The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2886 of 2018 Soubhagya Mohapatra …. Petitioner Mr. S.K. Mishra, Sr. Advocate along with Ms. Babita Pattnaik, Advocate -versus- State of Odisha and another …. Opposite Parties Mr. A.P. Das, A.S.C. CRLMC No.2646 of 2019 Chandra Sekhar Mohapatra …. Petitioner Mr. S.K. Mishra, Sr. Advocate along with Ms. Babita Pattnaik, Advocate -versus- State of Odisha and another …. Opposite Parties Mr. A.P. Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 07.03.2024 12. 1. These matters are taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr. S.K. Mishra, learned Senior Counsel appearing for the Petitioner and learned Additional Standing Counsel for the State-Opposite Party. No one appears on behalf of the Opposite Party No.2. 3. CRLMC No.2886 of 2018 has been filed by the Petitioner with a prayer to quash the order dated 23.08.2018 passed by the // 2 // learned S.D.J.M., Nayagarh in G.R. Case No.177 of 2018 thereby taking cognizance of the offence under Section 498-A of the I.P.C. Further, the Petitioner has prayed for quashing of the entire proceeding since the same amounts to abuse of process of law at the instance of the Opposite Party No.2-Wife. 4. The factual backdrop of the case, in short, is that the present Petitioner, the husband of the Opposite Party No.2, initially filed C.P. No.615 of 2014 in the Court of Judge, Family Court, Bhubaneswar under Section 13 of the Hindu Marriage Act for dissolution of marriage on the ground of cruelty. Such application was subsequently transferred to the Court of Judge, Family Court, Khurda. Further, it appears that the Opposite Party No.2-wife has filed a D.V. Case against the Petitioner, which is pending in the Court of S.D.J.M., Nayagarh. 5. In C.P. No.615 of 2014, learned Judge, Family Court, Khurda has come to a conclusion that Opposite Party No.2-wife is guilty of cruelty and, as such, allowed the application filed by the Petitioner. Accordingly, the learned Judge, Family Court granted a decree of divorce dissolving the marriage between the Petitioner and the Opposite Party No.2 subject to payment of permanent alimony by the Petitioner to the Opposite Party No.2 and their son to the tune of Rs.31,00,000/-. 6. Learned counsel for the Petitioner contended that pursuant to the aforesaid decree of divorce, the Petitioner has deposited a substantial amount before the Judge, Family Court, however, the wife did not accepted the same. It was further contended that the Opposite Party No.2 has left her matrimonial house since 2014 // 3 // and serving at Nayagarh. Opposite Party No.2 had filed MATA No.39 of 2018 challenging a decree of divorce dated 13.04.2018, granted in C.P. No.615 of 2014, before this Court. At the time of admission of the aforesaid MATA case, this Court had stayed the said judgment, as a result of which, the Petitioner could not deposit the balance amount. He further contended that the husband has also filed a MATA No.36 of 2018 challenging the quantum of the permanent alimony and the custody of the child. 7. While the matter stood thus, the Opposite Party No.2- wife after grant of a decree of divorce filed a petition under Section-9 of the Hindu Marriage Act for restitution of conjugal rights bearing C.P. No.55 of 2018 in the Court of Judge, Family Court, Nayagarh wherein she had specifically alleged that the husband has left her since 27.05.2014. While this was the position, the Opposite Party No.2 initially filed 1.C.C. Case No.27 of 2018 on 23.3.2018 before the learned S.D.J.M., Nayagarh. The learned Magistrate forwarded the same under Section 156(3) of Cr.P.C. with a direction to register the same as an F.I.R. Accordingly, the F.I.R. No.667 dated 25.04.2018 was registered. 8. Learned Senior Counsel appearing for the Petitioner further contended that the Opposite Party No.2 has been repeatedly harassing the Petitioner and his family members by instituting different cases in different forums. The present case is one such instance where the entire family has been entangled in criminal case on the allegation of dowry torture punishable // 4 // under Section 498-A of I.P.C. In the F.I.R., it has been alleged that on 23.04.2018, the Opposite Party No.2 was assaulted by the Petitioner and that the Petitioner was getting ready for his second marriage to another lady. After conclusion of the inquiry, a charge sheet was submitted on 14.8.2018. Finally, the learned court below without proper application of mind mechanically took cognizance of the offence under Section 498-A of I.P.C. vide order dated 23.08.2018, which is a subject matter of challenge in the present application. 9. In course of his argument, learned Senior Counsel appearing for the Petitioner submitted that the parties pursuant to a divorce decree dated 12.02.2018 have separated. He further contended that although the divorce decree was challenged in an appeal before this Court by the Opposite Party No.2 by filing the MATA Case No.39 of 2018, he further contended that both the MATA Case No.36 of 2018 filed by the present Petitioner and MATA No.39 of 2018 filed by Opposite Party No.2 were taken up together for hearing by a Division Bench of this Court. By a common judgment dated 27.06.2023, both the MATA cases have been disposed of. 10. On perusal of the judgment of the Hon’ble Division Bench, this Court observes that in para-36 of the judgment, the Hon’ble Division Bench has affirmed the finding of the Judge, Family, Court, Khurda and, accordingly, the appeal in the shape of MATA No.39 of 2018 filed by the Opposite Party No.2-wife was dismissed. Thus, the decree of divorce granted by the Judge, Family Court, has attained finality, as a result of which, the // 5 // relationship between the Petitioner and the Opposite Party No.2 stands dissolved. So far the MATA No.36 of 2018 is concerned, the Hon’ble Division Bench in para-40 of the judgment partially modified that the decree passed by the Judge, Family Court and, accordingly, the Hon’ble Division Bench directed for grant of alimony to the Opposite Party No.2-wife to the tune of Rs.15 lakhs within three months from the date of decree. In the event of default, the said amount shall carry intrest at the rate of 9% from the date of decree of the family court. 