The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO. 4078 of 2023 (In the matter of application under Section 482 of the Criminal Procedure Code, 1973). Nrusingha Charan Pati and another … Petitioners -versus- State of Orissa and another … Opposite Parties For Petitioners : Mr. G.M. Rath, Advocate For Opposite Parties : Mrs. S.R. Sahoo, Mr. B. Pujari, Advocate (for O.P. No.2) CORAM: JUSTICE G. SATAPATHY DATE OF JUDGMENT : 19.10.2023 G. Satapathy, J. 1. This application U/S 482 Cr.P.C. by the petitioners seeks to quash the order passed on 23.08.2023 and 29.09.2019 by the learned S.D.J.M.(S), Cuttack in G.R. Case No.1818 of 2018 and consequently, the entire criminal proceeding arising there from. CRLMC No.4078 of 2023 Page 1 of 10 2. It is clarified that in the aforesaid case, cognizance was taken by an order passed on 29.09.2019, whereas discharge petition of the petitioners was rejected by the learned S.D.J.M.(S), Cuttack by an order passed on 23.08.2023, but the petitioners had also approached this Court for quashing of the cognizance order passed on 29.09.2019 in CRLMC No. 4045 of 2022, which was disposed of as withdrawn on 30.08.2023. It is, however, strange but true that the petitioners
Legal Reasoning
been quashed by this Court in the CRLMC No. 410 of 2020 and the petitioners stand on similar footing, but the learned trial Court by ignoring the aforesaid facts, had refused to discharge the petitioners in the aforesaid criminal case. Mr. Rath further submits that the criminal proceeding against the petitioners are nothing but an abuse of process of Court, since no CRLMC No. 4078 of 2023 Page 3 of 10 offence is made out against the petitioners and the ingredients of offences for which cognizance has been taken are prominently absent in the allegation against the petitioners. Mr. Rath accordingly, prays to quash the impugned orders and criminal proceeding against the petitioners. On the other hand, Mr. B. Pujari, learned counsel appearing for O.P. No.2 submits that although the petitioners had challenged the impugned order taking cognizance of offence and criminal proceeding against them, but the same having been turned down by this Court in CRLMC No. 4045 of 2022, which was disposed of as withdrawn by the petitioners, the petitioners cannot question the criminal proceeding and order taking cognizance of offences again. It is further submitted by Mr. Pujari that the petitioners although had challenged the criminal proceeding and order taking cognizance of offence in CRLMC No. 4045 of 2022, but they withdrew it on 30.08.2023, which was three months after quashing of the criminal proceeding against CRLMC No. 4078 of 2023 Page 4 of 10 their own daughter in CRLMC No. 410 of 2020 on 01.06.2023 and thereby, they having been aware of such order passed in CRLMC No. 410 of 2020 which was filed by their daughter for the selfsame relief, clearly intimating therein to the Court for having no objection with regard to continuance of the criminal proceeding against them and others, this Court quashed the proceeding against the daughter of the petitioners and the petitioners, thereby, cannot question the present criminal proceeding against them. Mr. B. Pujari, accordingly, prays to dismiss the present CRLMC. Learned counsel for the State, however, supporting the impugned order of rejection of discharge petition of the petitioners submits that there is no error in the impugned order warranting any interference by this Court in exercise of power U/S 482 Cr.P.C. 5. After having considered the rival submissions upon perusal of record, it appears that the F.I.R. was lodged against the petitioners and others on 25.09.2018 and after investigation, CRLMC No. 4078 of 2023 Page 5 of 10 accordingly, charge sheet was placed against the petitioners and others on 05.04.2019, whereupon cognizance of offence was taken on 29.09.2019, but in the first round of litigation, the petitioners have challenged the criminal proceeding and order taking cognizance of offences in the year 2022 in CRLMC No. 4045 of 2022, which was disposed of as withdrawn, but no liberty was granted to the petitioners to refile any application U/S 482 Cr.P.C. 6. The petitioners cannot deny of having knowledge of disposal of CRLMC No. 410 of 2020, which was filed by their daughter on 01.06.2023, but even after knowing the disposal of the aforesaid proceeding against their daughter, the petitioners in their wisdom did not continue to challenge the criminal proceeding against them and the order taking cognizance of offence by withdrawing their application U/S 482 of Cr.P.C. in CRLMC No. 4045 of 2022. 