Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK CRLMC No.3505 of 2016 In the matter of application under Section 482 of the Criminal Procedure Code, 1973. --------------- Avaya Kumar Behera and others ..… Petitioners State of Orissa and another ….. Opp. Parties -Versus- For Petitioners : Mr. P. Dash, Advocate For Opp. Parties : Mr. S.R. Roul, A.S.C. P R E S E N T: HONOURABLE MR. JUSTICE G. SATAPATHY Date of hearing:08.02.2023, Date of judgment:24.03.2023 G.SATAPATHY, J. Petitioners being the husband and in-laws have sought for a prayer in this CRLMC to quash the order passed on 16.01.2016 by learned S.D.J.M., Bhubaneswar in C.T. Case No. 551 of 2015 and the entire criminal proceeding arising thereon as initiated by the Informant- wife. // 2 // 2.
Facts
Facts in background arise out of an F.I.R. in Mahila P.S. Case No. 59 of 2015 lodged by the Informant-wife alleging therein against the Petitioners for commission of offences U/Ss. 498(A)/323/294/506/34 of IPC, r/w Sec. 4 D.P. Act and Sec. 3 of S.C./S.T. (P.A.) Act vividly and elaborately describing the torture and harassment meted to her by the Petitioners for demand of dowry. The learned S.D.J.M., Bhubaneswar, on receipt of charge-sheet against the Petitioners by way of an order passed on 16.01.2016 took cognizance of offences U/Ss.498-A/323/294/506/34 of IPC, r/w Sec. 4 D.P. Act and issued process against the Petitioners by way of summoning them in this aforesaid case. Hence, this CRLMC. 3.
Legal Reasoning
circumstance prima facie disclose the ingredient of mental cruelty. The Informant in her statement had also alleged against her mother-in-law for spitting on her face which prima facie gives out the nature of harassment or cruelty. 6. The Petitioners, however, take the plea of omnibus allegation for seeking in the relief of quashing the criminal proceeding initiated against them by the Informant by relying upon the decision in Kahkashan Kausar @ Sonam & others Vrs. State of Bihar and others; Criminal Appeal No.195 of 2022 decided on // 6 // 8th February, 2022, but a careful perusal of the record would never discloses this case to be a case of omnibus allegation against the petitioners, no matter learned counsel for the Petitioners rely upon the order passed by this Court in ABLAPL No. 265 of 2015 to contend the plea of omnibus allegation raised against the in-laws. Law is no more res integra that observation made in the course of grant of bail, especially pre-arrest bail in the course of investigation would not have any binding precedent for quashing the criminal proceeding, when such observation does not reveal about the document or statement from which the conclusion is drawn. Learned counsel for the Petitioners, however, relies upon Paragraph-19 of the case Kahkashan Kausar (supra), but in such paragraph, the Apex Court has taken into consideration about general allegation, like “all accused harassed her mentally and threatened her of terminating of pregnancy” and finding no specific and distinct allegations to have been made out against the Petitioners therein, the proceeding against in- laws has been directed to be quashed. However, in this // 7 // case, the FIR by the Informant itself reveals vividly about the allegation leveled against the Petitioners which is further reiterated by some of the witnesses. Thus, the present case cannot be considered to be akin to the case relied upon by the Petitioners. 7. In Rajesh Sharma and others Vrs. State of Uttar Pradesh and another; (2018) 10 SCC 472 which was relied upon by the Petitioners, the Apex Court in Paragraph-14 observes that:- “At the time of filing of the complaint, implication and consequences are not visualized. At times of such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.” This Court has no slightest of hesitation to accept the aforesaid situation and also acknowledges that the simplest way to harass in matrimonial cases is to get the husband and his relatives arrested under the provisions of law and in a quite number of cases, even bedridden grandfather and grandmother of husbands, their sisters living abroad for decades are also being // 8 // arrested. However, at the same time, the demons of dowry are no less in the society and that is why the offence of 498-A has been incorporated in the IPC subsequently by way of amendment. Experience also shows that harassment and cruelty are meted out to the bride for coercing her family to meet the un-lawful demand of dowry by the husband and his relatives. Therefore, misuse of Section 498-A cannot be weighed in the same scale of genuine case. Justice always demands not to stifle genuine cases which are against public policy. 