11. So far the child is concerned, the Hon’ble Division Bench in para-40 of the judgment directed the Petitioner to pay a sum of Rs.25 lakhs for future maintenance and treatment of their son, who is admittedly suffering from Cerebral Palsy. Further it was directed that the aforesaid amount shall be paid within a period of six months from the date of decree. In the interregnum, the Petitioner shall pay a sum of Rs.15,000/- every month with effect from 01.07.2023 till the full amount of Rs.25 lakhs is deposited in the wife’s account or in the alternative the husband can invest the said amount in a term deposit in the name of the child with a standing instruction that the interest whatever would accrue quarterly basis will be withdrawn by the wife for providing due care to the child. 12. In the present application under Section 482 of Cr.P.C. which has been filed at the instance of the husband-Petitioner for quashing of the criminal proceeding as well as the order taking cognizance of the offence under Section 498-A of I.P.C., initially a notice was issued to the Opposite Party No.2 by // 6 // registered post with A.D. vide order dated 07.01.2019. However, such notice issued to Opposite Party No.2 returned back after the same was received by someone, namely, Pratima Misra, who is not Opposite Party No.2. Therefore, this Court vide order dated 20.02.2019 permitted the Petitioner to serve the notice on Opposite Party No.2 through an alternative mode, i.e. through paper publication. 13. Accordingly, notice was published in the local newspaper. A copy of the newspaper wherein the notice has been published has been kept on record. Therefore, this Court has no hesitation in coming to a conclusion that notice has been duly served on the Opposite Party No.2. Despite such valid service of notice through the alternative mode, none appeared on behalf of the Opposite Party No.2 although the matter was listed on several dates. Finally, on 29.02.2024 after hearing the learned Senior Counsel appearing for the Petitioner, this Court again adjourned the matter to today, i.e. 07.03.2024 granting last opportunity to Opposite Party No.2 to appear and contest the case. However, none appears on behalf of the Opposite Party No.2 in Court today. 14. Having heard the learned Senior Counsel appearing for the Petitioner and on a careful examination of the materials on record as well as the common judgment of a Division Bench of this Court dated 27.06.2023 whereby both the MATA Appeals filed by the Petitioner and the Opposite Party No.2 have been disposed of thereby confirming the divorce decree and suitably modifying the permanent alimony as has been granted by the // 7 // Judge, Family Court. 15. In the aforesaid factual background and keeping in view the detailed judgment dated 27th June, 2023 passed by the Hon’ble Division Bench of this Court, I am of the considered view that further continuance of the present proceeding would only amount to abuse of process of law. Therefore, by following the principles laid down by the Hon’ble Supreme Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., reported in 1992 AIR 604, this Court found that the present case is a fit case to be quashed in exercise of inherent power conferred upon this Court under Section 482 of Cr.P.C. 16. Accordingly, CRLMC No.2886 of 2018 is allowed. The impugned order of cognizance as well as the proceeding against the Petitioner in G.R. Case No.177 of 2018 on the file of the S.D.J.M., Nayagarh is hereby quashed. CRLMC No.2646 of 2019 17. This application has been filed under Section 482 of Cr.P.C. by the Petitioner, who is the brother of the Petitioner in CRLMC No.2886 of 2018, seeking quashing of the entire proceeding in 1CC No.93 of 2018 pending in the court of S.D.J.M., Nayagarh. 18. Learned Senior Counsel appearing for the Petitioner submitted that in CRLMC No.2886 of 2018, this Court has quashed the order taking cognizance as well as the proceeding. The present Petitioner is the brother-in-law of the accused, who had married the Opposite Party No.2-complainant. Learned Senior Counsel appearing for the Petitioner contended that this // 8 // 1CC case has been filed against the brother-in-law separately by making allegation of dowry torture as well as objecting to the narration of the Opposite Party No.2 as ex-wife in an anticipatory bail application which was filed before this Court by the Petitioner at the first instance, who was the husband of the Opposite Party No.2. 19. On perusal of the record, it appears that both the aforementioned application are interlinked and arise out of self- same facts and circumstances. Only difference is that in the first case, the Petitioner was the husband and in the second case, the Petitioner is the brother-in-law of the husband of the Opposite Party No.2. 20. In view of the factual analysis made in the previous judgment, this Court is also of the considered view that the further continuance of the present criminal case against the Petitioner would also amount to abuse of process of law. 21. Accordingly, CRLMC No.2646 of 2019 is allowed. The order of cognizance dated 18.05.2019 as well as the proceeding against the Petitioner arising out of 1.C.C. No.93 of 2018 on the file of the S.D.J.M., Nayagarh is hereby quashed. 22. Both the CRLMCs are disposed of accordingly. (A.K. Mohapatra ) Judge Debasis // 9 // Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 19-Mar-2024 17:40:42