7. In quashing the criminal proceeding against the sister-in-law of the informant in CRLMC No. 410 CRLMC No. 4078 of 2023 Page 6 of 10 of 2020, this Court inter alia has observed the following:- 11. xx ”It is, however, made clear that the criminal proceeding against rest of the accused persons having been not challenged and the learned Senior Counsel in the course of argument has clearly submitted to have no objection, if the criminal proceeding continues against the rest of the accused persons, the criminal proceeding may continue against the rest of the accused persons”. 8. When can a Magistrate discharge the accused person(s) in a trial of warrant case has been provided in Section 239 of the Cr.P.C., which clearly lays down that if, upon considering the Police report and the documents sent with it U/S 173 of the Cr.P.C. and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharged the accused and record his reason for so doing. It therefore, clearly appears that while CRLMC No. 4078 of 2023 Page 7 of 10 discharging the accused, the Magistrate has to record his reasons, but refusing to discharge, the Magistrate may not record his reasons, however, he has to prima facie be satisfied in such situation that the charge against the accused is not groundless. It is also equally settled that at the time of consideration of charge, the Magistrate is not required to hold a mini trial to assess the probative value of the materials collected by the prosecution by way of roving and fishing enquiry. Law is also well settled that charge can be framed against the accused on grave suspicion, but not on mere suspicion. It is to be reminded that this Court has no occasion to go through the entire materials placed on record in the aforesaid case since the petitioners have only produced a photocopy of the F.I.R., charge sheet together with statement of witnesses, but while considering the discharge petition, the learned trial Court must have the privilege of going through the other materials such as documents and case diary. Besides, the learned counsel for the petitioners could CRLMC No. 4078 of 2023 Page 8 of 10 not point out any defect in the impugned order rejecting the discharge petition of the petitioners. 9. In the aforesaid facts and circumstance, especially when the petitioners have not approached the Court with clean hands willfully furnishing an incorrect certificate stating therein to have been granted the <liberty to refile= which was never granted to the petitioners and the petitioners having voluntarily relinquishing to challenge the order of cognizance of offence and the criminal proceeding by withdrawing their application U/S 482 Cr.P.C. in CRLMC No. 4045 of 2022 even after acquiring knowledge about the criminal proceeding against their daughter in the present case to have been quashed in CRLMC No. 410 of 2020 and keeping in view the reasoning assigned by the learned S.D.J.M.(S), Cuttack in the impugned order rejecting the discharge petition of the petitioners and on going through the materials made available to this Court by the petitioners, this Court does not find any error apparent in the impugned order passed by the CRLMC No. 4078 of 2023 Page 9 of 10 learned S.D.J.M.(S), Cuttack refusing to discharge the petitioners so as to warrant interference in the present CRLMC. 10. 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 19th day of October, 2023/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 19-Oct-2023 15:51:12 CRLMC No. 4078 of 2023 Page 10 of 10
Arguments
through their counsel Mr. Gouri Mohan Rath, who was the same counsel for the petitioners in CRLMC No. 4045 of 2022 have furnished the following certificate, <the aforesaid CRLMC was disposed of as withdrawn with liberty to refile as per order dated 30.08.2023= but in fact <no liberty was granted to the petitioners to refile= in the aforesaid order passed by this Court on 30.08.2023. 3. The facts are precise that petitioners are the father-in-law and mother-in-law of the informant- cum-bride and the petitioners were charge sheeted in CRLMC No. 4078 of 2023 Page 2 of 10 Cuttack Mahila P.S. Case No. 93 of 2018 for offence U/S 498-A/ 294/ 506/34 of the IPC read with Section 4 of D.P. Act and cognizance was taken by one of the impugned order passed on 29.09.2019 for the self same offences. The petitioners, however, file a discharge petition in the learned trial Court after disposal of CRLMC No. 4045 of 2022 and the same was rejected by way of the other impugned order passed on 23.08.2023. Being aggrieved with the aforesaid orders, the petitioners have approached this Court in the CRLMC. 4. In the course of hearing, Mr. G.M. Rath, learned counsel for the petitioners submits that the proceeding against the co-accused sister-in-law has