104 of 2017 Page 6 of 17 cognizance of offences and issuing summons to the four accused persons leaving 11 accused persons, but the very purpose for which the notice is required to the informant has of course being exhausted by the informant in the form of filing complaint and getting an opportunity of being heard in the proceeding/complaint against O.P.Nos.2 to 12 by the Court and therefore, the purpose of notice to the informant has otherwise been fulfilled. 7. This Court is conscious of the principle as laid down by the Apex Court in Bhagwant Singh Vrs. Commissioner of Police and another; AIR 1985 SC 1285 wherein apart from observing that when the Magistrate to whom a report is forwarded U/S.173(2)(ii) decides not to take cognizance of offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and CRLMC No.1104 of 2017 Page 7 of 17 provide him an opportunity to be heard at the time of consideration of the report, the Apex court has further observed in Paragraph-5 as follows:- “5. The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Criminal P.C.,1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice lo the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe the that even Magistrate is not bound to give notice of the the hearing report to the injured person or to any relative of the deceased, he may, in the for consideration of though fixed CRLMC No.1104 of 2017 Page 8 of 17 exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report.” 8. The principle as has been laid down by the Apex Court in Bhagwant Singh(supra) for the situation that may arise before a Magistrate on receipt of report forwarded by the Officer-in-Charge of Police Station under sub-section (2)(i) of Section 173 is extracted as under:- report and “one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular persons and in such a case, the Magistrate may do one of three things: (1) he may accept take the cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding, or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he the may accept proceeding or (2) he may disagree with the the report and drop CRLMC No.1104 of 2017 Page 9 of 17 report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156.” It is, therefore, very clear that the Court receiving the police report U/S. 173 has three alternative options in the aforesaid two situations. One is when the police submits charge sheet against the accused persons and other is when the police submits final report on account of not finding any
Decision
14. In the result, the CRLMC stands dismissed on contest, but in the circumstance there is no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 17th of April, 2023/Subhasmita CRLMC No.1104 of 2017 Page 17 of 17