8. This Court is also conscious of the fact that due to the rampant misuse of the penal provision of Section 498-A of IPC, the Apex Court in Arnesh Kumar Vrs. State of Bihar and another; (2014) 8 SCC 273 has passed a slew of directions for matters relating to arrest of persons accused of offences punishable up to seven years, while clarifying that no arrest be made in a routine manner without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. It is, of course, true that genuine cases of // 9 // dowry harassments are matters of serious concern, but exaggerated version of small incident should be considered appropriately, but not by taking the recourse of criminal complaints. 9. In view of the discussion made hereinabove and a careful conspectus of the material placed on record and taking into consideration the averments made in the FIR together with statement of witnesses as produced by the Petitioners, it cannot be said that the allegation on record refers to some general and omnibus allegation against the Petitioners, rather their reveals specific allegations against each of the Petitioners for some acts which prima facie constitute harassment or cruelty, of course, the same is subject to proof, but at the stage, the allegations against the petitioners cannot be considered as omnibus allegation to stifle the criminal prosecution against the Petitioners which is of course to be considered by the learned trial Court in the course of trial by examining the veracity of the allegation on the pedestal of proof beyond all reasonable doubts. // 10 // 10. In the result, the CRLMC stands dismissed on contest, but in the circumstance there is no order as to costs. JUDGE …………….………….. G.SATAPATHY, Orissa High Court, Cuttack The 24th March, 2023, Priyajit
Arguments
In the course of hearing of CRLMC, Mr. P. Dash, learned counsel for the Petitioners submits inter alia that there is a lot of discrepancies in the statement of parents of the Informant with the averments made in the F.I.R. It is also contended that offence U/S. 498(A) // 3 // is never made out against the Petitioners since the complainant had never stayed with her in-laws, rather the father of the Petitioner had helped her by giving money and the Informant by wielding a weapon of humiliation in the form of FIR has tried to harass the Petitioners by making omnibus allegation against the Petitioners which were in fact taken note of by this Court while granting pre-arrest bail to the Petitioners, but the learned S.D.J.M., Bhubaneswar without applying his judicial mind took cognizance of offences by ignoring the omnibus allegations made by the Informant and in addition, the marriage of the Informant with Petitioner No.3-cum-husband had already been dissolved by way of decree passed by learned Judge, Family Court, Bhubaneswar in a Civil Proceeding wherein the Informant had admitted that she had never visited the house of the Petitioners. While praying for the relief in this CRLMC, learned counsel for the Petitioners has also relied upon a number of judgments. // 4 // 4. In reply, Mr. S.R. Roul, learned A.S.C., however, by taking this Court through the averments made in the FIR and statement of witnesses submits that there are enough materials against the Petitioners to constitute the offence alleged against them and the present proceeding merits no consideration since there is prima facie allegation against the Petitioners for commission of such offences. It is, accordingly, prayed by learned A.S.C. to dismiss the CRLMC. 5. A careful and mindful consideration of the rival submissions, it goes without any dispute that the Petitioners have prayed for inter-alia quashing of the criminal proceeding initiated against them on the ground that the allegation leveled against them are omnibus in nature and there is no specific allegation against any of the Petitioners for the offences alleged against them, but a careful reading of the FIR and statement of witness, there is hardly any doubt that the Informant has lodged an FIR vividly describing the details of the allegations made by her against the Petitioners. Sec. 498-A of IPC // 5 // was incorporated in the statute with a laudable object of punishing the erring husband and his relatives for subjecting the wife to cruelty and harassment. Cruelty and harassment may not be always in physical form, but can be inflicted by way of taunting words and acts which amount to mental cruelty. The caste of the Informant-wife was never disputed by the Petitioners and there is allegations against the parents-in-laws-cum-Petitioner Nos. 1 and 2 for not accepting/recognizing the Informant as the wife of their son for her caste which in the